Kumari Poonam and Another Vs. Phool Chand and Others - Court Judgment

Excerpt:
motor vehicles - limitation for claim for compensation - section 166(3) of motor vehicles act, 1988 and section 13 of consumer protection act, 1986 - special provision creating bar to entertain claim petition prevail over provision of limitation act, 1908 - widow and minor child of deceased depends on brother for filing suit - brother entrusted brief to advocate's clerk - clerk filed the petition beyond time - court rejected petition for condonation of delay - held, claimants can sue brother and clerk for deprivation of compensation money. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - (3) no application for such compensation shall be entertained unless it is made within six months but no later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.ordermohapatra, j. 1. this is an appeal by claimants under section 173 of motor vehicle act, 1988 (hereinafter referred to as 'the act') against order dismissing the claim petition as barred by limitation under section 166(3) of the act.2. claimants are widow and minor daughter of the deceased, who was victim of an accident caused by a jeep u. h. x. 7449, when the appeal was listed for admission, we heard learned counsel for appellants and find that conclusion of tribunal is unassailable.3. accident was on 14-3-1985 when the motor vehicles act, 1939 was in force. claim application was filed on 29-11-1989 after the act came into force repealing the 1939 act. tribunal has accepted objection of the insurer that appeal is not maintainable as being barred by limitation as provided under section 166(3) of the act.4. since interpretation of section 166(3) of the act is involved in this appeal entire section 166 is extracted which read as follows:--166. application for compensation - (1) an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made - (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: provided that where all the legal representatives of the deceeased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not joined so, shall be impleaded as respondents to the application. (2) every application under sub-section(1) shall be made to the claims tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed; provided that where any claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (3) no application for such compensation shall be entertained unless it is made within six months but no later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. (4) where a police officer has filed a copy of the report regarding an accident to a claims tribunal under this act, the claims tribunalmay, if it thinks necessary so to do, treat the report as if it were an application for compensation under this act,'5. learned counsel for appellants submitted:(i) cause of action having arisen under the 1939 act provision under section 166(3) of the act would not be attracted. (ii) even if section 166(3) of the act applies, it has to be read with provision of the limitation act and one of the claimants being minor, claim application would not be barred under section 166(3) of the act as right to claim subsists till the minor attains majority; and (iii) on the facts and circumstances, benevolent provision of the act shall be interpreted liberally to give relief to the destitutes that rejecting the application on the technical ground of limitation provided under section 166(3) of the act.6. approaching forum for relief is a right provided the forum is available. period within which an aggrieved persons would seek the remedy is not a right. it is procedural accordingly, first contention of learned counsel has no merit 7. it is true that a minor can file a suit on attaining majority within the period of limitation provided. in 1981 ace cj 529: (air 1982 noc 34) (all) (vijay gopal v. nanak), this principle was made applicable to a claim petition under 1939 act which had no provision similar to section 166(3) of the act. beisdes where a major and a minor jointly file an application claiming compensation period of limitation available to a minor will not be attracted. therefore, second submission of learned counsel has no force. 8. third submission of learned counsel depends upon facts and circumstances of this case. facts as explained by learned counsel are that widow and minor child of deceased who became destitutes had to depend upon brother of the deceased for filing of the claim petition. brother of deceased entrusted the brief to an advocate's clerk. such advocate's clerk intimated brother of deceased that claimpetition has been filed, believing the intimation by the advocate's clerk to brother of deceased, appellants remained assured that such application is pending. then they came to learn that no claim petition has been filed they presented the claim petition in the year 1989. thus, appellants who are destitutes became victims of deceit and fraud. in these circumstances, learned counsel submitted that a liberal view should have been taken and delay having been condoned, application claiming compensation should have been entertained to be considered on merits.9. submission of learned counsel, though attractive has no merit. our view is supported by a decision of supreme court reported in 1991 all cj 1353 : (air 1991 sc 2156) (vinod guru das raikar v. national insurance co. ltd. section 166(3) of the act is a special provision creating a bar to entertain any claim petition. general provision under section 5 of the limitation act will not prevail over the special provision. when parliament having knowledge, of section 5 of limitation act created a bar to the entertainment of a claim petition by the tribunal, enquiry or sympathy will have no role to play. if at all, the facts alleged are true, claimants can sue brother of deceased and the advocate's clerk to compensate the loss on account of deprivation of the compensation money. they can also proceed against the advocate's clerk in a forum constituted under the consumer's protection act, 1986, since advocate's clerk was rendering for consideration, and on account of deficiency in his service appellants have suffered.10. in aforesaid view of the matter, though we have all sympathy for appellants. we cannot help them and the appeal is dismissed.11. appeal dismissed.

Judgment:
ORDER

Mohapatra, J.

1. This is an appeal by claimants under Section 173 of Motor Vehicle Act, 1988 (hereinafter referred to as 'the Act') against order dismissing the claim petition as barred by limitation under Section 166(3) of the Act.

2. Claimants are widow and minor daughter of the deceased, who was victim of an accident caused by a Jeep U. H. X. 7449, when the appeal was listed for admission, We heard learned counsel for appellants and find that conclusion of tribunal is unassailable.

3. Accident was on 14-3-1985 when the Motor Vehicles Act, 1939 was in force. Claim application was filed on 29-11-1989 after the Act came into force repealing the 1939 Act. Tribunal has accepted objection of the insurer that appeal is not maintainable as being barred by limitation as provided under Section 166(3) of the Act.

4. Since interpretation of Section 166(3) of the Act is involved in this appeal entire Section 166 is extracted which read as follows:--

166. Application for Compensation -

(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made -

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceeased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not joined so, shall be impleaded as respondents to the application.

(2) Every application under sub-section(1) shall be made to the claims Tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed;

Provided that where any claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(3) No application for such compensation shall be entertained unless it is made within six months but no later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.

(4) Where a police officer has filed a copy of the report regarding an accident to a claims Tribunal under this Act, the claims Tribunalmay, if it thinks necessary so to do, treat the report as if it were an application for compensation under this Act,'

5. Learned counsel for appellants submitted:

(i) Cause of action having arisen under the 1939 Act provision under Section 166(3) of the Act would not be attracted.

(ii) Even if Section 166(3) of the Act applies, it has to be read with provision of the Limitation Act and one of the claimants being minor, claim application would not be barred under Section 166(3) of the Act as right to claim subsists till the minor attains majority; and

(iii) On the facts and circumstances, benevolent provision of the Act shall be interpreted liberally to give relief to the destitutes that rejecting the application on the technical ground of limitation provided under Section 166(3) of the Act.

6. Approaching forum for relief is a right provided the forum is available. Period within which an aggrieved persons would seek the remedy is not a right. It is procedural Accordingly, first contention of learned counsel has no merit

7. It is true that a minor can file a suit on attaining majority within the period of limitation provided. In 1981 Ace CJ 529: (AIR 1982 NOC 34) (All) (Vijay Gopal v. Nanak), this principle was made applicable to a claim petition under 1939 Act which had no provision similar to Section 166(3) of the Act. Beisdes where a major and a minor jointly file an application claiming compensation period of limitation available to a minor will not be attracted. Therefore, second submission of learned counsel has no force.

8. Third submission of learned counsel depends upon facts and circumstances of this case. Facts as explained by learned counsel are that widow and minor child of deceased who became destitutes had to depend upon brother of the deceased for filing of the claim petition. Brother of deceased entrusted the brief to an advocate's clerk. Such advocate's clerk intimated brother of deceased that claimpetition has been filed, Believing the intimation by the advocate's clerk to brother of deceased, appellants remained assured that such application is pending. Then they came to learn that no claim petition has been filed they presented the claim petition in the year 1989. Thus, appellants who are destitutes became victims of deceit and fraud. In these circumstances, learned counsel submitted that a liberal view should have been taken and delay having been condoned, application claiming compensation should have been entertained to be considered on merits.

9. Submission of learned counsel, though attractive has no merit. Our view is supported by a decision of Supreme Court reported in 1991 All CJ 1353 : (AIR 1991 SC 2156) (Vinod Guru Das Raikar v. National Insurance Co. Ltd. Section 166(3) of the Act is a special provision creating a bar to entertain any claim petition. General provision under Section 5 of the Limitation Act will not prevail over the special provision. When Parliament having knowledge, of Section 5 of Limitation Act created a bar to the entertainment of a claim petition by the Tribunal, enquiry or sympathy will have no role to play. If at all, the facts alleged are true, claimants can sue brother of deceased and the advocate's clerk to compensate the loss on account of deprivation of the compensation money. They can also proceed against the Advocate's clerk in a forum constituted under the Consumer's Protection Act, 1986, since Advocate's clerk was rendering for consideration, and on account of deficiency in his service appellants have suffered.

10. In aforesaid view of the matter, though we have all sympathy for appellants. We cannot help them and the appeal is dismissed.

11. Appeal dismissed.