# RD 312 (Dabbali alias Soney Lal v. Ram Sewak etc.) Regarding bar under

- **Citation:** (2001) 1 ILRA 359
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rd-312-dabbali-alias-soney-lal-v-ram-sewak-etc-regarding-bar-under-39738
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
359
bar
of
Section
49
of
the
U.P.
Consolidation of Holdings Act he has
submitted that if after lapse of five years
of the order passed by the consolidation
authorities, a cause of action arose to any
party he an choose forum through which
he is to get relief. If the relief is not under
Section 34 of the Act, then Section 49
will not come into play and much
proceedings
even
under
the
U.P.
Consolidation of Holdings Act are subject
to the final decision by the regular suit.
For that purpose he has placed reliance on
1970 RD 465 (Bala Din vs. Smt. Baura).
He
has
further
submitted that the
proceedings under Section 34 does not
confer any right or title to the parties,
therefore the writ is not maintainable. For
that purpose he has cited decisions
reported in 1980 RD 148 (Majid and
others vs. Munafit and others) and 1969
RD 312 (Dabbali alias Soney Lal Vs.
Ram Sewak etc.) Regarding bar under
Section 49 of the Act, he has placed
reliance on the decisions 1993 RD 414
(Om Prakash and others vs. Jai
Prakash) and 1991 RD 364 (Rajeshwar
and another vs. The Board of Revenue).
His submission is that the court may not
see the merits of the case when the writ
petition in not maintainable.
11. After hearing the learned
counsel for the parties at length and
seeing various decisions. I am of the view
that in a number of decisions, this court
has held that the proceedings under
Section 34 of the Act is fiscal in nature
and does not decide the title or right of the
parties, therefore, no writ lies. I also
affirm the view taken in the decision
reported in 1999 RD 633, therefore, I am
of the view that the present writ petition
in not maintainable, as such, it is
dismissed.
Petition Dismissed.
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1All] New India Assurance Co. Ltd., Kanpur V. Km. Vibha Devi and others
360
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By the Court

1. This appeals is directed against
the award of the Motor Accident Claims
Tribunal, Kanpur Dehat dated 21.03.1993
in claim petition No. 114 of 1991
whereby a sum of Rs. 1,75,000/- has been
awarded to the claimant-respondents.

2. The claim petition was filed by
the claimant respondents on 12.04.1990
with the allegations that their father Brij
Bhushan, who was going on a cycle with
his eldest son Arun Kumar towards his
village Pailawar, while reached near
culvert near Rajpur Roadways Bus Stop,
the truck No. UTW 9228 dashed against
him with the result he received severe
injuries within half an hour of the
accident
leaving
behind
him
one
unmarried daughter and two minor sons
i.e. the claimant-respondents. Rajendra
Singh was the driver and he was driving
the truck rashly and negligently. The wife
of the deceased (mother of the claimantrespondents) had expired. The claimantrespondents were minors at the time of
the accident. The deceased was aged
about 48 years at the time of his death and
was earning Rs. 1000/- per month from
his hotel business. They claimed a sum of
Rs. 5,28,000/- as compensation.

3. The driver of the truck filed
written-statement and he stated that he
was not driving the truck in question on
the relevant date. The owner of the truck
also filed written-statement and denied
that the accident had taken place from the
vehicle in question. The appellant also
filed written-statement and took the same
plea as were taken by the owner of the
truck. It further took the plea that the
claim petition was barred by limitation.
The tribunal recorded a finding that the
accident had taken place as alleged by the
claimant-respondents due to which Brij
Bhushan expired and on appreciation of
evidence,
held
that
the
claimantrespondents were entitled to a sum of Rs.
1,75,000/- as compensation. This order
has been challenged in the present appeal.

4. We have heard Sri A.B. Saran,
learned Senior Advocate for the appellant
and Sri H.P. Misra, learned counsel for
the contesting respondents.

5. Learned counsel for the appellant
vehemently contended that the claim
petition was barred by limitation and
therefore, the Tribunal had no jurisdiction
to entertain the petition. Admittedly, the
claimant-respondents
had
filed
an
application to condone the delay in filing
the claim petition. The Tribunal condoned
the delay.

6. Learned counsel for the appellant
contended that the Tribunal had no power
to condone the delay in filing the claim
petition. He has referred to the decision in
Vinod Gurudas Raikar Vs. National
Insurance Co. Ltd. And another AIR 1991
SC-2156 wherein the Supreme Court has
held that if the claim petition is filed after
repeal of the old Act, the Tribunal has no
power to condone the delay of more than
six months.

7. It is necessary to refer the
legislative changes under the provisions
of the Motor Vehicles Act. At the time of
the death of the deceased in the year
1977, Motor Vehicles Act, 1939 was
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
361
applicable. The claim petition should have
been filed under section 110-A of the said
Act Sub-section (3) of Section 110-A of
the Act provide that :-

"no
application
for
such
compensation shall be entertained unless
it is made within six months of the
occurrence of the accident:

Provided that the Claims Tribunal
may entertain the application after the
expiry of the said period of six months if
it is satisfied that the applicant was
prevented
by
sufficient
cause
from
making the application in time."

The Tribunal had jurisdiction to
condone the delay and there was no
limitation as to up to what period the
delay could be condoned.

8. The Motor Vehicles Act, 1939
was repeated and the Motor Vehicles Act,
1988 came into force w.e.f. 01.07.1989.
The new Act provided that a period of
limitation for filing the clam petition
under sub-section (3) of Section 166. The
said sub-section provided that :

"no
application
for
such
compensation shall be entertained unless
it is made within six months of the
occurrence of the accident.

Provided that the Claims Tribunal
may entertain the application after the
expiry of the said period of six months if
it is satisfied that the applicant was
prevented
by
sufficient
cause
from
making the application in time."

The power of the Tribunal to condone the
delay under the aforesaid provision was
limited for a period of six months.

9. Sub-section (3) of Section 166 of
the Motor Vehicles Act, 1988 has been
omitted by Section 53 of the Motor
Vehicles (Amendment) Act 1994. The
effect of the Amending Act is that there is
no limitation for filing petition before the
Tribunal in respect of any claim. The
matter was considered by the Supreme
Court in Dhannalal Vs. D.P. Vijayvargiya
and other AIR 1996 SC 2155 and it was
observed "the parliament realised the
grave injustice and injury which was
being caused to the heirs and legal
representatives of the victims who died in
accidents by rejecting their claim petitions
only on ground of limitation. It is a matter
of common knowledge that majority of
the claimants for such compensation are
ignorant about the period during which
such claims should be preferred. After the
death due to the accident, of the bread
earner of the family, in many cases such
claimants are virtually on the streets.
Even in cases where the victims escape
death
some
of
such
victims
are
hospitalised for months if not for years."
It was held that the said deletion shall be
deemed as retrospective and made the
followings observations :-

"in this background now it has to be
examined as to what is the effect of
omission of sub-section (3) of Section 166
of the Act. From the Amending Act it
does not appear that the said sub-section
(3) has been deleted retrospectively. But
at the same time, there is nothing in the
Amending Act to show that benefit of
deletion of sub section (3) of Section 166,
is not extended to pending claim petitions
where a plea of limitation has been raised.
The effect of deletion of sub-section (3)
from Section 166 of the Act can be tested
by an illustration. Suppose an accident
had
taken
place
two
years
before
1All] New India Assurance Co. Ltd., Kanpur V. Km. Vibha Devi and others
362
14.11.1994 when sub-section (3) was
omitted from Section 166. For one reason
or the other no claim petition had been
filed by the victim or the heirs of the
victim till 14.11.1994 in respect of such
accident ? Whether a claim petition filed
after 14.11.1994 can be rejected by the
Tribunal on the ground of limitation
saying that the period of twelve months
which had been prescribed when subsection(3) of Section 166 was in force
having expired the right to prefer the
claim petition had been extinguished and
shall not be revived after deletion of subsection
(3)
of
Section
166
w.e.f.
14.11.1994? According to us, the answer
should be in negative."

10. In the present case the Tribunal
had given award on 31.03.1993. The
appellant filed an appeal against this order
and it will be taken as continuation of the
same
proceeding.
The
claimantrespondents are entitled to the benefit of
the said provision.

11. Secondly, at the time of the
death of the deceased on 07.05.1977 the
claimants were minors. The claim petition
was filed in 12.04.1990 and on the said
date the elder daughter was 20 years and 9
months, his son was 19 years and 9
months and second son was still minor
aged about 16 years. Section 6 of the
Limitation Act provides that where a
person is entitled to institute a suit or
make an application for the execution of a
decree is, at the time from which the
prescribed period is to be reckoned a,
minor or instance, or an idiot, he may
institute the suit or make the application
within the same period after the disability
has ceased, as would otherwise have been
allowed from the time specified therefore
in the third column of the Schedule. As
the claimants were minors at the time of
the death of the deceased, they could have
filed the claim petition on attaining the
age of majority. As stated above, the
claimants were minors and after attaining
the age of majority, they had filed claim
petition, which shall be treated to have
been filed within time.

12. Thirdly, the appellant as
Insurance Company could raised such
objections as permissible under Section
149 of the Motor Vehicles Act, 1988.
Section 149 does not permit the Insurance
Company to raise any objection in respect
of the limitation. The appellant has not
shown that it had taken permission of the
Tribunal under section 170 of the Act to
contest the claim petition in respect of its
merit including the question of limitation.
The appellant, in these circumstances, is
not entitled to contest the claim petition
on the ground that it is barred by
limitation.

13. The next submission of the
learned counsel for the appellant is that
the Tribunal has not recorded any specific
finding that the accident was caused due
to rash and negligent driving by the driver
of the vehicle in question. The claim
petition was filed with the allegations that
Brij Bhushan. The claim petition was
filed with his son Arun Kumar and when
he reached near the culvert he was hit by
truck No. UTW 928 which was being
driven rashly and negligently by Rajendra
Singh driver. He on receiving the injuries
died within half hour of the accident. The
appellant and the respondents denied that
the accident was caused by the vehicle in
question. The allegations of the appellant
and other contesting respondents were
found to be wrong. Arun Kumar, the son
of the deceased appeared as P.W.I. He
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
363
narrated
the
full
incident
and
his
statement has been believed by the
Tribunal. His statement clearly indicates
that the accident was caused due to rash
and negligent driving of the driver of the
truck.

In view of the above, we do not find
any merit in the appeal. It is, accordingly,
dismissed with costs to the claimantrespondents.

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By the Court

1. We have heard Sri S.P. Gupta,
learned Advocate for the writ petitioner
and Sri C.S. Singh learned Standing
Counsel appearing for respondents no. 1
and 2.

2. On the basis of some complaint
received
by
Up-Ziladhikari
(SubDivisional Officer) tehsil Sagari, District
Azamgarh, supply of the writ petitioner
who claims to be a fair price shop dealer
has been stopped by the Sub-Divisional
Officer, respondent no. 1. The order has
been issued by the said respondent to that
effect on 13.11.2000. It does not appear
that any inquiry is pending or any
opportunity of hearings was given on the
allegation made in the said complaint.

3. We are of the view that it is
obligatory on the respondent authorities to
follow the procedure prescribed by the
law and there is no power conferred on
the authority to stop the supply on the
basis of more allegation or compliant and
to take such action without affording an
opportunity to the writ petitioner. In the
circumstances, the impugned order dated
13th November'2000 is quashed. The
supply shall be restored to the writ
petitioner forthwith. We however observe
that it shall be open to the respondent
authorities to take appropriate action in
accordance with law.

The writ petition succeeds and is
allowed.