M.Pachamuthu v. J.Ramesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.04.2023
CORAM:
THE HONOURABLE Dr. JUSTICE D. NAGARJUN Civil Revision Petition.No.776 of 2023 M.Pachamuthu ... Petitioner Vs.
1. J.Ramesh 2.IFFCO-TOKIO General Insurance Company Limited, represented by its Branch Manager, KING STONE PARK, No.19/1, 2nd Floor, First Main Road, Opposite Aruna Theatre, Anjeneyapuram, Ramalinga Nagar, Woraiyur, Trichy-620 017.
... Respondents Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India seeking to set aside the docket order passed in M.C.O.P.SR.22 of 2023 on the file of the Motor Accidents Claim Tribunal, Perambalur, dated 12.01.2023 and consequently direct Tribunal to number and dispose of the same in accordance with law.
For Petitioner : Mr.S.Kamadevan 1/9
ORDER
Heard the learned counsel for the petitioner/claimant and perused the materials available on record.
2. This Civil Revision Petition is filed by the petitioner aggrieved by the orders dated 12.01.2023 made in M.C.O.P.SR.22 of 2023 on the file of the Motor Accidents Claim Tribunal, Perambalur, returning the claim petition on the ground of limitation.
3. M.C.O.P.SR.No.22 of 2023 is filed seeking compensation under Section 166 of Motor Vehicles Acts, in respect of injuries received in the accident that had taken place on 20.02.2022. However same is returned with an endorsement that claim of the claimant is barred by limitation on account of the amendment to the Motor Vehicles Act came into force by Act 32 of 2019 with effect from 01.04.2022. Learned trial Judge has passed order based on the order passed in C.R.P.(PD).No.4066 of 2022, in which this Court has held that claim made beyond period of limitation as per Amendment Act 32 of 2019 is barred by limitation.
4. Learned counsel for the petitioner/claimant submitted that in a 2/9
similar case, the High Court of Kerala has passed an order in Sathy vs.Dileep, reported in 2022 (2) TN MAC 1 (Ker.), O.P.(MAC).No.51 of 2022 wherein direction was given to approach the Tribunal concerned to admit M.C.O.P., and proceed with the case. Para Nos.7 to 10 of the judgment of the Kerala High Court reads as follows: "7. It is a matter of record that when the old Motor Vehicles Act 1939 was substituted and repealed by Act of 1988, the provision of limiting the right to file claim petition was six months. The aforementioned period of six months was omitted by way of amendment in the year 1994. Thus, the affected parties had a right to file claim petition in a case of injury or death at any point of time untrammeled by the objection of limitation. Legislature in the wisdom on due deliberation have reintroduced the O.P.(MAC) No.
51/2022 6 aforementioned erstwhile provisions of sub-section (3) of Section 166 limiting the right to entertain the claim petition before the concerned court within a period of six months from the date of the accident. The accident in this case, as noticed above, had occurred on 23.5.2019. The claim petition was filed on 23.4.2022. By that time the new amendment had already come into force by Act 32 of 2019 effective from 1.4.2022 resulting into the impugned order.
"This application is filed under Section 166(1) of MV Act, 3/9
1988. The date of accident is 23.5.2019. As per Motor Vehicle (Amendment) Act, 2019, which came into force with effect from 1.4.2022, the application to be filed within six months of the occurrence of the accident (vide Section 166(3) of the M.V.Act, 1988). The present application filed on 23.4.2022 is barred by limitation. In the result, this application is rejected as time barred."
8. It is settled law that in case there is no provision protecting the rights of a litigant viz by causing amendment which inexplicably takes away exceptional rights, then the provisions of Section 6 of General Clauses Act, 1897 would come into play. Similar situation had occurred when the amendment was caused in the old Act of 1939 by introducing Act of 1988 wherein in a case of no fault liability the maximum compensation of MACT award was Rs.15,000/-. The High Court while entertaining the appeal by O.P.(MAC) No.51/2022 7 taking aid of the amended provisions of Section 140 introduced by way of 1988 amendments gave the benefit of Rs.50,000/-. The aforementioned objection was assailed before the Supreme Court in a matter reported in State of Punjab and others v. Bhajan Kaur and others [2008
(3) KHC 823]. After deliberation on the issue, it was held that when there is no introduction or omisision of the provisions of the Act, there is no intention of the legislature to have its prospective or retro-active applicability and in such circumstances, the amendment caused in the new Act 4/9
would have a prospective effect. It would be expedient to extract paragraphs 13, 16 and 17 of the above judgment : "13. No reason has been assigned as to why the 1988 Act should be held to be retrospective in character. The rights and liabilities of the parties are determined when cause of action for filing the claim petition arises. As indicated herein before, the liability under the Act is a statutory liability. The liability could, thus, be made retrospective only by reason of a statute or statutory rules. It was required to be so stated expressly by the Parliament. Applying the principles of interpretation of statute, the 1988 Act cannot be given retrospective effect, more particularly, when it came into force on or about 1.07.1989. ...................
16. Section 6 of the General Clauses Act, therefore, inter alia saves a right accrued and/ or a liability incurred. It does not create a right. When Section 6 applies only an existing right is saved thereby. The existing right of a party has to be determined on the basis of the statute which was applicable and not under the new one. If a new Act confers a right, it does so with prospective effect when it comes into force, unless expressly stated otherwise. Section 140 of the 1988 Act does not contain any procedural provision so as to construe it to have retrospective effect. It cannot enlarge any right. Rights of the parties are to be determined on the basis of the law as it then stood, viz., before the new Act come into force.
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17. It is now well-settled that a change in the substantive law, as opposed to adjective law, would not affect the pending litigation unless the legislature has enacted otherwise, either expressly or by necessary implication."
9. Section 6 of the General Clauses Act, 1897 postulates the situation of a similar nature where by protecting right, privilege, obligation or liability acquired or accrued under any repealed enactment. It is settled law that the provisions of the new Act cannot infringe or re-ligate the right granted under the old Act. Section 6 of General Clauses Act reads thus : "6 Effect of repeal.
continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." 10. Since while introducing the Act of 2019 effective from O.P.(MAC) No.51/2022 9 1.4.2022, Legislature did not cause any amendment in the repealing and savings clause specifying its applicability in respect of the accidents occurred prior to the introduction of the amendment, in view of the provisions of Section 6 and the observations of the Supreme Court in the judgment in State of Punjab and others v. Bhajan Kaur and others (supra), I am of the view that the applicability of the Act i.e., introduction of the old provisions of subsection (3) of Section 166, would have a prospective effect and the limitation period of six months would apply after introduction of the amendment i.e.
, post 1st April 2022. In other words, in any accident occurred after 1.4.2022, provisions of the amendment caused in the Act prescribing the limitation to entertain a claim petition, the parties would be governed by the same but not in respect of the persons whom a right had already accrued and was available if the amendment had not been caused. For the reasons aforementioned the impugned order is set aside. Original petition is allowed. The MACT is directed to entertain the claim petition preferred and try the case on merits.
liberty to put an appearance before the MACT as it will save the time O.P.(MAC) No.51/2022 10 regarding service of the Insurance Company. The parties are directed to appear before the MACT on 7.7.2022."
Dr.D.NAGARJUN, J.
jai
5. Considering the above facts and circumstances, this Civil Revision Petition is disposed of with a direction to the learned District Judge, Perambalur, to reconsider the claim petition in the light of the above judgment of the High Court of Kerala. The learned counsel for the petitioner is directed to resubmit the M.C.O.P.SR.No.22 of 2023 within a period of three weeks from the date of receipt of a copy of this order and thereafter, the learned District Judge, Perambalur, is directed to hear the petitioner. Taking into consideration, the orders passed in O.P.(MAC).No.51 of 2022 by the High Court of Kerala and consider to register the same if it is otherwise in order.
6. With the above directions, this Civil Revision petition is disposed of. No costs.
19.04.2023 8/9
jai To The Motor Accidents Claim Tribunal, Perambalur. C.R.P.No.776 of Note: Registry is directed to return the petition in M.C.O.P.SR.No.22 of 2023 to the petitioner.
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