# NEW INDIA INSURANCE CO. LTD v. SMT. SHANTI MISRA, ADULT

- **Citation:** [1976] 2 S.C.R. 266
- **Court:** Supreme Court of India
- **Decided:** 1975-10-10
- **Case number:** Civil Appeal No. 210 of 1975
- **Bench:** A. Alaguuswami, P. K. Goswami, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/new-india-insurance-co-ltd-v-smt-shanti-misra-adult-6784
- **Pages:** 8

## Headnote

Motor Vehicle Act (4 of 1939), ss. llOA to HOF-Limitation in case o/
accidem before constitution of Tribunal and application for compensation filed
beyond 2 months of the constitution of the Tribunal.
Section 110,A(3) of the Motor Vehicles Act, 1939 before its amendment in
1970, provided that no application for compensation arising out of an accident
of the nature spedfied in s. 110 (1) shall be entertained by the Claims Tribunal
unless it is made within 60 days of the occurrence of the accident. Under its
proviso, the Claims Tribunal has power to excuse any delay
in filing
the
application if it was satisfied that the applicant was prevented by sufficient cause.
S. 11 OF bars the jurisdiction of the Civil Court, as soon as the Claims Tribunal
is constituted.
As a result of an accident in September, 1966, the husband cif the respondent
died.
The limitation for filing a suit is 2 years from the date of accident under
Art. 82. Limitation Act. 1963.
On 18th March, 1967, the State Government
constituted the Claims Tribunail
under s. 110. The respondent filed an
application for compensation on July 8, 1967. The Tribunal and the High
Court held that the Tribunal conld entertain the application.
Dismissing the appeal to this Cou.rt,
HELD : (1) The change in law effected by the introduction of ss. llOA
to 110F in 1956 was only a ,change of forum, that is, a change of adjectival
or procedural law and not of su1Ystantive law.
Such a ,change of law operates
retrospectively and the person has to go to the new forum even if his cause
of action or right of action accrued prior to the change of forum, because,
though he has a vested right of action, he has no vested right of forum. The
expressions "arising out of an accident" occurring in s. 11 OA ( 1) and "over
the area in which the accident occurred" in s. 110A(2), and the absence of
express words making the new forum avaifable only to causes of action arising
after the creation of the Tribunal, show that the change of forum was mcan,t
to operate retrospectively irrespective of when the aceident occurred. [270E-G]
(2) The underlying principle of the change of law was to enable the
claimants to have a cheap remedy of approaching the Claims Tribunals on
payment of a nominal court-fee instead of an ad valorem
amount in the
Civil Court. Pending suits are not to be affected, but the Legislature wanted
the cheap remedy to be available as soon as a Tribunal was constituted by
the State Governments, in all cases, irrespective of the date of the accident,
provided the remedy of going to the court was not barred on the date of
the constitution of' the Tribunal.. [271C-E]
(3) Therefore, if the accident had occurred within 60 days prior fo the
constitution of the Tribunal then it could be said that an application to the
Tribunal was the only remedy.
If such an application could not be made
within 60 days, then the Tribunal has the power to condone the delay under
the proviso.
But if the accident occurred more than 60 days before the constitution of the Tribunal, it could be contended either, (a) that such a case
will be a fit one where the Tribunal would be able to condone the delay under
the proviso. But if the accident occurred more than 60 days before fhe consto entertain such an application and the remedy of going to the Civil Court
in such a situation was not barred under s. llOF. [270H-271B]
( 4) Since the change of forum is retrospective it could not be contended
that recourse to suit would still be available under the old law of limitation.
[273B-CJ
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NEW INDIA INSURANCE V.
SI~ANTI MISRA
267
(5) But, taking recourse to the proviso to s. uqA(3) for exci.:si~g !he
delay in applying to the Tribunal is not correct. Sec!lon 5 of the Lmutatton
Act 1963 or the proviso to s. 110A(3) of the Act, are meant to condone
the' default of the party on the ground of sufficient cause. But if a p~rty is
not' able to file an application for no fault of his, but because the Tnbunal
was not in existence,

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NEW INDIA INSURANCE CO. LTD.
v.
SMT. SHANTI MISRA, ADULT
October 10, 1975
(A. ALAGUUSWAMI, P. K. GOSWAMI AND N. L. UNTWALIA, JJ.J
Motor Vehicle Act (4 of 1939), ss. llOA to HOF-Limitation in case o/
accidem before constitution of Tribunal and application for compensation filed
beyond 2 months of the constitution of the Tribunal.
Section 110,A(3) of the Motor Vehicles Act, 1939 before its amendment in
1970, provided that no application for compensation arising out of an accident
of the nature spedfied in s. 110 (1) shall be entertained by the Claims Tribunal
unless it is made within 60 days of the occurrence of the accident. Under its
proviso, the Claims Tribunal has power to excuse any delay
in filing
the
application if it was satisfied that the applicant was prevented by sufficient cause.
S. 11 OF bars the jurisdiction of the Civil Court, as soon as the Claims Tribunal
is constituted.
As a result of an accident in September, 1966, the husband cif the respondent
died.
The limitation for filing a suit is 2 years from the date of accident under
Art. 82. Limitation Act. 1963.
On 18th March, 1967, the State Government
constituted the Claims Tribunail
under s. 110. The respondent filed an
application for compensation on July 8, 1967. The Tribunal and the High
Court held that the Tribunal conld entertain the application.
Dismissing the appeal to this Cou.rt,
HELD : (1) The change in law effected by the introduction of ss. llOA
to 110F in 1956 was only a ,change of forum, that is, a change of adjectival
or procedural law and not of su1Ystantive law.
Such a ,change of law operates
retrospectively and the person has to go to the new forum even if his cause
of action or right of action accrued prior to the change of forum, because,
though he has a vested right of action, he has no vested right of forum. The
expressions "arising out of an accident" occurring in s. 11 OA ( 1) and "over
the area in which the accident occurred" in s. 110A(2), and the absence of
express words making the new forum avaifable only to causes of action arising
after the creation of the Tribunal, show that the change of forum was mcan,t
to operate retrospectively irrespective of when the aceident occurred. [270E-G]
(2) The underlying principle of the change of law was to enable the
claimants to have a cheap remedy of approaching the Claims Tribunals on
payment of a nominal court-fee instead of an ad valorem
amount in the
Civil Court. Pending suits are not to be affected, but the Legislature wanted
the cheap remedy to be available as soon as a Tribunal was constituted by
the State Governments, in all cases, irrespective of the date of the accident,
provided the remedy of going to the court was not barred on the date of
the constitution of' the Tribunal.. [271C-E]
(3) Therefore, if the accident had occurred within 60 days prior fo the
constitution of the Tribunal then it could be said that an application to the
Tribunal was the only remedy.
If such an application could not be made
within 60 days, then the Tribunal has the power to condone the delay under
the proviso.
But if the accident occurred more than 60 days before the constitution of the Tribunal, it could be contended either, (a) that such a case
will be a fit one where the Tribunal would be able to condone the delay under
the proviso. But if the accident occurred more than 60 days before fhe consto entertain such an application and the remedy of going to the Civil Court
in such a situation was not barred under s. llOF. [270H-271B]
( 4) Since the change of forum is retrospective it could not be contended
that recourse to suit would still be available under the old law of limitation.
[273B-CJ
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NEW INDIA INSURANCE V.
SI~ANTI MISRA
267
(5) But, taking recourse to the proviso to s. uqA(3) for exci.:si~g !he
delay in applying to the Tribunal is not correct. Sec!lon 5 of the Lmutatton
Act 1963 or the proviso to s. 110A(3) of the Act, are meant to condone
the' default of the party on the ground of sufficient cause. But if a p~rty is
not' able to file an application for no fault of his, but because the Tnbunal
was not in existence, it will not be a case where it can be said that the
applicant was prevented by sufficient cause from making t~e application in
time within the me~ning of the prnviso. However, the application would not
be barred under s. 110A(3), because, (a) though time had started running
for the filing of the suit, but since before it expired the forum was changed,
for the purpose of the changed forum, time could not be deemed to have
started running· before the remedy of going to the new forum is made available; and (b) though generally the law of limitation which is in vogue on
the date of the commencement of the action governs it. a new law of limitation providing a 1onger period cannot revive a dead remedy, and similarly,
a new Jaw of limitation providing for a shorter period cannot suddenly extinguish a vested right of a.ction by providing a shorter period of limitation.
[271E-272C] ·
Since there is a change of forum, the reasonable view to take would be
that the application can be filed within a reasonable time of the constitution
of the Tribunal, which ordinarily and generally, would be the time of limitation mentioned in sub-s. (3); and if the application could not be made within
that time from the date of the constitution of the Tribunal in a given case,
the further time taken may be held to be reasonable on the facts of that
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case, or the delay can be condoned under the proviso to that section. [273E]
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Therefore, in the present case, the jurisdiction of the Civil Court is ousted
as soon as the Claims Tribunal was constituted and the filing of the application
before the Tribunal was the only remedy available to the respondent. Since
the law was not clear on the point, the time of about four months taken
in approaching the Tribunal after its constitution can be held to be either
reasonable time or the delay of about two months could be condoned under
the proviso to s. 1 lOA (3). [273FJ
Unique Motor and General Insurance Co. Ltd., Bombay v. Kartar Singh
and another, AIR 1965 Pun. 102; Mis. V, C. K. Bus Service (P) Ltd, Coimbat01·e and another v. H. S. Sethna and others, A.I.R. 1965 Mad. 149; Palani
Ammal and others v. The Safe Service Ltd. Salem and others, I.L.R. [1965) 2
Mad. 145: Natwarlal Bhikhalal Shah v. Thakarda Khodali Kalaji and others,
I.L.R. 1967 Guj. 495; Yd;lav Motor Transport Co. and others v. ]af?dish
Prasad Bhimganj Ward Kora, A.I.R. 1969 Raj. 316: Thomas and others v.
Messrs Hotz Hotels Ltd. and oth!ers, A.J.R. 1969 Delhi ·3; Delhi and London
Bank Ltd. v. Me/moth A. D. Orchard, 4 I.A. 127;
Gopeslzwar Pal v. Jiban
!) Chandra Chandra Jenkins, I.T.R. 41 Cal. 1125 and Rajah Meherban-l-Doston
Sri Raja Row V. K. M. Surya Row Bilhadur, Sirdar, Rajahmundry Sircar and
Rajah of Pittapur v. G. Venkata Sublbq Row and five others, I.LR. 34 Mad .
645. referred to.
Observations contra in Khatumal Ghanslzamdas v. Abddul Qadir Jamaluddin
and others. AIR 1961 M.P. 295; Kumari Sushma Mehta v. Central Provinces
Transport Services Ltd. and others, AIR 1964 M.P. 133 and The Bihar Cooperative Motor Vehicles Insurance Society Ltd.
v.
Rameshwar Rawt
and
others, AIR 1970 Patna 172, disapproved.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 210 of 1975.
,_,
From the Judgment and Order dated the 13th October, 1971
of
the Allahabad High Court in Special Appeal No. 114 of 1969.
D. D. Chawla and H. K. Puri for the Appellant.
J. B. Goyal, D. P. Mukherjee and S. P. Singh for Respondents
Nos. 1-3.
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SUPREME COURT REPORTS
[1976] 2 S.C. R.
The Judgment of the Court was delivered by
UNTWALIA, J.-This is an appeal by certificate of fitness granted'
by the Allahabad ,.High Court.
The question of law which falls
for
determination in this appeal is whether an application for compensation filed under section llOA of the Motor Vehicles Act, 1939 (for
brevity, the Act), arising out of an accident which
occurred
more
than 60 days before the constitution of the Motor Accidents Claims·
Tribunal under section 110 could be entertained by the Tribunal or the
remedy of the aggrieved person was to institute a civil suit.
On the 11th September 1966 occurred an accident in which
Shri Amar Nath Misra, husband of respondent no. 1 and father of
respondents 2 and 3 met his death due to collision between his motorcycle and a truck owned by appellant no. 2 and insured with appellant
no. 1. A cause of action accrued to the respondents 1, 2 and 3 (hereinafter called the respondents) to claim compensation as legal representatives of the deceased under the Indian Fatal Accidents Act, 1855.
A suit could be brought under Article 82 of the Limitation Act, 196'.J
within two years of the occurrence of the accident. But in the meantime the Government of Uttar Pradesh constituted the Claims Tribunaf
under section 110 of the Act, by a notification published in the Gazette
of the 18th March, 1967. The respondents filed an application under
section 1 lOA on the 8th July, 1967. The appellants objected to the
jurisdiction of the Tribunal to entertain the application. The Tribunal
over-ruled the objection and held that it had jurisdiction to entertain
the application.
The appellants filed a writ application in the High
Court which was allowed by a learned single Judge. In appeal filed by
the respondents there was a difference of opinion between the two
judges constituting the Division Bench. On reference to a third judge
the ultimate view taken by the High Court was that the Tribunal had
iudsdiction to entertain this application. Hence this appeal.
The Act was amended by Central Act 100" of 1956 with effect from
tbe 16th February 1956. The original section 110 was doleted and
new sections 110 to llOF were introduced. The Claims Tribunals.
however, were not constituted by the State Governments at one and the
same time.. They were constituted with defferent dates for differnt
areas.
Until and unless the Claims Tribunals were constitutcci the
provisions of the new sections introduced in the year 1956 could not be
availed of. But as soon as a Claims Tribunal was constituted the jurisdiction of the Civil Court was barred by section 11 OF . which reads as
follows:
"Where any Claims Tribunal has been constituted for any
area, no Civil Court shall have jurisdiction to entertain any
question relating to any claim for compensation which may
be adjudicated upon by the Oaims Tribunal for that area,
and no injunction in respect of any action taken or to be
taken by or before the Claims Tribunal in respect of the
claim for compensation shall be granted by the Civil Court."
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NEW INDIA INSURANCE v. SHANTI MISRA (Untwalia, J.)
269
.
But difficulties arose in giving full effect to the bar of jurisdiction of
the Civil Court because of the language of section 11 OA prnviding for
the filing of an application for compensation. There could n?t ~e any
debate or dispute that if an accident occurred after the constttut10n of
the Claims Tribunal, the only remedy of the claimant was to fi'.e an
application under section 11 OA.
The jurisdiction of the _Civil
Court
in such a case was ousted in express language.
Suits which had been
instituted prior to the constitution of the Claims Tribunal remained unaffected and had to proceed to disposal in Civil Courts. In a third type
of case· also there could not be much scope for debate where an accident had occurred prior to the constitution of the Tribunal and
the
remedy of the suit was barred on the date of such constitution. A
barred remedy under no circumstances was meant to be revived under
section llOA.
But the difficulty arose in cases where accidents had
occurred prior to the constitution of the Claims Tribunal, the remedy
of action in Civil Court was alive but no suit had been filed. In such
cases the vested right of action was not meant to be extingui5hed. The
remedy of either an application under section llOA or a
civil
suit
must be available; surely not both. Majority of the High Courts have
expressed the view that in such a situation the only remedy available
was that of filing an application before the Tribunal and the jurisdiction
oI Civil Court was barred. Vide Unique Motor and General Insurance
Co. Ltd., Bombay v. Kartar Singh and another;( i) M / s V. C. K. Bus
Service (P) Ltd. Coimbatore and another v.
H.
B.
Sethna and
others;(') Palani Ammal and others v. The Safe Service, Ltd., Salem
and others;(3) Natverlal Bhikhalal Shah v. Thakarda Khodaii Kalaji
and others;(4 ) Yadav Motor Transport Co. and others
v.
Jagdish
Prasad Bhimgdnj Ward Kota( 5 ) and Thomas and others v.
Messrs
Hotz Hotels Ltd. and others(6).
A contrary view was taken by the
Madhya Pradesh High Court in Khatumal Ghanshamdas v. Abddul
Qadir Jamaluddin and others( 7 ); K,umari Sushma Mehta v. Central
Provinces Transport Services Ltd. and others( 8 ).
In the first case of
Madhya Pradesh observations were obiter dicta because on facts it was
a case of a pending suit. Similar obiter dicta were made by a Bench of
the Patna High Court following the Madhya Pradesh decisions in the
case of The Bihar Co-operative Motor Vehicles, Insurance Societv Ltd.
v. Rameshwar Raut and others( 9). The question falls for determination in this Court for the first time and we have to decide which of the
two views is correct.
We shall now read section 11 OA as it 'stood at the relevant lime :
"110A. (1) An application for compensation arising out
of an accident of the nature specified in sub-section ( f) of
section 110 ma:v be made-
(a) by the person who has sustained the injury; or
(I) A. I. R. 1965 Punjab, 102.
(2) A. J. R. 1965 Madras, 149.
(3) I. L. R. [1965] 2 Madras, 145.
(4) I. L. R. [1967] Gujarat, 495.
(5) A. I. R. 1969 Rajasthan, 316.
(6) A. J. R. 1969 Delhi, 3.
(7) A. J. R. 1961 Madhya Pradesh, 295.
(8) A. J. R. 1964, M. P., 133.
(9) A. J. R. 1970, Patna, 172 (paras 7 and 8)
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SUPREME COURT REPORTS
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(b) where death has resulted from the accident, by all or
any of the legal representatives of the deceased; or
( c) by any agent duly authorised by the person injured
for all or any of the legal representatives of the deceased, as the case may be;
Provided that where all the legal representatives of the.
deceased have not joined in any such application for compensation, the application shall be made on behalf of or for
the benefit of all the legal representatives of the deceased
and the legal representatives who have not so joined, shall
he impleaded as respondents to the application.
( 2) Every application under sub-section
( 1) shall be
made to the Claims Tribunal having jurisdiction over the nrea
in which the accident occurred, and shall be in such form and
shall contain such particulars as may be prescribed.
(3) No application for compensation under this section
shall be entertained unless it is made within sixty days of the
occurrence of the accident :
Provided that the Claims Tribunal may entertain the
application after the expiry of the said period of sixty days
if it is satisfied that the applicant was prevented b¥ sufficient
cause from making the application in time."
A period of six months was substituted in place of sixty days in subsection (3) by Act, 56 of 1969 with effect from 2-3-1970.
On the plain language of sections llOA and llOF there should be
no difficulty in taking the view that the change in law was merely a
change of forum i.e. a change of adjectival or procedural law and not
of substantive law.
It is a well-established proposition that such a
change of law operates retrospectively and the person has to go to the
new forum even if his cause of action or right of action accrued prior
to the change of forum. He will have a vested right of action but not
a vested right of forum. If by express words the new forum is made
available on~y to causes of action arising after the creation of the forum,
then the retrospective operation of the law is taken away.
Otherwise
the general rule is to make it retrospective. The expressions "arising
out of an accident" occurring in sub-section (1) and "over the area in
which the accident occurred", mentioned in sub-section
(2)
clearly
show that the change of forum was meant to be operative retrospectively
irrespective of the fact as to when the accident occurred To that extent there was no difficulty in giving the answer in a simple way. But
the provision of limitation of 60 days contained in sub-section (3)
created an obstacle in the straight application of the well-established
principle of law. If the accident had occurred within 6() days prior to
the constitution of the Tribunal then the bar of limitation provided in
sub-section ( 3) was not an impediment. An· application to the Tribunal could be said to be the only remedy. If such an application, due
to one reason or the other, could not be made within 60 days then the
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NEW INDIA INSURANCE v. SHANTI MISRA (Untwalia, 1.)
271
Tribunal had the power to condone the delay under the provjso._ But
if the accident occurred more than 60 days before the constitution of
the Tribunal then the bar of limitation provided in sub-section ( 3) of
section 11 OA on its face was attracted.
This difficulty of limitation
led most of the High Courts to fall back upon the proviso and say
that such a case will be a fit one where the Tribunal would be able to
condone the delay under the provifo to sub-section (3), and led others
to say that the Tribunal' will have no jurisdiction to entertain such an
, application and the remed1Y of going to the Civil Court in such a situation was not barred under section 110F of the Act. While taking the
latter view the High Court failed to notice that primarily the law engrafted in sections 1 lOA and 1 lOF was a law relating to the change of
forum.
In our opinion in view of the dear and unambiguous language of
sections 110A and llOF it is not reasonable and proper to allow the
law of change of forum give way to the bar of limitation provided in
sub-section (3) of section 110A. It must be vice versa.
The change
of the procedural law of forum must be given effect to.
The underlying principle of the change of law brought about by the amendment
in the year 1956 was to enable the claimants to have a cheap remedy
of approaching the Claims Tribunal on payment of a nominal court fee
where as a large amount of ad valorem court fee was required to be
paid in Civil Court. It is legitimate to think that the legislature did
not think it necessary to affect the pending suits but wanted the cheap
remedy to be available as soon as the Tribunal was constituted by the
State Governments, in all cases, irrespective of the date of the acddent,
provided the remedy of going to the Court was not barred on the date
of the constitution of the Tribunal. Then, how is the difficulty of limitation in such cases to be solved is the question.
In our opinion taking recourse to the proviso appended to subsection (3) of section 110A for excusing the delay made. in the filing
of the application between the date of the accident and the date of the
constitution of the Tribunal' is not correct.
Section 5 of the Limitation
Act, 1963 or the proviso to sub-section (3) of the section llOA of
the Act are meant to condone the 'default of the party on the ground
of sufficient cause.
But if a party is not able to file an application for
no fault of his but because the Tribunal was not in existence, it will not
be a case where it can be said that the "applicant was prevented by
sufficient cause from making the application in time" within the meaning of the proviso.
The time taken between the date of the accident
and the constitution of the Tribunal cannot be condoned under the
proviso.
Then, will the application be barred under sub-section ( 3)
of section llOA? Our answer is in the the negative and or two
reasons :
( 1) Time for the purpose of filing the application tmder
section l1 OA did not start running before the constitution of the Tribunal.
Time had started running
for the filing; of the suit but before it had expired the.
forum was changed.
And
for the purpose of tile
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SUPREME COURT REPORTS
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changed forum, time could not be deemed to have
started running before a remedy of going to the new
forum is made available.
(2) Even though by and large the law of limitation has
been held to be a procedural law, there arc exceptions to this principle.
Generally the law of !imitation which is in vogue on the date of the commenc~
ment of the action governs it.
But there are certain
exceptions to this principle.
The new law of limitation providing a longer period cannot revive a dead
remedy.
Nor can it suddenly extinguish vested right
of action by providing for a shorter period of limitation.
In Delhi and London Bank, Limited v. Me/moth A. D. Orchard(1)
•
Sir Barnes Peacock delivering the judgment on behalf of the Board'
said at page 135 :
"Indeed, if the construction put upon theAct by· the
High Court at Bombay, and by the Chief Court in the Punjab, is correct, a judgment creditor could not, after the three
years, have enforced a judgment which was in force in the
Regulation Provinces when Act XIV of 1859 was passed, or
a judgment which was in force in the Punjab at the
time
when the Act was extended to that province, however diligent he might have been in endeavouring to enforce his judgment, and however unable, with the use of the utmost diligence, to get at the property of his debtor. Such a construction would cause great inconvenience and injustice, and give
the Act an operation which would retrospectively deprive the
creditor· of a right which he had under the law as it existed
in the Regulation Provinces at the time of the passing of the
Act, and in the Punjab at the time of the introduction of
it."
In Gopeshwar Pal v. Jiban Chandra Chandra(2),
Jenkins, C.L
delivering the judgment on behalf of the majority of the Full Bench
...
said at page 1141 :
,..
"Here the plaintiff at the time when the amending Act
was passed had a vested right of suit, and we see nothing in
the Act as amended that demands the construction that the
plaintiff was thereby deprived of a right of suit vested in him·
at the date of the passing of the Amending Act. It is not
(in our opinion) even a fair reading of section 184 and the
third Schedule of the Bengal Tenancy Act, as amended, to
hold that it was intended to impose an impossible condition
under pain of the forfeiture of a vested right, and we can only
construe the amendment as not applying to cases where its
provisions cannot be obeyed."
(1) 4 Indian Appeals, 127.
(2) I. L. R. XLI Calcutta, 1125.
...
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NEW INDIA INSURANCE v. SHANTI MISRA ( Untwalia, ]. )
2 7 3
1he majority of the Full Bench of the Madras High Court in Rajah
Sahib Meharban-1-Doston Sri Raja Row V. K. M. Surya Row Bahadur Sirdar, Rajahmundry Sircar and Rajah of Pittap11r v. G, Venkata
Sub,ba Row and five others(!) has taken the same view following the
Full Bench decision in Gopeshwar Pal's case at page 650. Amendment
of the law of limitation could not destroy the plaintifi's right ef action
which was in existence when the Act came into force. . We are conscious of the distinction which was sought to be made in the application
of these principles. It was said that the right could not be 9e~troyed
but recourse to suit would be available under the old law of bm1tauon.
We, however, think that giving retrospective effect to the change of law
in relation to the forum, in the context of the object o( the change, is
imperative.
That being so the principles aforesaid Jor overcoming the
bar o_f limitation will be applicable.
Apropos the bar of limitation provided in section 110A(3), one
can say, on the basis of the authorities aforesaid that strictly speaking,
the bar does not operate in relation to an application for compensation
:irising out of an accident which occurred prior to the constitution of
the Claims Tribunal.
But since in such a case there is a cli.ange of
forum, unlike the fact of the said cases, the reasonable view to take
would be that such an application can be filed within a reasonable time
of the constitution of the Tribunal, which ordinarily and generally,
would be the time of limitation mentioned in sub-section ( 3). If the
app!ication could not be made within that time from the date of the
constitution of the Tribunal, in a given case, the fμrther time taken in
the making of the application ma1y be held to be the reasonable time
on the facts of that case for the making of the application or the delay
made after the expiry of the period of limitation provided in subsection ( 3) from the date of the constitution of the Tribunal can be
condoned under the proviso to that sub-section.
In any view of the
matter, in our opinion, the jurisdiction of the Civil Court is ousted as
s_oon as the Claim~ Tribunal is constituted and the filing of the application before the Tribunal is the only remedy availabie to the claimant.
On the facts of this case, we hold that the remedy available to the respondents was to go before the Claims Tribunal and since the law was
not very clear on the point, the time of about four months taken in
approaching the Tribunal after its constitution can be held to be either
a reasonable .time or the delay of less than 2 months could well be
condoned under the proviso to sub-section ( 3) of section 11 OA.
For the reasons stated above, we dismiss this appeal with costs to
respondents 1, 2 and 3.
V.P.S.
A ppeul dismissed.
(1) I. L. R. XXXIV Madras 645.
A
c
E
F