Manager IFFCO Tokio General Insurance Co. Ltd. v. Sangeetha Vinod and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 11TH DAY OF APRIL 2017/21ST CHAITHRA, 1939** **MACA.No. 2618 of 2015 ()** **------------------------AGAINST THE JUDGMENT IN OPMV.259/2013 of MACT PALA DATED 30-05-2015** **APPELLANT(S)/R3:** **-----------------THE MANAGER IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED IFFCO BHAVAN, THOTTAKKAT ROAD, KOCHI-682 011.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR** **RESPONDENT(S)/PETITIONER AND R1,2:** **-----------------------------------** **1. SANGEETHA VINOD W/O.VINOD, MANIMALA HOUSE, EDANADU P.O. PIN-686 574.** **2. VINOD S/O.MOHANAN, MANIMALA HOUSE, EDANADU P.O. PIN-686574.** **3. DILEEP KUMAR S/O.NARAYANAN NAIR, KARAMALAPURATHU, CHEMPILAVU P.O. KIDANGOOR, PALA, PIN-686584.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------M.A.C.A.No. 2618 of 2015 ---------------------------------------------Dated this the 11[th] day of April, 2017 ## **JUDGMENT** This appeal is preferred by the insurer against the award in O.P.(MV) No.259/2013 of Motor Accidents Claims Tribunal, Pala. The above claim petition was filed by the first respondent in this appeal for compensation to the bodily injuries sustained to her in a motor accident. Her case is that on 24.07.2009 at 2.30 p.m., while she was riding as a pillion rider in a motor cycle KL-35/4900 ridden by the 2[nd] respondent through Valavoor-Chakkampuzha public road, when it reached at Alunkal junction, the front wheel of the scooter lifted from the road, as a result, she fell down and sustained serious injuries. She was removed to the hospital. The rider and owner of the scooter were set ex parte in the M.A.C.A.No.2618/2015 2 tribunal. 2. The appellant resisted the claim petition on the ground that there was inordinate delay in preferring the claim petition and no bona fides in preferring such a petition. The rider of the motorcycle was her husband, who is the close relative of the owner of the vehicle. There was collusion between them in preferring the petition. In the discharge summary, it was stated that she fell down from the motor cycle due to giddiness and no wound certificate was produced in the tribunal. In the circumstances, the above petition was filed in the tribunal with malafide intention. 3. To prove the averment in the claim petition, the injured examined PW1 and PW2 and her documents were marked as Exts.A1 to A3. The appellant insurance company produced Ext.B1 report of the investigating officer. The learned tribunal awarded a sum of 52,250/- with 9%₹ interest with proportionate cost. Being aggrieved by that, the appellant preferred this appeal. M.A.C.A.No.2618/2015 3 4. According to Section 134 of the Motor Vehicles Act 1980 [for short M.V. Act], when any person is injured or any property of third party is damaged as a result of an accident in which the motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall secure medical attention to the injured person by conveying him to the nearest hospital and report the circumstances of the occurrence at the nearest police station and also to give information in writing to the insurer. According to Section 158(4) of the Motor Vehicles Act, the owner of a motor vehicle shall give such information as he may be required by or on behalf of a police officer empowered in this behalf by the State Government to give for the purpose of determining whether the vehicle was or was not being driven in contravention of Section 146 of M.V. Act and on any occasion when the driver was required under this section immediately after the incident. Moreover, as soon as any information with regard to the accident involving death or M.A.C.A.No.2618/2015 4 bodily injury to any person is occurred, there is responsibility to report the matter to the Police Officer and within thirty days it has to be forwarded to the claims tribunal having the jurisdiction also. No such information was given to the Police Officer or to the insurer. 5. The accident had occurred on 24.7.2009 and the claim petition was filed on 28.5.2013 after four years of the accident. The injured was examined as PW1 and her documents were marked as Exts.A1 to A3. Ext.A1 is the discharge card,which shows that she sustained fracture of tooth 1, 2 and 3 on the left upper side, fracture of symphysis and fracture of angle of mandible left. But the alleged cause of injury was not stated in Ext.A1. Ext.A2 is the discharge summary, in which it is recorded that the _“alleged RTA on 24.7.2009 at 2.30 p.m. at Valavoor while travelling as a pinseat traveller in Bike with her husband, fell down from bike due to giddiness - sustained injuries, fracture mandible. No h/o LOC, she was conscious, oriented, No vomitting injury_ M.A.C.A.No.2618/2015 5 _noted (1) injury with lacerated wounds on lower jaw, both wrists, RT foot with tenderness of jaw mandible. Cracked incisor teeth. Lacerated wound on lower jaw 4 x 1.2 cm. Multiple abrasion on both wrists ® foot. Oral bleeding, X-ray skull, Fracture crown 327, fracture presymphysis- chin - Fracture angle of LT mandible, Maxilla facial surgeon managed this cae ORIF wiring jaw done, the injury is grievous. She is discharged on 31/7/2009.”_ The hospital authorities also failed to report the matter to the nearest police station. The reason for non-reporting the matter was also not mentioned in the discharge summary. Ext.A3 is the medical bill. In view of Sections 134, 166(4) and 158 (6) of the M.V. Act, the matter has to be informed to the police station and to the insurer, but no such compliance has been made in this matter. The learned tribunal failed to consider the above statutory requirement and awarded compensation. 6. The question of delay was not considered by the M.A.C.A.No.2618/2015 6 tribunal. Three Bench Judge of the Apex Court in _**Purohit and company (M/s.)**_ v. _**Khatoonbee and another**_ [2017 (2) KHC 102 (SC)] discussed the principle of period of limitation in presenting the claim petition. Apex Court in the above decision held that it cannot be said that a claim for compensation can be presented at any juncture, after the accident had taken place. Paragraphs 6 and 7 of the decision read as follows: “6. It would however, be pertinent to mention, that the period of limitation provided under Section 166(3) aforementioned was completely done away with, with effect from14/11/1994, as Section 166(3) came to be deleted, from the Motor Vehicles Act, 1988. The question which has arisen for consideration, in the instant appeal, is the consequence of the omission of sub-section (3) of Section 166 of the 1988 Act. Does the above omission have the effect of allowing a claimant, to file a claim application, at any time, and whenever he chooses? Even after a decade! 7. The contention of the respondents-claimants to overcome the period of limitation was based on two judgments. Firstly, it is based on the judgment in Dhannalal v. D.P. Vijayvargiya [1996 KHC 309], wherein, this Court had held as under: '7. In this background, now it has to be examined as to what is the effect of omission of subsection (3) of Section 166 of the Act. From the Amending Act it does not appear that the said subsection (3) has been deleted retrospectively. But at the same time, there is nothing in the Amending Act to M.A.C.A.No.2618/2015 7 show that benefit of deletion of sub-section (3) of section 166 is not to be extended to pending claim petitions where a plea of limitation has been raised. The effect of deletion of sub-section (3) from Section 166 of the Act can be tested by an illustration. Suppose an accident had taken place two years before 14/11/1994 when sub-section (3) was omitted from Section 166. For one reason or the other no claim petition had been filed by the victim or the heirs of the victim till 14/11/1994. Can a claim petition be not filed after 14/11/1994 in respect of such accident? Whether a claim petition filed after 14/11/1994 can be rejected by the Tribunal on the ground of limitation saying that the period of twelve months which had been prescribed when sub-section (3) of Section 166 was in force having expired the right to prefer the claim petition had been extinguished and shall not be revived after deletin of sub-section (3) of Section 166 w.e.f. 14/11/1994? According to us, the answer should be in negative. When sub-section (3) of Section 166 has been omitted, then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place. The claim petition cannot be thrown out on the groudn that such claim petitions were barred by time when sub-section (3) of Section 166 was in force. It need not be impressed that Parliament from time to time has introduced amendments in the old Act as well as in the new Act in order to protect the interests of the victims of the accidents and their heirs if the victims die. One such amendment has been introduced in the Act by the aforesaid Amendment Act 54 of 1994 by substituting sub-section (6) of Section 158 which provides: '158. (6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police Officer, the officer in charge of the Police Station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer and M.A.C.A.No.2618/2015 8 where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer.” In view of sub-section (6) of Section 158 of the Act the officer in-charge of the police station is enjoined to forward a copy of information/report regarding the accident to the Tribunal having jurisdiction. A copy thereof has also to be forwarded to the insurer concerned. It also requires that where a copy is made available to the owner of the vehicle, he shall within thirty days of receipt of such copy forward the same to the Claims Tribunal and insurer. In this background, the deletion of sub-section (3) from Section 166 should be given full effect so that the object of deletion of the said section by Parliament is not defeated. If a victim of the accident or heirs of the deceased victim can prefer claim for compensation although not being preferred earlier because of the expiry of the period of limitation prescribed, how the victim or the heirs of the deceased shall be in a worse position if the question of condonation of delay in filing the claim petition is pending either before the Tribunal, the High Court or the Supreme Court. The present appeal is one such case. The appellant has been pursuing from the Tribunal to this Court. His right to get compensation in connection with the accident in question is being resisted by the respondents on the ground of delay in filing the same. If he had not filed any petition for claim till 14/11/1994 in respect of the accident which took place on 04/12/1990, view of the Amending Act he became entitled to file such claim petition, the period of limitation having been deleted, the claim petition which has been filed and is being pursued upto this Court cannot be thrown out on the ground of limitation.” (emphasis is ours) The second judgment on which reliance was placed, was The New India Assurance Co. Ltd. v. C. Padma [2004 KHC 198], wherein also, the matter was adjudicated on the same lines by observing as under. “10. The ratio laid down in Dhannalal's case (supra) applies with full force to the facts of the present case. M.A.C.A.No.2618/2015 9 When the claim petition was filed sub-section (3) of Section 166 had been omitted. Thus, the Tribunal was bound to entertain the claim petition without taking note of the date on which the accident took place. Faced with this situation, Mr. Kapoor submitted that Dhannalal's case does not consider Section 6A of the General Clauses Act and therefore, needs to be reconsidered. We are unable to accept the submission. Section 6A of the General Clauses Act, undoubtedly, provides that the repeal of a provision will not affect the continuance of the enactment so repeated and in operation at the time of repeal. However, this is subject to “unless a different intention appears”. In Dhannalal's case the reason for the deletion of sub-section (3) of Section 166 has been set out. It is noted that Parliament reallized the grave injustice and injury caused to heirs and legal representatives of the victims of accidents if the claim petition was rejected only on the ground of limitation. Thus “the different intention” clearly appears and Section 6A of the General Clauses Act would not apply. 11. Mr. Kapoor, learned counsel for the appellant, has placed reliance on the decision rendered by this Court in Vinod Gurudas Raikar v. National Insurance Co. Ltd., AIR 1991 SC 2156. The facts of that case were that the appellant was injured in an accident, which took place on 22/01/1989. The claim petition of the appellant was filed on 15/03/1990 with a prayer for condonation of delay. The tribunal held that in view of sub-section (3) of Section 166 of the new Motor Vehicles Act, which came into force on 01/07/1989, the delay of more than six months could not be condoned. In the facts and circumstances of that case this Court held that the case of the appellant was covered by the new Act and the delay for a longer period than six moths could not be condoned. In our view, the facts of the case in Vinod Gurudas (supra) are different from the facts of the present case, as noticed above. 12. The learned counsel for the appellant next contended that since no period of limitation has been prescribed by the legislature. Article 137 of the Limitation Act may be invoked, otherwise, according M.A.C.A.No.2618/2015 10 to him, stale claims would be encouraged leading to multiplicity of litigation for non-prescribing the period of limitation. We are unable to countenance the contention of the appellant for more than one reason. Firstly, such an Act like the Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, if otherwise the claim is found genuine. Secondly, it is a self contained Act which prescribes the mode of filing the application procedure to be followed and award to be made. The Parliament in its wisdom, realised the grave injustice and injury being caused to the heirs and legal representatives of the victims who suffer bodily injuries/die in accidents by rejecting their claim petitions at the threshold on the ground of limitation and purposely deleted sub-section (3) of Section 166., which provided the period of limitation for filing the claim petitions and this being the intendment of the legislature to give effective relief to the victims and the families of the motor accidents untrammeled by the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the Legislature.” (emphasis is ours) Based on the aforesaid determination rendered by this Court, the High Court, by its impugned order dated 07/07/2015, arrived at the conclusion, that there being no period of limitation at the juncture, when the claim petition was filed on 23/02/2005, the same could not have been rejected, merely for reason of delay.” There is no proper explanation for the delay for more than four years in preferring the claim petition. There was no explanation for not informing the matter to the police also. In the circumstances, the award passed by the tribunal is set aside and the matter is remitted to the tribunal for fresh M.A.C.A.No.2618/2015 11 consideration. The tribunal is directed to consider the question of delay in preferring the claim petition and nonreporting of the matter to the Police and dispose of the matter as per law. Both parties are directed to appear before the tribunal on 12.6.2017. M.A. C.A. is disposed of as above. **P.D. RAJAN, JUDGE.** acd