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PETITIONER: VINOD GURUDAS RAIKAR

       Vs.

RESPONDENT: NATIONAL INSURANCE CO. LTD. AND ORS.

DATE OF JUDGMENT06/09/1991

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 AIR 2156            1991 SCR  (3) 912  1991 SCC  (4) 333        JT 1991 (3)   660  1991 SCALE  (2)493

ACT:    Motor Vehicles Act, 1939/1988: Section  110-A/166--Acci- dent  occurred  when the old Act was in  force--Claim  filed after the new Act came into being---Delay beyond the  stipu- lated  period  of  six  months-Condonation  of--Whether  the provisions   under   the   old   Act   or   the   new    Act applicable--Clause  6  of General Clauses  Act--Whether  at- tracted.

HEADNOTE:     The  appellant  was  injured  in  a  road  accident   on 22.1.1989,  and  a  claim petition was  filed  belatedly  on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal.     Meanwhile, the Motor Vehicles Act, 1939 was repealed and the  Motor  Vehicles Act, 1988 came into force  with  effect from 1.7.1989. The Claims Tribunal held that in view of  the provisions of sub-section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed  the  claim. Before the High Court  the  appellant challenged the Tribunal’s decision, but was not  successful. Thereafter, he preferred this appeal by special leave.     On behalf of the appellant, it was contended that  since the  accident took place when the old Act was in force,  the proceeding before the Accident Claims Tribunal must be  held to be governed by the old Act under which the appellant  had a  right to file a claim petition even more than six  months after the expiry of the period of limitation and this  right is preserved by reason of the provisions of Section 6 of the General Clauses Act, 1897; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court,     HELD:  1. ’The High Court was right in taking  the  view that  the case was covered by the new Act, and delay  for  a longer period than six months could not be condoned. [920D]     2.  The  claim to compensation which the  appellant  was entitled  to,  by reason of the accident was  certainly  en- forceable as a right. So far the 913 period  of limitation for commencing a legal  proceeding  is concerned,  it is adjectival in nature, and has to  be  gov-

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erned  by the new Act--subject to two conditions.  If  under the  repealing  Act the remedy suddenly stands barred  as  a result of a shorter period of limitation, the same cannot be held  to  govern the case, otherwise the result will  be  to deprive the suitor of an accrued right. The second exception is  where the new enactment leaves the claimant with such  a short  period for commencing the legal proceeding so  as  to make it impractical for him to avail of the remedy. [916F-G]     New  India  Insurance  Co. Ltd. v.  Smt.  Shanti  Misra, [1976] 2 SCR 266, relied on.     3.  There is a vital difference between  an  application claiming  compensation and a prayer to condone the delay  in filing such an application. Liberty to apply for a right  is not in itself an accrued right or privilege. [917E]     Isha  Valimohammad & Anr. v. Haji Gulam Mohammad &  Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons v.  Firm Hansraj Nathuram, [1971] 1 SCC 721, relied on.     Director  of  Public Works and Anr. v. Ho  Po  Sang  and Ors.,  [1961]  2 AER 721 and Abbott v.  Minister  of  Lands, [1895] AC 425, referred to.     4.  In  the instant case the period  of  limitation  for lodging  the claim under the old as well as the new Act  was the  same viz., six months which expired three  weeks  after coming into force of the new Act. It was open to the  appel- lant  to file his claim within this period or even later  by 22.7.1989  with a prayer to condone the delay. His right  to claim compensation was not affected at all by the  substitu- tion of one Act with another. Since the period of limitation remained  the  same there was no question of  the  appellant being taken by surprise. So far the question of  condonation of  six months delay was concerned, there was no  charge  in the  position under the new Act. The right or  privilege  to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an  enact- ment  presupposes  applicability of the enactment  when  the need  arises to take its benefit. The occasion to  take  the benefit of the provision for condonation of delay in  filing the claim arose only after repeal of the old law.  Obviously the ground for condonation set up as ’sufficient cause’ also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be  avail- able simply because the cause of action for the claim  arose before repeal. ’Sufficient cause’ as a ground of condonation of  delay  in filing the claim is distinct  from  ‘cause  of action’ for the claim itself. The question of condonation of delay must, therefore, be governed by the new law.  [919F-H; A-C 920A]     5.  Clause  (e) of Section 6 of General Clauses  Act  is also not attracted because, by the enactment of the new law, viz.,  Motor Vehicles Act, 1988 the remedy of the  appellant has  not  been affected at all. Appellant’s right  to  claim compensation  by filing the claim within the same period  of limitation has been preserved. And there was no  application for condonation of delay in a proceeding pending at the time of  repeal so as to allow him to claim any privilege  avail- able under the old Act. [916C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3504  of 1991.     From.  the  Judgment and Order dated  5.10.1990  of  the

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Bombay High Court in W.P. No. 210 of 1990. Dhruv Mehta, S.K. Mehta and Aman Vachher for the Appellants. Jitender Sharma for the Respondents. The Judgment of the Court was delivered by SHARMA, J. Special leave is granted.     2. The appellant was injured in a road accident and  his claim petition has been dismissed as being barred by limita- tion. The accident took place on 22.1.1989. The Motor  Vehi- cles  Act, 1939 was repealed by section 217(1) of the  Motor Vehicles  Act, 1988 which came into force on  1.7.1989.  The period of limitation for filing a claim petition both  under the  old  Act and the new Act being six  months  expired  on 22.7.1989. The claim petition of the appellant, however, was filed belatedly on 15.3.1990 with ,a prayer for  condonation of delay. The Accident Claims Tribunal held that in view  of the  provisions of subsection (3) of section 166 of the  new Motor Vehicles Act, the delay of more than six months  could not be condoned. The application was accordingly  dismissed. The appellant unsuccessfully challenged the decision  before the High Court. 915     3.  It has been contended that since the  accident  took place  when  the old Motor Vehicles Act was  in  force,  the proceeding before the Accident Claims Tribunal must be  held to  be governed by the old Act, and his petition  cannot  be dismissed on the basis of the provisions in the new Act.     4. The period of limitation for filing a claim  petition both  under the old Act and the new Act is six  months  from the  date of the accident. The difference in the  two  Acts, which  is relevant in the present case, is in regard to  the provisions relating to condonation of delay. In view of  the proviso  to sub-section (3) of section 166 of the  new  Act, the  maximum  period of delay which can be condoned  is  six months,  which expired on 22.1.1990. If the new Act is  held to  be applicable, the appellant’s petition filed  in  March had  to be dismissed. The case of the appellant is that  the accident  having  taken place before the new Act  came  into force,  the  proceeding is governed by the  old  Act,  where there  was no such restriction as in the new Act. The  ques- tion  is as to which Act is applicable; the new Act  or  the old.     5.  It  has been contended by the learned  counsel  that under the old Act the appellant had a right to file a  claim petition  even more than six months after the expiry of  the period of limitation, and this right is preserved by  reason of  the provisions of section 6 of the General Clauses  Act, 1897.  Reliance has been placed on clauses (c) and (e).  The relevant portion of the section reads thus:               "6.  Effect of repeal-Where this Act,  or  any               Central  Act  or  Regulation  made  after  the               commencement  of this Act, repeals any  enact-               ment  hitherto made or hereafter to  be  made,               then,  unless a different  intention  appears,               the repeal shall not-               (a)........               (b)........               (c) affect any right, privilege, obligation or               liability acquired, accrued or incurred  under               any enactment so repealed;               or               (e) affect any investigation, legal proceeding               or remedy in               916               respect of any such right, privilege,  obliga-               tion,  liability, penalty, forfeiture or  pun-

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             ishment as aforesaid;               and  any such investigation, legal  proceeding               or  remedy  may be  instituted,  continued  or               enforced, and any such penalty, forfeiture  or               punishment may be imposed as if the  repeating               Act or Regulation had not been passed." We are unable to agree. Clause (e) is not attracted because, by the enactment of the new law the remedy of the  appellant has  not been affected at all. His right to claim  compensa- tion  by filing the claim within the same period of  limita- tion  has been preserved. And there was no  application  for condonation of delay in a proceeding pending at the time  of repeal  so as to allow him to claim any privilege  available under the old Act. So far the applicability of clause (c) is concerned, the question depends on whether the appellant had got an accrued right or privilege under the old law which he could  not have been deprived of by the  repealing  legisla- tion.     6.  Even independent of the General Clauses Act,  it  is firmly established that unless a new statute expressly or by necessary implication says so, it will not be presumed  that it deprives a person of an accrued right. On the other hand, a law which is procedural in nature, and does not affect the rights, has to be held to be retrospectively applicable. The question  is whether the appellant has been deprived  of  an accrued right or privilege in the present case     7.  It is true that the appellant earlier could file  an application  even more than six months after the  expiry  of the  period of limitation, but can this be treated to  be  a right which the appellant had acquired. The answer is in the negative. The claim to compensation which the appellant  was entitled  to,  by reason of the accident was  certainly  en- forceable  as a right. So far the period of  limitation  for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act-subject  to two,  conditions.  If  under the repealing  Act  the  remedy suddenly  stands barred as a result of a shorter  period  of limitation,  the  same cannot be held to  govern  the  case, otherwise  the  result will be to deprive the suitor  of  an accrued  right.      The second exception is where  the  new enactment  leaves the claimant with such a short period  for commencing the legal proceeding so as to make it impractical for  him  to avail of the remedy. This  principle  has  been followed by this Court in many cases and by way of illustra- tion  we would like to mention New India Insurance Co.  Ltd. v. Smt. Shanti 917 Misra,  [1976] 2 SCR 266. The husband of the  respondent  in that case died in an accident in 1966. A period of two years was  available to the respondent for instituting a suit  for recovery  of  damages. In March, 1967  the  Claims  Tribunal under  section 110 of the Motor Vehicles Act, 1939 was  con- stituted,  barring the jurisdiction of the civil  court  and prescribing  60  days as the period of limitation.  The  re- spondent  filed the application in July, 1967. It  was  held that  not  having filed a suit before March, 1967  the  only remedy of the respondent was by way of an application before the Tribunal. So far the period of limitation was concerned, it was observed that a new law of limitation providing for a shorter-period cannot certainly extinguish a vested right of action.  In view of the change of the law it was  held  that the  application  could be filed within  a  reasonable  time after  the constitution of the Tribunal; and, that the  time of about four months taken by the respondent in  approaching the  Tribunal  after its constitution, could be held  to  be

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either  reasonable  time or the delay of  about  two  months could be condoned under the proviso.to section 110A(3).     8.  The learned counsel strenuously contended  that  the present  case  must be considered as one  where  an  accrued right  has  been  affected, because the option  to  move  an application for condonation of delay belatedly filed  should be  treated as a right. This cannot be accepted. There is  a vital  difference between an application claiming  compensa- tion  and  a prayer to condone the delay in filing  such  an application. Liberty to apply for a right is not in it  selt an  accrued right or privilege. To illustrate the point,  we may refer to some cases.     9. In Director of Public Works and Another v. Ho Po Sang and  Others, [1961] 2 AER 721 a Crown lessee in  respect  of certain  premises  which were in occupation of  tenants  and sub-tenants  entered  into an agreement with  the  appellant Director for developing the site by erecting buildings.  The erection of the new buildings necessitated the demolition of the existing buildings. Under the provisions of an Ordinance a Crown lessee was entitled to recover vacant possession  of the  premises if he obtained a re-building certificate  from the  Director.  On  the application of the  Crown  lessee  a proceeding for grant of the certificate was started and  the Director issued a notice under the Ordinance indicating  his intention  to grant the re-building certificate. Before  the certificate could be finally issued, the relevant  provision of  the  Ordinance entitling the lessee  to  recover  vacant possession of the premises was repealed. The lessee  claimed the right to vacant possession by relying on certain  provi- sions dealing with rules of interpretation similar in  terms to section 6 of our General Clauses Act. The plea 918 was  rejected  on the ground that although  the  lessee  was entitled to make an application for vacant possession before the Ordinance was repealed, it did not amount to an  accrued right  or  privilege, capable of being preserved  after  the repeal  of the Ordinance, as the right was dependent on  the actual issuance of a certificate.     In  an  earlier  case of Abbott v.  Minister  of  Lands, [1895]  AC 425 the appellant was entitled to make  purchases of  Crown  land adjoining his holding by virtue  of  certain statutory  provisions, which were repealed before  he  could effectively enforce his right. Besides raising other grounds in  respect of his claim, he argued that the right which  he had  under the repealed enactment was a "right accrued"  and of which he could not be deprived of by the repeal.  Reject- ing  the plea, it was observed that the mere right  existing in  a  class of persons to take advantage of  an  enactment, cannot  in absence of any act done by the  claimant  towards availing himself of that right be deemed a "right accrued".     10. In Isha Valimohammad & Anr. v. Haji Gulam Mohammad & Haji  Dada Trust, [1975] 1 SCR 720 the respondents  let  out the  premises  in question to the appellants in  1951  in  a place where, by the Saurashtra Rent Control Act, sub-letting by  a  tenant  was prohibited. The  appellants  sub-let  the premises  at a time when the Act was in force. In  1963  the Act  was repealed and the Bombay Rent Act was made  applica- ble, under which there was no such prohibition against  sub- letting. In a suit for eviction filed subsequently the  High Court  assumed that a notice under the Transfer of  Property Act  was  necessary to terminate the tenancy which  had  not been  done before the repeal, but still held that since  the respondents  had  an  accrued right within  the  meaning  of section  51 of the Bombay Rent Act (the  provisions  whereof were  similar to those in section 6 of the  General  Clauses

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Act)  the respondents were entitled to a decree. The  decree was  confirmed  by the Supreme Court but not  on  the  above ground. This Court held that a notice under the Transfer  of Properties  Act was not necessary and in that view  it  con- firmed  the  decree of the High Court. With respect  to  the finding of the High Court regarding the respondents  acquir- ing  an accrued right even on the assumption that  a  notice under  the Transfer of Properties Act was necessary, it  was held  that the right of a landlord to recover possession  is not  an accrued right before the issue of a notice if  under any  law  it  was necessary for the landlord  to  issue  the notice  to  determine the tenancy. The principle  laid  down there supports our view. 919     A  question, though not identical, but somewhat  similar Came  up for consideration by this Court in Lalji  Raja  and Sons v. Firm Hansraj Nathuram, [1971] 1 SCC 721. The  appel- lants had obtained a money decree against the respondents in a  court in West Bengal in 1949, and got it transferred  for execution to the court at Morena in the then State of Madhya Bharat.  On the respondents objection on the ground of  lack of jurisdiction the Madhya Bharat Court dismissed the execu- tion  petition. The matter was thereafter taken to the  High Court and this Court, but without any success. The  decision partly  rested on the ground that the Indian Code  of  Civil Procedure was not applicable to the State of Madhya  Bharat. Subsequently  the Code was extended tO that area  which  had become  a  part of the State of Madhya Pradesh and  a  fresh order  was passed by the West Bengal Court transferring  the decree to Morena Court. The judgment debtors challenged  the jurisdiction  of  the court on various grounds. One  of  the points which was urged was that in view of section 20 clause (b) of the Code of Civil Procedure (amendment) Act, 1951  by which  the  Code  was extended to Madhya  Bharat  and  other areas,  the Judgment debtors’ right to resist the  execution was  protected.  Reliance was placed on the proviso  to  the repeal clause in the section which declared that the  repeal would not affect any fight, privilege, obligation or liabil- ity acquired accrued or incurred under the repealed  clause. The judgment debtors objection was over-ruled by this Court. Relying  on  several  English decisions  including  that  in Abbott v. Minister for Lands, [1895] AC 425, it was observed that  the mere right existing at the date of the  repeal  of statute,  to  take advantage of provisions  of  the  statute repealed is not a "right accrued" within the meaning of  the usual saving clause.     11.  In the case before us the period of limitation  for lodging  the claim under the old as well as the new Act  was same  six months which expired three weeks after  coming  in force  of the new Act. It was open to the appellant to  file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim  cOmpensa- tion was not affected at all by the substitution of one  Act with  another. Since the period of limitation  remained  the same  there was no question of the appellant being taken  by surprise.  So far the question of condonation of six  months delay  was  concerned, there was no change in  the  position under  the new Act. In this background the appellant’s  fur- ther  default has to be considered. If in a given  case  the accident had taken place more than a year before the new Act coming  in  force and the claimant had  actually  filed  his petition  while the old Act was in force but after a  period of one year, the position could be different. Having actual- ly initiated the proceeding when the old Act 920

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covered the field a claimant could say that his right  which had  accrued  on filing of the petition could not  be  taken away. The present case is different. The right or  privilege to claim benefit of a provision for condonation of delay can be  governed only by the law in force at the time of  delay. Even  the hope or expectation of getting the benefit  of  an enactment  presupposes applicability of the  enactment  when the need arises to take its benefit. In the present case the occasion  to take the benefit of the provision for  condona- tion of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up  as ’sufficient  cause’ also relates to the time after  the  re- peal. The benefit of the repealed law could not,  therefore, be  available  simply because the cause of  action  for  the claim arose before repeal. ’Sufficient cause’ as a ground of condonation  of delay in filing the claim is  distinct  from ’cause  of  action’ for the claim itself.  The  question  of condonation of delay must, therefore, be governed by the new law.  We accordingly hold that the High Court was  right  in its view that the case was covered by the new Act, and delay for  a longer period than six months could not be  condoned. The  appeal is dismissed, but in the circumstances,  without costs. G.N.                                            Appeal  dis- missed. 921