JUDGMENT Prakash Krishna, J.
1. This is claimant's appeal. It arises out of the claim petition filed under the Motor Vehicles Act. The court below by the impugned order dated 24.7.1991, has refused to condone the delay of seven months and eleven days in filing the claim petition.
2. The appellant filed a claim petition before the Motor Accident Claims Tribunal along with an application under Section 5 of Indian Limitation Act for condonation of delay. It was filed on the allegation that on 26.10.1988 the applicant met with an accident at G.T. Road. His right foot was injured and he was hospitalized for treatment till 1.7.1989. After discharge from the hospital the present petition was filed on 2.9.1989. The Tribunal rejected the petition as barred by time on the short ground that the appellant did not file medical certificate in support of application for condonation of delay and, as such, was not prevented by sufficient cause for not filing the claim petition within time. The Tribunal was of the view that after discharge from Adarsh Nursing Home, on 1.7.1989, the claim petition could have been filed immediately thereafter. If the appellant was unable to come to the Court he could have got filed through some body or he could have sent the same by registered post.
3. Heard learned counsel for the parties and perused the record.
4. The facts of the case are not much in dispute. Learned counsel for the appellant in support of appeal has placed reliance upon the judgment of Apex Court in the case of Dhanna Lal v. D. P. Vijayvargia, AIR 1996 SC 2155, and submitted that the delay should have been condoned in the facts of the present case.
5. In contra learned counsel for the respondent has placed reliance upon judgment of this Court in Raghubir Singh v. Agra Cantonment Sahkari Awas Samiti Ltd., 2004 RD 139 and submitted that the present appeal is not maintainable.
6. Before coming to the merit of appeal it is desirable to decide about the maintainability of appeal. An appeal shall lie under Section 173 of the Motor Vehicles Act against an award passed under Section 168 of the Act. Learned counsel for the respondent submitted that since in the present case delay in filing the claim petition was not condoned, therefore, the said order is not appealable. In support of his submission he has placed reliance upon the aforesaid Division Bench judgment of this Court. On a careful reading of the aforesaid judgment of the Division Bench, it is clear that the same has no application to the facts of the present case. In that case, application to set aside the decree was filed which was rejected by the Court being barred by time. The order rejecting the application for condonation of delay was the subject-matter of appeal. In that background this Court took a view that the appeal was not maintainable. However, in the present case the facts are entirely different. As a result of refusal to condone the delay claim petition stands dismissed. The refusal to grant any compensation is as to whether the award has been passed after hearing the parties or at the threshold when the claim petition was filed and has been rejected, the said order is the award passed by the Claims Tribunal and is, therefore, appealable, under Section 173 of the Act.
7. Learned counsel for the respondent has placed reliance upon Lalloo Bharti v. Anwar, 1997 (31) ALR 160, a Division Bench judgment of this Court in support of the submission that the present appeal is not maintainable. The said ruling has no application to the facts of the present case. In the case it was held by this Court that no appeal lies under Section 173 of the Act against the order rejecting the prayer made for restoration of the claim dismissed in default. This Court was considering entirely a different set of facts in the aforesaid case and, as such, said ruling is distinguishable on facts.
8. Another technical objection was raised by the learned counsel for the respondent that in the memo of appeal provisions of Order XLIII, Rule 1 (r) of the Code of Civil Procedure has been mentioned, under which the present appeal has been filed. It is correct that the said provision has no application and it has wrongly been mentioned in the memo of appeal. The appeal shall lie under Section 173 of the Act. The appellate power of this Court can be traced with reference to Section 173 of the Act and, as such, wrong mention of the provision will not take away the appellate power of the Court, if it otherwise possesses. Therefore, the appeal is maintainable.
9. Now coming to the merit of the case I find that the Tribunal has failed to appreciate the aims and object of the Act. This Act has been enacted for the benefit of injured person or for the claimant in the case of death. The Apex Court in the case of New India Assurance Company v. C. Padma and Ors. has considered this aspect of the case in great detail. It has noticed the provision of the old Motor Vehicles Act, 1939 as well as of new Motor Vehicles Act, 1988, with respect to the period of limitation for filing the claim petition under the Act. The old Act of 1939 has been repealed and since there is a sea of change in the Act. In the old Motor Vehicles Act, 1939 (hereinafter referred to as the Act) Sub-section (3) of Section 110A provides :
"110A (3)-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 1939 Act was repealed with effect from 1.7.1989. The period of limitation prescribed in the new Act is provided under Sub-section (3) of Section 166. It reads :
"166 (3)-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 but not later than twelve months. If it is satisfied that the applicant was prevented by sufficient cause from making the application in time."
The Supreme Court in Dhannalal v. D.P. Vijayvargiya, AIR 1996 SC 2155, after examining the effect of the various amendments that have been brought about in the Act, stated in paragraph 6 as under :
"6. Before the scope of Sub-section (3) of Section 166 of the Act is examined it may be pointed out that the aforesaid Sub-section (3) of Section 166 of the Act has been omitted by Act 53 of the Motor Vehicles (Amendment) Act, 1994 which came in force with effect from 14.11.1994. The effect of the Amending Act is that w.e.f. 14.11.1994 there is no limitation for filing claims before the Tribunal in respect of any accident. It can be said that 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. In the present case itself the applicant claims that he met with the accident on 4.12.1990 and he was being treated as an indoor patient till 27.9.1991. According to Apex Court on its wisdom, Parliament rightly thought that prescribing a period of limitation and restricting the power of the Tribunal to entertain any claim petition beyond the period of 12 months from the date of the accident was harsh, inequitable and in many cases was likely to cause injustice to the claimants. The present case is a glaring example where the appellant has been deprived by the order of the High Court from claiming the compensation because of delay of only four days in preferring the claim petition."
10. In Para 7 of the aforesaid judgment Supreme Court has examined the effect of omission of Sub-section (3) of Section 166 of the Act. It has come to the conclusion that effect of deletion of Sub-section (3) from Section 166 of the Act will apply to the pending cases before the claims Tribunal, in appeal before the High Court or before the Supreme Court. In the last but one paragraph of the judgment Supreme Court has added that if any claim petition having been dismissed being barred by time either by the Tribunal or by the High Court, the claimant does not challenge the same and allowed the said judicial order to become final. In such circumstances the aforesaid Amending Act shall be of no help to such claimant. The reason being that the judicial order says that the said petition was barred by limitation and has attained finality. But the Supreme Court has further clarified that this principle will not govern the cases "where the dispute as to whether petition for claim having been filed beyond the period of 12 months from the date of accident is pending consideration either before the Tribunal, the High Court or this Court, in such cases benefit of Amendment of Sub-section (3) to Section 166 should be extended."
11. The aforesaid case has been recently followed by Supreme Court in the case of New India Assurance Company Limited v. C. Padma, 2003 (6) AWC 4636 (SC) : 2004 (1) SCCD 275 : 2003 AIR SCW 5027.
12. The ratio laid down in the above case New India Assurance Company Limited v. C. Padma and Ors. applies with full force to the facts of the present case. During the pendency of appeal Sub-clause (3) of Section 166 of the Act has been omitted. Presently there is no period of limitation for filing the claim petition in respect of the accident in question. The Supreme Court has noted that the Parliament realized grave injustice and injury caused to the heirs and legal representative of the victim of the accident, if the claim petition was rejected only on the ground of limitation. In view of the above authoritative pronouncement of Supreme Court presently there is no period of limitation for filing the claim petition. As such if the claim petition is filed today in respect of the accident in question, the same is liable to be adjudicated upon on merits, the plea of limitation shall not be open to the opposite parties of the claim petition. It is also fairly settled that subsequent change in law during the pendency of appeal can be taken into account by the appellate court. Stretching that principle of law, in the present case, I am of the opinion that the claim petition cannot be thrown out as barred by time. Therefore, the order of the Tribunal can not be sustained.
13. For the reasons given above the ratio of Supreme Court in the case of Vinod Gurudas Raikar v. National Insurance Company Limited and Ors., AIR 1991 SC 2156, on which strong reliance was placed by the learned counsel for the respondents is not applicable. In that case Supreme Court was not called upon to decide the effect of Motor Vehicles (Amendment Act), 1994 which came in force with effect from 14.11.1994.
14. Alternatively, the Tribunal committed illegality in not condoning the delay of filing of the claim petition. The delay of seven months and eleven days could have been condoned by the Tribunal as it was within its jurisdiction. The Supreme Court in the case of Land Acquisition Officer Collector Land Acquisition Anant Nag v. Mst. Katiji, AIR 1987 SC 1353, has held that in such cases the approach of Court should be justice-oriented. In this background, the subsequent amendment made by the Legislature in the Motor Vehicles Act providing no limitation for filing of the claim petition, delay, if any, should have been condoned by the Tribunal. The Tribunal has taken a very technical view of the matter. The Supreme Court has observed in the case of New India Assurance Company Limited (supra) that it can be said that the Parliament realized that grave injustice and injury which was being caused to the heirs and legal representative of the victim who died in an accident by rejecting the claim petition only on the ground of limitation. It is a matter of common knowledge that majority of the claim for such compensation or ignorance about the period during which such claim should be preferred.
15. During the course of hearing of appeal none of the counsel for the parties pointed out the fact that Sri Sharda Prasad Shukla, respondent No. 2 has expired on 16.3.1996 leaving behind him five sons as heirs and legal representatives. Learned counsel for the respondents in his written argument has mentioned this fact and has stated that the substitution application having been filed with delay on 11.9.2002 and there being no prayer for setting aside the abatement, appeal should be dismissed as such. Learned counsel for the appellant has filed an application for condonation of delay in filing the substitution application. The condonation of delay has been sought on the ground that the appellant is handicapped person and is unable to walk and could not know the fact about the death of respondent No. 2 and also due to financial constraint the application could not be filed earlier. In the counter-affidavit the fact that the appellant is handicapped person and is unable to walk has not been specifically denied. Looking to the facts and circumstances of the case the delay in filing substitution application is condoned. The Apex Court has laid down that in such cases delay should be condoned and the substitution application should be rejected only in exceptional circumstances. Looking to the facts and circumstances of the case the delay in filing substitution application to substitute heirs of deceased respondent No. 2 Sri Sharda Prasad Shukla is condoned and the substitution application is allowed. In the written argument it has been further stated that out of five sons of the deceased, respondent No. 2, the truck in question was inherited only by the two sons namely Sri Bharat Shanker Shukla and Sri Vishnu Shanker Shukla. However, in the interest of justice in place of Sharda Prasad Shukla all his sons namely Rama Shanker Shukla, Jai Shanker Shukla, Bharat Shanker Shukla, Vishnu Shanker Shukla and Shiv Shanker Shukla are allowed to be substituted.
16. In the result, I find sufficient force in the appeal. The appeal is allowed. The judgment and order of the Tribunal is set aside and it is held that the claim petition filed by the claimant is within time. The Tribunal shall register the claim petition as regular claim petition and will decide the same on merits in accordance with law. There will be no order as to costs.