# Shailendra Tripathi & Anr v. Dharmendra Yadav & Ors

- **Citation:** (2020) 12 ILRA 112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-20
- **Case number:** First Appeal From Order No. 1563 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-tripathi-anr-v-dharmendra-yadav-ors-45440
- **Pages:** 5

## Headnote

A. Civil Law- Motor Accident Claim - Motor
Vehicle Act, 1988 - Section 163A, 164 and
166 -Limitation- Maintainability of Claim
filed beyond six months -Applicability of
Section 166(3)-Effect of notification of the
Amendment Act, 2019-Since, Sections 50 to
57 of the Amendment Act are not notified,
claimant/s can still prefer an application u/s
140 of the Principal Act independently or
along with an application for compensation
u/s 166 or in alternative claimant/s can
prefer an application u/s 163-A of the
Principal Act for compensation based on the
structured formula-Held, since now, there is
no provision which provides for seeking
condonation of delay, if an application for
compensation is filed beyond the period of
six months from the date of the accident, till
the time Section 53 of the Amendment Act is
notified, the claimant/s are not required to
prefer an application for condensation of
delay-Impugned order of the Tribunal
quashed. (Para 15, 16 and 21)

Appeal allowed (E-1)

## Text

112 INDIAN LAW REPORTS ALLAHABAD SERIES
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount.

26. Fresh award be drawn accordingly
in the above petition by the tribunal as per
the
modification
made
herein.
The
Tribunals in the State shall follow the
direction
of
this
Court
as
herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and not blindly apply the judgment
of A.V. Padma (supra). The same is to be
applied looking to the facts of each case.

27. No amount shall be kept in fix
deposit as Shambhu Nath Shukla, appellant
has become a senior citizen, no TDS shall
be deducted as per direction of this Court
by the insurance company.

28. This court is thankful to both the
counsels for getting the appeal disposed of as the
matter is now pending since more than 20 years.
----------
(2020)12ILR A112
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2020
as well as 21.11.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 1563 of 2020

Shailendra Tripathi & Anr. ...Appellants
Versus
Dharmendra Yadav & Ors. ...Respondents

Counsel for the Appellants:
Sri Yogesh Kumar Tripathi, Sri Sanjay
Kumar Singh
Counsel for the Respondents:
Sri Rahul Sahai

A. Civil Law- Motor Accident Claim - Motor
Vehicle Act, 1988 - Section 163A, 164 and
166 -Limitation- Maintainability of Claim
filed beyond six months -Applicability of
Section 166(3)-Effect of notification of the
Amendment Act, 2019-Since, Sections 50 to
57 of the Amendment Act are not notified,
claimant/s can still prefer an application u/s
140 of the Principal Act independently or
along with an application for compensation
u/s 166 or in alternative claimant/s can
prefer an application u/s 163-A of the
Principal Act for compensation based on the
structured formula-Held, since now, there is
no provision which provides for seeking
condonation of delay, if an application for
compensation is filed beyond the period of
six months from the date of the accident, till
the time Section 53 of the Amendment Act is
notified, the claimant/s are not required to
prefer an application for condensation of
delay-Impugned order of the Tribunal
quashed. (Para 15, 16 and 21)

Appeal allowed (E-1)

(Delivered by Hon'ble Kaushal Jayendra Thaker, J.)

1. Heard learned counsel for the
appellants and learned counsel for the
Insurance Company and Sri Ojha, learned
counsel for the State as Amicus Curiae.

2. Amendment, if any, be carried out
during the course of day.

3. This appeal is at the behest of
claimants whose claim petition came to be
dismissed by the learned Motor Accident
Claims Tribunal (hereinafter referred to as
"the Tribunal" holding that as the accident
took place on 24.12.2019 and the petition
was filed on 20.8.2020, hence, the claim
petition was filed beyond six months as per
the amended provisions of Section 166 (3)
12 All. Shailendra Tripathi & Anr. Vs. Dharmendra Yadav & Ors.
113
of the Motor Vehicle Act (hereinafter
referred to as "the Act") as amended in
2019 and, according to the learned
Tribunal, the same provisions were/are in
the statute book from 2019.

4. Brief skeletal facts are narrated as
necessary to decide the question raised in
this appeal. The claim petition was filed on
20th August, 2020 most probably after the
courts started functioning and accepted
filing in physical form. The reasons for
delay were also assigned by the petitioners
by annexing several medical documents
and death certificate of mother of petitioner
no.1. The Tribunal mechanically held that
amended Section 166 (3) of the Act
subscribes a period of six months for filing
claim petition and, therefore, a matter after
that period cannot be entertained. Learned
Tribunal, therefore, dismissed, the claim
petition, which has given rise to this appeal.

5. Counsel for the appellants orally
submitted that there is question of law
involved in this appeal and, therefore, he
has in paragraph 11 contended that the
order of the Tribunal is against the settled
principle of law.

6. The accident took place on
24.12.2019 as culled out from the order of
Virjendra Kumar Singh, Presiding Officer,
Motor Accident Claims Tribunal. It appears
that learned Tribunal has held that six
months' time as contemplated had elapsed
and, therefore, rejected the claim petition of
the
claimants
filed
for
claiming
compensation for death of their son.

7. It is submitted by learned counsel
for the appellants that the learned Tribunal
has taken a hyper-technical stand in
rejecting the claim petition. It is submitted
that the matter can be viewed from three
angles. First aspect is that accident took
place in the month of December, 2019,
even if we hold that assumption made by
the learned Tribunal that Section 166 (3)
has been notified and is made applicable,
six months' period would be over during
the pandemic. The pandemic struck us in
the month of March, 2020 and the Apex
Court by an omnibus order extended the
period of limitation. This aspect should
have also been looked into by the learned
Judge. Thus, period of limitation, therefore,
was not over as per the omnibus direction
of this Court as well as Apex Court.
Reference can be made to various orders
passed in Public Interest Litigation (P.I.L)
No.564 of 2020, In re Vs. State of U.P. Suo
moto. The Division Bench of Hon'ble the
Chief
Justice
and
Hon'ble
Justice
Siddhartha Varma passed therein several
directions pertaining to enhancement of
limitation as filing of matters was not
permitted during the lock down and the
order later on passed by the Division Bench
on 10.7.2020 therein would also oblige, the
learned Tribunal to consider the period. The
orders have already been published on
official website of he Court. It appears that
in sheer haste, learned Tribunal has
dismissed the claim petition.

8. Another aspect which is required to
be appreciated is that even if we consider
that the provisions of 166 (3) of the Motor
Accident Act 2019 have been brought on
statute book, learned Judge could have seen
the matter from different angle that there is
substitution of Section 163A by section164,
where no period of limitation has been
prescribed. He could have permitted the
said alternative also. Thirdly, Section 166
(3) has been has been notified but what is
the current position with respect to the
provisions contained under Section 166(3)
of the Motor Vehicles (Amendment Act,
114 INDIAN LAW REPORTS ALLAHABAD SERIES
2019 which was published in the Gazette of
India on 28th August, 2019?, will have to
be evaluated.

9. The while reading Section, is 1 (2)
of the 2019 of the amendment Act, the
present situation as emerges is that 2019
notification in Section 1(2) connotes as
follows:-

10. On 9th August, 2019 the Motor
Vehicles Act (Amendment) Act, 2019 was
published in the Gazette of India (hereinafter
referred as 'the Amendment Act). By this
amendment, the Motor Vehicles Act, 1988
(hereinafter referred as 'the Principal Act) has
been drastically amended.

11. Section 1 of the Amendment Act
is relevant for the present discussion
therefore, same is reproduced hereinunder:-

Section 1(1):- This Act may be
called the Motor Vehicles (Amendment)
Act, 2019.

(2) It shall come into force on such
date as the Central Government may, by
notification in the Official Gazette, appoint and
different dates may be appointed for different
provisions of this Act and any reference in any
such provision to the commencement of this Act
shall be construed as a reference to the coming
into force of that provision.

12. In exercise of the powers
conferred by Sub-section (2) of Section 1
of the Amendment Act, the Central
Government appointed the 1st day of
September, 2019 as the date on which the
following Sections of the Amendment Act
shall come into force, namely...

Section 2, Section 3, Clauses (i) to
(iv) of Section 4, Clauses (i) to (iii) of Section 5,
Section 6, Clauses (i) of Section 7, Sections 9 and
10, Section 14, Section 16, Clauses (ii) of Section
17, Section 20, Clauses (ii) of Section 21, Section
22, Section 24, Section 27, Clauses (i) Section 28,
Sections 29 to 35, Sections 37 and 38, Sections 41
to 43, Section 46, Sections 48 and 49, Sections 58
to 73, Section 75, Clauses (i) of Clause (B) of
Section 77, Sections 78 to 87, Section 89, Subclauses (a) of clause (i) and clause (ii) of Section
91 and Section 92 of the Amendment Act.
Admittedly Sections 50 to 57 of the Amendment
Act are not notified till dated.

13. Since we are discussing an issue
as to whether the provisions contained
under the proposed Section 166(3) of the
Act which was published in the Gazette of
India on 28th August, 2019 would be
applicable in the present time or not, it
would be apt to have the comparative table
of the Amendment Act and the Principal
Act.
Sr.
No
.
Provisions
contained
under
the
Amendment
Act
Provisions
contained
under
the Principal Act.
1
Section 50
Sections
140
to
144
(Chapter X)
2
Section 51
Sections
145
to
164
(Chapter XI)
3
Section 52
Section 165
4
Section 53
Section 166
5
Section 54
Section 168
6
Section 55
Section 169
7
Section 56
Section 170
8
Section 57
Section 173
12 All. Shailendra Tripathi & Anr. Vs. Dharmendra Yadav & Ors.
115

14. If we arefully peruse the above
referred table, it clearly appears that
Sections 50 to 57 of the Amendment Act are
yet to be notified. These Sections 50 to 57
of the Amendment Act relate to Sections
140 to 144, Sections 145 to 164, Section
165, Section 166, Section 168, Sections
169, Section 170 and Section 173,
respectively of the Principal Act. In simple
words, Sections 140 to 144 of the Principal
Act (Chapter - X) have not been omitted as
yet and continue to operate. Similarly
Sections 145 to 164 (Chapter - XI) and
Section 165, Section 166, Section 168,
Sections 169, Section 170 and Section 173
of the Principal Act would continue to
operate with full vigor till the time Section
51 to 57 of the Amendment Act are notified
in the Official Gazette.

15. Above referred discussion leads us
to the conclusion that the provisions
contained under Sections 140 of the
Principal Act which speaks about liability
of the Owner and/or Insurer to pay
compensation in certain cases on the
principle of no fault, Section 163-A of the
Principal Act which provides for the
special provisions as to payment of
compensation based on structured formula
and under Section 166 of the Principal Act,
legal representative/s can continue to
prefer any of the application mentioned
hereinabove for compensation as Sections
140, 163-A and 166 of the Principal Act
would continue to operate with full vigor
till the time Section 51 to 57 of the
Amendment Act are notified in the Official
Gazette.

16. Since, Sections 50 to 57 of the
Amendment Act are not notified, claimant/s
can still prefer an application u/s 140 of the
Principal Act independently or along with
an application for compensation u/s 166 of
the
Principal Act
or
in
alternative
claimant/s can prefer an application u/s
163-A
of
the
Principal
Act
for
compensation based on the structured
formula. It is to be remembered that w.e.f.
14th November, 1994 Section 166(3) of the
Principal Act, wherein the provision with
respect to condonation of delay was made,
has been omitted. Since now, there is no
provision which provides for seeking
condonation of delay, if an application for
compensation is filed beyond the period of
six months from the date of the accident
(Sub-section 3 of Section 166, as proposed
to be inserted by way of the Amendment
Act), till the time Section 53 of the
Amendment Act is notified, claimant/s are
not required to prefer an application for
condensation of delay.

17. I have enquired from Sri Ojha,
State Law Officer/Standing Counsel who
states that the position that 166 (3) has not
been brought on the statute book. What is
the position is that 166 of 1988 Act would
still govern the litigation as of today. The
alternative was also available to the learned
Tribunal but in sheer haste of disposal of
the matter, he lost sight of omnibus order of
Apext court of extending the period of
limitation. The other aspect was that the
family was bereaved of young son and
mother of one of the appellants passed
away due to covid. All these aspects have
not been looked into by the learned Judge.

18. This Court had called for the
remarks of the learned Tribunal by passing
the following order:-

"I have requested colleague of Sri
Rahul Sahai, learned counsel, to assist the
Court as he is on the panel of I.C.I.C.I
Lombard General Insurance Company
involved in the accident.
116 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned M.A.C.P. Tribunal has
dismissed the claim petition on the ground
that it is hit by Section 166 (3).

The matter be listed tomorrow,
i.e., 20.11.2020 as according to the
information with the undersigned, the
provisions of 166 (3) as amended by 2019
Act has not been notified, however, the
learned counsel for the appellants would
like to ascertain the same, hence, list the
matter as fresh.

Meanwhile,
office
to
have
clarification from the learned Judge by
telephonic message as to notification under
Section 166 (3) as amended. Send email to the
Tribunal as despite telephonic messages, the
learned Tribunal does not respond."

19. Sri Satya Nand Upadhyay, learned
Additional District & Sessions Judge/Incharge
Presiding Officer, Motor Accident claims
Tribunal, Gorakhpur has sent his remarks that
the notification appointing the date on which
the provisions of the Act shall come into force
does not subscribe Section 52 to 57 of the
amended Act.

20. This Court is thankful to Sri Satya
Nand Upadhyay, learned Judge/Tribunal for
reverting back to this Court at a short
notice.
Sri
Virjendra
Kumar
Singh,
Presiding Office, Motor Accident Claims
Tribunal shall remain more vigilant in
future while deciding the claim petition
under beneficial legislation.

21. In view of the above, I have no
hesitation in quashing and setting aside the
Judgment/order impugned. Claim petition is
ordered to be restored to file of Tribunal. The
Tribunal shall proceed as per 166 read with
Section 168 of the Motor Vehicle Act, 1988 as
till date amended section dealing with Chapter
X, XI XII of the act have not been brought on
statute book substituting the earlier provision.
Reference to the authoritative notification as
published on SCC online web edition
http://www.scconline.com, which also gives
glimpse of the amendments made. The
provisions of section 166 of the 2019 Act has
several implications which can be flagged,
namely, limitation, which was not there, has
been introduced. It appears that the Central
Government with a purpose not decided the
date for bringing in, has not brought the
provisions of amended Sections 52 to 57 which
relates to complete change to Chapter X, XI &
XII and, therefore, the amended Act has not
been brought on the statute book is very clear.
The scheme of the new regime would show that
they have not been brought on the statute book
by amending or repealing the earlier provisions
of Chapter X, XI & XII.

22. Copy of this order be circulated to
all the Motor Accident Claims Tribunal so
that this fallacy may not creep in the future
proceedings.

23. This Court is also thankful to Sri
Rahul Sahai for having deputed his
colleague Sri Akshat Darbari to this Court.

24. With these observations, this
appeal is allowed."
----------
(2020)12ILR A116
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J.

First Appeal From Order No. 1596 of 2020

Shri Balak Ram ...Appellant
Versus
N.I.C.L., Bareilly & Anr. ...Respondents

Counsel
for
the
Appellant: