Basanti Devi and ors. Vs. Devi Dyal Bhagat and anr.

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. order1. this appeal under clause 10 of the letters patent is directed against the judgment dated 15.1.1999 passed in miscellaneous appeal no. 583/1993. the judgment dated 15.1.1999 reads as under :--'hear the parties and with their consent this appeal is disposed at the stage of hearing under order 41 rule 11 of the code of civil procedure, it is not in dispute that on 21.1.1988 shiv shankar sahu, while riding the moped bearing registration no. bpy-6403 belong to devi dayal bhagat was dashed by a truck, registration no. whereof could not be ascertained and lost his life. his heirs filed complaint ease no. 37 of 1988 under the motor vehicles act, 1939. neither the deceased was owner of the moped nor it was proved by the claimants that he had a valid driving licence. it was said that one tovious tatad was pillion rider on the said moped and he was the eye witness and only person to say as to whether the accident took place for the fault of the deceased or the truck driver but surprisingly he was not examined. it was therefore not proved as to how the accident took place. in such circumstances in my view the tribunal rightly held that the insurer of the moped was not liable to pay compensation under the said act to the claimants. this appeal is accordingly dismissed.' 2. admittedly the deceased was neither the owner of the moped nor he was having a valid diving licence not only that there is nothing on record to show that which truck was involved in the accident. 3. in that view of the matter, we areof the view that the learned single judgerightly dismissed the appeal holding thatthe appellant-insurance company was notliable to pay any amount to the claimants.we do not find any merit in this appealwhich is accordingly dismissed. however,needless to say that the respondentclaimants will not be debarred from approaching other authority for the grant ofcompensation.