HANJA Vs. RAM KISHAN AHIR

JUDGEMENT

(1.) WITH the consent of the parties I proceed to dispose of this writ petition.

(2.) THE petitioner Smt. Hanja is wife of Shanker Singh and other petitioners are sons and daughter of Shanker Singh who died out of use of a motor vehicle in an accident which took place On May 21,1984. A claim petition under Section 110 -A of the Motor Vehicles Act, 1939 (for short, the Act) was filed by the petitioners herein in the Accidents Claims Tribunal, Ajmer on October 30,1984 within six months, the period of limitation prescribed under the Act. In the said claim petition the petitioners had arrayed Jaipur Golden Transport Company as respondent as the owner of the truck No. RRG -465 5. In the reply to the said claim petition filed by Jaipur Golden Transport Company, the said company came out with a case that it was not the registered owner of the vehicle and as such they were not liable to pay any amount. The petitioners thereafter made an enquiry and they are said to have inspected the record of the case in the Court of the learned Magistrate where a charge -sheet has been filed and on enquiry they came to know that one Harnam Das Bhatia was the registered owner of the vehicle and New India Assurance Company was its insurer. An application was filed on behalf of the petitioners in the Motor Accidents Claims Tribunal on March 28,1985 Under Order 6 Rule 17 read with Order 1 Rule 10 CPC wherein it was prayed that it was under the bonafide mistake that in the original claim petition Jaipur Golden Transport Company was shown as the owner of the above truck. It was prayed that now Harnam Das Bhatia, the registered owner of the truck and New India Assurance Company, its insurer, may be arrayed as respondents. The application was contested on behalf of both the parties who were sought to be added and the learned Tribunal under its Order dated May 16,1985 allowed the application in part and in so far as New India Assurance Company is concerned, but dismissed the application for impleading Harnam Das Bhatia as respondent on the ground that it will amount to addition of the parties beyond the period of limitation and the claim against that party had become time barred.

(3.) A perusal of the proviso to Sub -section (3) of Section 110 -A of the Act will show that power has been conferred on the Tribunal to entertain application after the expiry of the period of limitation if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. It will be seen from the application (pages 19 and 20 of the paper book) which has been filed on behalf of the petitioners before the learned Tribunal under Order 6 Rule 17 read with Order 1 Rule 10 and Section 151 CPC that the petitioners had come out with the specific case that they were not knowing and had no knowledge that Harnam Das Bhatia was the owner of the truck and it was only when the reply was filed that they came to know that Jaipur Golden Transport Company was not the owner of the truck but on enquiry it was revealed that one Harnam Das Bhatia was the owner of the vehicle and New India Assurance Company was the insurer. Learned Tribunal has itself referred to these facts in his order and has said that even Harnam Das Bhatia had admitted in the Court of Magistrate that he was the owner of the vehicle and his address was Jaipur Golden Transport Company. In my opinion, sufficient facts were contained in the said application and as such it was a fit case in which the learned Member of the Tribunal in exercise of his powers under the proviso to Sub -section (3) of Section 110 -A of the Act should have entertained the application even after the expiry of the period of six months it was a case where it can be said that the petitioners were prevented by sufficient cause from making the application, That apart, even assuming that the petitioners have made an application for substitution of Jaipur Golden Transport Company by Harnam Das Bhatia and the application has been filed after the period of six months, under the proviso to Sub -section (1) of Section 21 of the Limitation Act if the Court is satisfied that the omission to include a new plaintiff or defendant was due to mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Therefore, by virtue of Section 21(1) of the Limitation Act after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party, but the Court has power under the proviso to Sub -section (1) of Section 21 of the Limitation Act and it can order that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date, if it is satisfied that the omission to include the new plaintiff or defendant was due to mistake made in good faith. It was a fit case where the Court should have ordered that the claim petition as against Harnam Das Bhatia shall be deemed to have been instituted when the original claim petition was filed, which as said earlier, was filed within the prescribed period of limitation.