Midhun Shaji v. Anil Kumar and The Oriental Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943 OP (MAC) NO. 60 OF 2021** ## **PETITIONER/PETITIONER IN OP(MV):** **MIDHUN SHAJI AGED 22 YEARS S/O. SHAJI, THIRUVONAM VEEDU, VATTAVILA, VANDIPPURA, KEEZHAIKONAM, NELLANADU VILLAGE, NELLANADU P.O, THIRUVANANTHAPURAM – 695606.** **BY ADVS. A.RAJASIMHAN AYYAPPADAS V VYKHARI.K.U** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **1 ANILKUMAR S/O. THANKAYYAN NADAR, VISHNU BHAVANAM CHALUVILA, NELLANADU P.O, KEEZHAYIKONAM, THIRUVANANTHAPURAM – 695606. 2 THE BRANCH MANAGER** **THE ORIENTAL INSURANCE COMPANY LIMITED, RAMAKRISHNA BUILDING, ARISTO JUNCTION, EAST THAMPANOOR, THAMPANOOR P.O. THIRUVANANTHAPURAM – 695014.** **BY ADV SC K.S.SANTHI** **THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (MAC) NO. 60 OF 2021 2 ## **JUDGMENT** ## **Dated this the 27[th] day of July 2021** Adv. K. S. Santhi takes notice for the second respondent. 2. The petitioner filed a petition claiming compensation under the Motor Vehicles Act, before the MACT, Attingal, seeking compensation for the personal injuries sustained by the injured. An objection was raised by the office of the Tribunal that the application was filed beyond the limitation period and hence was not sustainable. Accordingly, the application was posted for hearing by the learned Tribunal, as unnumbered original petition. After hearing the claimant by an order, dismissed the original petition as time barred. This order is impugned in the present proceedings. 3. The facts discernible from the records indicate that the claim petitions was filed after six months from the date of accident. Even the extension of time of limitation granted by the Supreme Court with effect from 3 OP (MAC) NO. 60 OF 2021 15/3/2020 for six months, due to lock down also would not save the limitation, if any. The court below held the view that by virtue of section 166 (3), as amended by the Motor Vehicles Amendment Act, the application ought to have been filed within six months from the date of notification, which was 1/9/2019. It was held that the six months period accruing since 15/3/2020 was exempted from limitation by the Hon'ble Apex Court, until further orders, in the light of out break of epidemic Covid 19. Still on facts, the court found that, it would also not save the claimant. Accordingly, the learned Tribunal dismissed the petition holding that it was filed beyond the time prescribed by S.166(3) of Motor Vehicles Act. 4. Assailing the above order, learned counsel for the petitioner contended that section 166(3) of the Motor Vehicles Act was introduced by the Motor Vehicles (Amendment) Act, 2019 (32 of 2019). Though the above provision was introduced, it has not been notified by virtue of section 1 of the Motor Vehicles (Amendment) Act 2019, and hence, the above section has not come into OP (MAC) NO. 60 OF 2021 4 force. Consequently the court below committed grave error by holding that the application was hit by section 166 (3) of the Motor Vehicles Act, 2019, it was argued. 5. Evidently, sub section (3) of section 166 was introduced by section 53 of the Motor Vehicles (Amendment) Act of 2019(32 of 2019). It provides that “no application for compensation shall be entertained unless it is made within six months from the date of occurrence of the accident.” The scheme of the Act shows that the Amendment Act got the assent of the President on 9/8/2019 and was published in the Gazette of India dated 9/8/2019. Section 1(2) of the Amendment Act provided that “the Act would come into force on such date as the Central Government, may, by notification in the official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to this commencement of the Act shall be construed as a reference to the coming into force of that provision.” 6. By the notification, SO No.3110(E) of the 5 OP (MAC) NO. 60 OF 2021 Ministry of Road Transport and Highways dated 28/8/2019, several sections of the Motor Vehicles (Amendment) Act, 2019(32 of 2019) were brought into force from 1 st September 2019. By another notification dated 30/8/2019 by the Ministry of Road Transport and Highways, number SO.3147(E), it was provided that section 1 of the Motor Vehicles Amendment Act, 2019 would come into force on 1 st September 2019. Then, by virtue of the second notification, section 1 of the Act, which provided for notification or separate notifications for different sections, as the case may be, was brought into effect. By the first notification referred above, selected sections of the Amendment Act, 2019, were brought into force with effect from 1 st September 2019. SO No.3110(E) shows that after sections 48 and 49 referred in serial No.21, sections 58 to 73 (both inclusive) referred in serial No.22 were brought into force. Evidently, sections 50 to 57 of the Amendment Act including section 53, by which section 166(3) was inserted were not given effect to. In other words, by 6 OP (MAC) NO. 60 OF 2021 notification dated 28/8/2019, though several selected provisions were brought into effect, section 53 was not brought into force. Consequently, section 53 of the Amendment Act which introduced sub section (3) of 166 of the Parent Act has not come into force. Consequently, the Tribunal is governed by the original Section 166 as it stood prior to the amendment. Identical view was taken by a single judge of the Allahabad High Court in _**Shailendra Tripathi and Another v. Dharmendra Yadav and two others**_ by judgment dated 20/11/2020 in First Appeal No.1563/2020. 7. It seems that the learned Tribunal missed this aspect. This court had occasion to consider few identical orders issued by some other Tribunals. It seems that a wrong impression remains among some of the Tribunals that section 166 (3) has been brought into effect with effect from 1/9/2019. In the light of the misconception of law which led to the decision of the Tribunal which has been clarified as above, natural sequel is that the original petition is liable to be allowed after setting aside the OP (MAC) NO. 60 OF 2021 7 ## impugned order. Accordingly, the original petition is allowed. The impugned order is set aside and the learned Tribunal is directed to take back the application to file and to proceed in accordance with law as mentioned above. **Sd/-** **SUNIL THOMAS JUDGE** SKP/27-7 OP (MAC) NO. 60 OF 2021 8 ## **APPENDIX OF OP (MAC) 60/2021** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE OPMV FILED BY THE PETITIONER IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL ON 13.3.2020.** **EXHIBIT P2** **CERTIFIED COPY OF THE ORDER OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL DATED 16.06.2020 IN UNNUMBERED OP IN CF NO. 3157/2020.** ## **RESPONDENTS EXHIBITS: NIL** TRUE COPY P.A. TO JUDGE