CHHOGALAL Vs. GOVERNMENT OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal under Section 110 (D) of the Motor Vehicles Act, 1939 is directed against the order dated 10 -5 -1974 passed by the Motor Accidents Claims Tribunal, Indore, whereby the claim petition filed under Section 110 -A of the said Act was dismissed as being barred by limitation.

(2.) THE accident resulting into the death of Hiralal who was the father of the Appellant -applicant took place on 20.9.1971. This claim -petition dated 15 5.1972 was sent by registered post and was received in the office of the Tribunal on 16.5.1972. The claimant in paragraph 11 of his petition inter alia pleaded exclusion of two months' time of statutory notice under Section 80 of the Code of Civil Procedure served on the government. Subsequently, an application dated 7.5.1974 was also submitted on behalf of the applicant for condonation of delay. The ground taken was that a notice under Section 80 of C.P.C. was served on the government. This application was supported even by an affidavit. There is no dispute to the fact that if two months period of notice under Section 80 of Code of Civil Procedure is excluded then the claim -petition was within limitation. In the written statement filed on behalf of the State of Madhya Pradesh the fact of notice under Section 80 of C.P.C. having been served, has been admitted. The controversy about the necessity of a notice under Section 80 of Code of Civil Procedure before filing a claim petition under Section 110 of the Motor Vehicles Act was settled by the Full Bench of this Court in Mangilal v. Union of India : 1973 A.CJ. 352. A Division Bench of this Court had referred the question whether notice under Section 80 of Code of Civil Procedure is necessary for an application for compensation when filed under Section 110 -A of the Motor Vehicles Act. The Full Bench by its decision dated 18.4.1973 answered this question saying that a notice under Section 80 of Code of Civil Procedure is not necessary for an application for compensation when filed under Section 110 -A of the Motor Vehicles Act before a Claims Tribunal constituted under the Act. It is clear that the question about the necessity of notice prior to its being settled by the Full Bench in Mangila : 1973 A.C.J. 352 case was a debatable one.

(3.) LEARNED Government Advocate for the Respondents could not point out any circumstance or reason to negative Appellant's claim for condonation of delay. Merely because the claimant did not file any application for condonation of delay alongwith his claim -petition, would hardly be a ground to reject that application. As against that it is clear that this application was submitted after when the controversy was set at rest in Mangila case : 1973 A.C.J. 352. Thus, in my opinion, the applicant -Appellant had made out sufficient cause for not filing the claim -petition within the statutory period of limitation, i.e., six months and the delay deserves to be condoned.