Judgment:
A. Pasayat, J.
1. An award of the learned Second Motor Accidents Claims Tribunal, Cuttack (in short, 'the Tribunal') is assailed in this appeal under Section 110-D of the Motor Vehicles Act, 1939 (in short, 'the said Act').
2. The appellant suffered injuries in an accident on 5.1.1982. According to the case of the claimant, two trucks bearing registration Nos. ORM 1163 and OSC 9761 were driven in a very negligent manner. Suddenly the first vehicle moved to the left side and dashed against the claimant from his back side as a result of which he sustained severe injuries on his head, face and other parts of the body. He had to undergo treatment at the hospital. The claim lodged by the claimant was for Rs. 80,000/-. The insurer of both the vehicles was New India Assurance Co. Ltd. (hereinafter referred to as 'the insurer'). The owners of both the vehicles were impleaded in the claim application before the Tribunal. The Tribunal held that the claimant had suffered several injuries and was entitled to compensation which was quantified at Rs. 12,000/-. However, the Tribunal refused to direct payment of the quantified amount on the ground that the claim application was filed beyond the prescribed period of limitation.
It is relevant to mention here that the claim application was filed on 17.7.1982. The Tribunal was of the view that the application was to be filed within six months from the date of accident in terms of Section 110-A (3) of the old Act. The main ground on which the claim application was held to be barred by time was that nothing was indicated in the claim application about the delay in presentation and that the insurer had taken a specific plea regarding limitation. It is relevant to mention that on 6.8.1982 the delay in presentation of the application was condoned and notice was directed to be issued to the opposite parties. It is not in dispute that the application supported by an affidavit was filed while making the prayer for condoning the delay in presentation of the claim application.
3. Mr. R.N. Mohanty, learned counsel for claimant-appellant, submits that the delay having been condoned before appearance of the parties there was no scope for going into the question whether the application was to be entertained. He has also submitted that the application supported by an affidavit having been filed there was no other requirement to lead evidence in support of the grounds which occasioned the delay. Mr. P. Roy, learned counsel for the insurer, however, submits that after appearance a party has the right to raise the plea of limitation even after the delay was condoned before the party appears.
4. A party is entitled to challenge any ex parte conclusion of the Tribunal in the matter of delay in making the claim. Even if there has been condonation before appearance of the parties the question of limitation can be agitated after the parties appear and the Tribunal is bound to decide that question once it is raised. This proposition flows from the right of a party to urge his side of the case when a proper opportunity is afforded to him. The tentative decision of the Tribunal while issuing notice on the question of limitation is not final and it is open to be challenged by the opposite parties when they are given the notice. A similar view was expressed by this court in Hemalata Devi v. Sk. Lokrnan 1973 ACJ 257 (Orissa).
5. In the case at hand, an application for condonation of delay supported by an affidavit had been filed. The plea of the insurance company as evident from the written statement is to the following effect:
(5) That the claim is otherwise barred by limitation.
There is no dispute that the claim application was filed beyond the prescribed time. In fact the claimant himself had filed an application claiming condonation and, therefore, the fact that the insurance company had indicated that the claim application was barred by limitation is of no consequence. So the Tribunal was to decide whether the claimant had sufficient cause for seeking condonation of delay in presentation of the claim application. That aspect has not been dealt with by the Tribunal at all. On the contrary, it seems to have been swayed by the fact that in the claim application no reason for the delayed presentation was indicated. The conclusion is untenable. The claimant was not required to indicate in the claim application anything about the delayed presentation. Because there was delay, the claimant had sought for its condonation and indicated the reasons in the application for condonation of delay and in the affidavit accompanying it. The Tribunal has not disbelieved the assertion of the claimant regarding the ground pleaded by him in support of this plea. Therefore, the Tribunal was not justified in rejecting the claim application. In that view of the matter, the claimant is entitled to the sum quantified by the Tribunal.
6. Mr. Roy for the insurer, however, submits that had the claim application been allowed it would not have been required to pay any amount by way of interest. Therefore, the insurer should not be saddled with interest for the period during which this appeal was pending. In the peculiar circumstances of the case, I feel that the interest of justice would be best served if the insurer is required to pay a sum of Rs. 12,000/- with interest at the rate of 9 per cent per annum from the date of application before the Tribunal, i.e., 17.7.1982, till the date of award by the Tribunal, i.e., 19.8.1987. The amount be paid to the claimant within three months from today. If the amount is not paid within the time indicated, interest would be payable from the date of application till payment at the rate aforeindicated. A faint attempt was made by the learned counsel for the insurer to show that the vehicle was not insured with the insurer. But in view of the document marked as Exh. 4, the plea is clearly untenable.
The miscellaneous appeal is accordingly disposed of.