ORIENTAL INSURANCE COMPANY LIMITED Vs. SAFI MOHD

JUDGEMENT

(1.) The notices of the respondent driver as well as owner were served in the S.B. Civil Misc. Appeal No. 188 of 1998, which was filed by the claimant for enhancement of the claim, but none appeared for the driver and owner of the vehicle.

(2.) Heard learned counsel for the appellant Oriental Insurance Co. Ltd. and learned counsel for the claimant on appeals filed by the claimant and insurance company both. The claimant has filed appeal for enhancement of the award amount whereas the insurance company has preferred the appeal challenging the award.

(3.) Learned counsel for the insurance company vehemently submitted that in this case accident took place on 18.12.1989, the new Motor Vehicles Act, 1988 came into force from 1.7.1989. Period of filing claim petition was provided in the new Act was only six months with a power to Tribunal to condone the delay of further six months only. Provision providing limitation for filing claims was subsequently amended in the year 1994 by which the bar of limitation was removed. The claim petition was filed in the year 1996 after seven years from the date of accident. According to the learned counsel for the appellant insurance company, the cause of action accrued to the claimant on 18.12.1989 and the right to avail remedy by lodging claim expired on 18.12.1990 and, therefore, the right, which was available to the claimant stands extinguished with the expiry of period of limitation as per old law, before amendment of 1994. The learned counsel for the appellant further submitted that in view of the judgment of the Hon'ble Supreme Court delivered in the case of Vinod Gurudas Raikar v. National Insurance Co. Ltd., 1991 ACJ 1060 (SC), the Hon'ble Supreme Court, after considering section 6 of the General Clauses Act, held that the right once extinguished under the old Act cannot revive because of coming into force of the new Act and in the facts of the case before the Hon'ble Supreme Court the Hon'ble Supreme Court also held that the benefit of provision of condonation of delay have not been changed by the new enactment and, therefore, the claim petition of the claimant, which was filed after six months of period of limitation without any ground for condonation of delay as found by the Tribunal is barred by time. It is also submitted by the learned counsel for the appellant that Hon'ble Supreme Court in another case, Ramesh Singh v. Cinta Devi, 1996 ACJ 730 (SC), held that the provisions of the new Motor Vehicles Act, 1988 are not retrospective in operation. According to learned counsel for the appellant in subsequent judgment of the Hon'ble Apex Court delivered in the case of Dhannalal v. D.P. Vijayvargiya, 1996 ACJ 1013 (SC), neither the earlier judgment of the Hon'ble Supreme Court delivered in the case of Vinod Gurudas Raikar (supra) and Ramesh Singh's case (supra), were considered nor section 6 of the General Clauses Act was considered by the Hon'ble Apex Court. Therefore, the objection of the appellant is squarely covered by the decision of the Hon'ble Apex Court delivered in the cases of Vinod Gurudas Raikar and Ramesh Singh's case (supra).