NATIONAL INSURANCE CO LTD Vs. SENGODA GOUNDER

JUDGEMENT

(1.) THE appeal has been preferred against the award of compensation of Rs. 1,08,000 against the claim of rs. 2,50,000 for a death caused in a motor accident. The main contention urged in the appeal is with reference to the maintainability of the appeal.

(2.) ACCORDING to the learned counsel for the respondents, Mr. K. Selvaraj, the award was passed on 19. 11. 1996 and the due date for filing of the appeal was 8. 4. 1997. But the appeal was filed on 21. 4. 1997. However, the amount required under section 173 (1) of the Motor vehicles Act was not deposited. The receipt of deposit was filed only on 24. 6. 97. Thereafter, on 16. 7. 1997 only the certificate was produced. Hence, the learned counsel for the respondents contends that since the deposit has not been made within the period of limitation, the appeal is not maintainable. He cited the following decisions in support of his contention: (1) New India assurance Co. Ltd. v. Birendra Mohan De, 1995 ACJ 824 (Gauhati); (2) State of tamil Nadu v. E. P. Nawab Marakkadai, (1996) 100 stc 1 and (3) Managing director, Thiruvalluvar Trans. Corpn. v. S. Vijaya-kumar, C. M. P. No. 138 of 1998 in c. M. A. S. R. No. 59178 of 1996, dated 6. 2. 1998 by Justice S. Jagadeesan.

(3.) THE learned counsel for the appellant cited the following decisions: "the aforesaid decisions in our view, clearly show that when the question of entertaining an application for giving relief to a party arises and when such application is based on any grounds on which such application has to be considered, the provision regarding'entertaining such an application'on any of these grounds would necessarily mean the consideration of the application on the merits of the grounds on which it is based. " in the said case, the Apex Court has considered the maintainability of the application for possession moved by the landlord against the tenant under section 21 (1) (a)of U. P. Urban Buildings (Regulation of letting, Rent and eviction) Act, 1972 (13 of 1972 ). In the said section also there is a proviso. The proviso is quoted below:". . . NO application shall be entertained on the grounds mentioned in clause (a) unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application and such notice may be given even before the expiration of the aforesaid period of three years. "in the said case, the application was filed on 24. 1. 1986 under section 21 (1) (a) of the Act, In the written statement a contention was raised that the application was not maintainable under section 21 of the act on the ground that it was filed prematurely before the expiry of three years from the date on which the premises was purchased. The purchase was on 30. 6. 1985 and the application was filed on 24,1. 86. The prescribed authority allowed the petition and the District Court dismissed the appeal. In the High Court under article 226 of the Constitution of India, the maintainability was argued for the first time and it was held that the suit was maintainable. Before the supreme Court, it was contended that when the prescribed authority took up the said ground for consideration on merits after 1988 three years period had already expired from the date of purchase of the suit property by the respondent landlord. By taking up the main issue as point No. 1, the Apex Court answered the first point in the negative in favour of the landlord and against the tenant. Apex court considered the contention of the counsel for the respondent that'instituted'meant institution of such proceedings or taking cognizance of such application by issuing summons, etc. The contention was not accepted.