JUDGMENT
K.S. Radhakrishnan, J.
1. M.F.A. No. 850 was filed with a petition to condone the delay of 3307 days. M.F.A. No. 511 of 2000 was filed with a petition to condone the delay of 3320 days. M.F.A. No. 43 of 2000 was filed with a petition to condone the delay of 3211 days. In M.F.A. No. 511 of 2000 counter affidavit has been filed by the second respondent opposing the petition for condonation of delay. Same is the stand of the second respondent in the other two cases also.
2. Before examining the question as to whether petitions to condone the delay in all these appeals are to be allowed or not, we may examine the facts in these cases which has some bearing with regard to the exercise of discretion by this Court in condoning the delay.
3. Claim petitions arise out of an accident occurred on 10.3.1972 at 8 P.M. when stage carriage bus bearing registration number KLK 9651 fell into a ravine at Vellathooval. Several persons died on the spot and some others sustained serious injuries. Though accident occurred on 10.1.1973 no claim petition was preferred on behalf of the petitioners. The first petitioner was born on 20.5.1966. Claim petition was filed on 30.6.1986, 543 days after attaining majority. Second petitioner was born on 30.1.1968 and attained majority on 30.1.1986. The claim petition was however filed on 30.6.1986, within six months from the date of attaining majority.
4. Claimants in O.P. (M.V.) No. 222/88 are the daughters of one Thomas who died in the accident. Application was preferred on 31.1.1987. Claimants were minors on the date of the accident as well as on the date when the application was filed. Widow of the deceased was made third respondent in the petition. O.P. (M.V.) No. 223 of 1988 was filed by the widow and children of one Ulahannan who also died in the accident. O.P. (M.V.) No. 407 of 1998 was filed on 3.12.1987. First claimant was the widow and claimants 2 to 7 are the children of one Chacko. Petitioners 3 and 4 though attained majority did not make an application in time. Petitioners 5, 6 and 7 were minors at the time of submitting the application. In all the abovementioned applications, claim was made for an amount of Rs. 1,00,000/-. All the above applications were resisted by the owner as well as the insurer stating that the applications were hopelessly barred by limitation and consequently the same had to be dismissed. Applications were dismissed by the Tribunal stating as follows:
“As I stated earlier the provision of the Limitation Act is not made applicable to the proceeding under the Motor Vehicles Act. Minority may be pleaded as a valid ground, but the party is not entitled to get exclusion of the period. The guardian has not offered explanation why he did not file the petition for the fifteen years from the date of accident. Hence I find the petitioners have not offered any valid explanation for condoning the delay and I find O.P. is barred by limitation.”
With regard to no fault liability, the Tribunal held as follows:
“In this connection I may also state that no claim is made in any of the Original Petitions based either under Section 92(A) of Motor Vehicles Act, 1932 or under Section 140 of the Act 59 of 1988. The accident took place on 10.5.1972. Claim Tribunals were constituted in the State only in the year 1977 by notification dated 25.7.1977. Until then the remedy of a person aggrieved was to approach-civil court. As far as some of the petitioners are concerned the right to claim compensation was barred on the date of constitution of the Claims Tribunals. Section 92(A) itself was introduced in the statute book only in the year 1982. On that date no claim petitions were pending. Hence I do not think it is proper to grant any relief under the no fault liability also suo motu in these cases.”
Aggrieved by the orders of the Tribunal these appeals have been preferred with petitions for condonation of delay.
5. Sri. K K. Chandran Pillai appeared for the appellant in all these cases. Sri. P. Gopalakrishna Menon appeared for first respondent in M.F.A. No. 511 of 2000. Government Pleader Sri. Lal George appeared for State Insurance Department.
6. We may examine the question whether legal representatives of the deceased who were minors at the time of the accident can make application for compensation on attaining majority. In M.F.A. No. 850 of 2000 arising out of O.P. (M.V.) No. 126 of 1988 first appellant was born on 20.5.1966. Therefore he could have filed application, at any rate, on attaining majority or within six months from the date of accident. Otherwise he could have filed application prior to 30.11.1984, but the application was filed only on 30.6.1986. That means after the delay of 543 days.
7. Petitioners 1 and 2 in O.P. (M.V.) No. 223 of 1988 are the widow and son of deceased Ulahannan. They did not file application in time though they were majors on the date of accident. Petitioners 4 and 5 were minors even at the time of filing the application. Application was filed only on 31.1.1987.
8. Petitioners in O.P. (M.V.) No. 222 of 1988 are the daughters of the deceased and are represented by their grandfather. The claim petition was filed on 31.1.1987 with petition for condonation of delay. We are of the view in the case of minors, minors were disabled since nobody was there to take up their cause. When the accident occured, Motor Vehicles Act, 1939 was in force. The Section applicable at the time for filing the application was Section 110-A. Relevant portion of Section 110-A, namely Section 110-A(3), is extracted for easy reference.
(3) No application for compensation under this Section 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.
When the 1988 Act came into force a new Section was introduced, namely Section 166, relevant portion of the Section, Sub-section (3) of Section 166 is extracted hereunder for easy reference.
166. Application for compensation. (1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made.
…..
(3) No application for such compensation shall be entertained unless it is made within six moths 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.
In all these cases, applications were made while the 1939 Act was in force. Under Sub-section (3) of Section 110A no application for compensation shall be entertained unless it is made within six months of the occurrence of the accident. However, the Tribunal could entertain the application after the expiry of the said period if it was satisfied that the applicant had sufficient cause for not making the application in time. Therefore even if the application was not filed within six months, the Claims Tribunal had the power to condone the delay if sufficient cause is made out by the applicant for not filing the application in time. Claims Tribunal were constituted in the State only in the year 1977 by notification dated 25.7.1977. All these applications were made subsequent to the constitution of the Claims Tribunal in the State. We may indicate some of the petitioners were minors at the time of the accident and also at the time when the applications were filed.
9. We may examine the question as to whether the Claims Tribunal was justified in not entertaining the claim of the minors who have filed applications just before attaining majority or within six months from the date of attaining majority. Legality of accepting the application for compensation under the provisions of Section 166(3) and in the case of claim petitions preferred under the Motor Vehicles Act, 1939 came up for consideration before a Division Bench of this Court in Musthafali v. Subair (1991 (2) KLT 593). After analysing the decisions of various High Courts and that of the Apex Court, the Division Bench held as follows:
“It is true that technically an application or a petition under Section 110A of the Act cannot be described as a plaint, But it is a petition which for all material purposes is like a plaint and it pertains to a dispute ordinarily triable in a civil court and the trial is also conducted by a Judicial Officer of the rank of a District Judge, by a procedure prescribed by the Rules and the provisions of the Motor Vehicles Act, as we said earlier, also very much in conformity with the procedure prescribed by the trial of the suit. When we are faced with a situation where the petition has to be dismissed on account of delay and when that petition has been filed by a minor, we feel that we have to take a very generous view of the matter, so as to rescue the petition from being tumbled down on the rock of limitation and thereby depriving compensation to an innocent victim and that too a minor in a motor accident. For these reasons, we hold that Section 6 of the Limitation Act is applicable in this case and so there is no question of limitation.”
We find from the facts that the application in the above case was filed beyond the statutory period prescribed in the Act. Consequently the Tribunal rejected the application on the ground of limitation. We are in this case faced with a similar situation and the interests of the minors has to be safeguarded. The Division Bench after considering Section 6 of the Limitation Act, held as follows:
“Assuming that Section 6 of the Limitation Act is not applicable, even then, the Tribunal has got a discretionary power to condone the delay under the proviso to Section 110A(3) of the Act. The Tribunal can entertain an application, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. A minor till he attains majority, may not be in a position to file an application by himself before attaining majority. In such circumstances, the provision allowing power to the Tribunal to condone the delay in filing the application when such an application has been filed through the guardian of the minor, should be exercised, if there is no serious impediment in favour of the applicant.”
Section 6 of the Limitation Act enables minors or insane to make application for ventilating their rights after the disability has ceased. Section 6 in our view has to be construed liberally. Of course it would not stipulate any period of limitation prescribed in the statute. Question was posed as to whether Section 6 of the Limitation Act would apply when period is fixed by the said local laws or legislation like Motor Vehicles Act. We may indicate that Motor Vehicles Act, 1939 had its period of limitation as six months to make application from the date of occurrence of the accident. However, the Tribunal has been’given power to entertain application even after six months if sufficient cause is shown. Sub-section (3) of Section 166 of the new Act states that no application for compensation shall be entertained unless it is made within six months of the occurrence of the accident. The Tribunal is given power to entertain the application after the expiry of the 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. Later Sub-section (3) of Section 166 of the 1988 Act was omitted by the Motor Vehicles (Amendment) Act, 1994 (Act 54 of 1994) with effect from 14.11.1994. Consequently there is no time limit for filing claim petitions before the Tribunal in respect” of any accident. Therefore, as per the present law, though application was not filed during the minority the Tribunal can entertain application at any time even after attaining majority since the time limit for filing application for compensation was taken away. We are of the view the period when the accident occurred as well as the application was made, the Act which was in force was 1939 Act which fixed a time limit. Even then the new Section 6 would come to the rescue of the minors. Section 29(2) of the Limitation Act reads as follows:
Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such periods were the periods prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 and 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
Motor Vehicles Act as well as the provisions enacted for claiming compensation are special provisions. The 1939 Act has not specifically excluded from entertaining any application though six months period has been fixed for filing application before the Tribunal. We are therefore of the view in respect of the applications preferred in these cases the Tribunal has got the power to condone the delay though filed out of the period of six months from the date of occurrence of the accident. We are of the view minority now pleaded by the petitioners is a sufficient cause under the proviso to Sub-section (3) of Section 110-A of the 1939 Act to entertain the application. We therefore hold the order passed by the Tribunal rejecting the application of the minors cannot be sustained.
10. We have now to examine the question as to whether sufficient grounds have been made out to condone the delay in filing C.M.P. No. 4737 of 2000. An affidavit has been filed by the petitioners which is almost identical. We may refer to certain relevant portion of the affidavit which reads as follows:
“At Thodupuzha, our case was conducted by advocate P.M. Joseph. The other three cases were conducted through the office of Adv. C.M. Tomy. When appeals were intended to be filed against our case, Mr. P.M. Joseph our Advocate introduced us to Mr. C.M. Tomy for making necessary arrangements for filing the appeal before this Hon’ ble Court. It is Adv. Mr. C.M. Tomy who introduced us to ourpresent Adv. Mr. K.K. Chandran Pillai at Ernakulam in connection with the filing of the above appeal. Thus, the above appeal along with the other appeals arising out of the same common award were entrusted with our present counsel. Mr. Tomy contacted our counsel at Ernakulam in early 1999 in connection with the missing of an appeal filed before this Hon’ble Court filed on behalf of one Shamla A. Kareem. That case was entrusted for filing during the earlier months of 1991. It so happened that due to some act committed by our counsel’s clerk at Ernakulam that appeal was not filed and it came to the notice during the early period of 1999 that it was not filed. Information was gathered after thorough enquiry in the office of this Hon’ble Court. Thereafter our counsel requested the party in that case to apply and get fresh certified copies of the award in that case for filing a fresh appeal with a petition to condone the delay. That was filed after getting certified copies of necessary records from the MACT, Thodupuzha. It was filed during the month of March 1999. TheappealisnumberedasMFA603/99. In the delay petition, notice was ordered and after hearing, the delay is condoned also as per order in CMP No. 3267 of 1999 dated 18.11.1999. The appeal is admitted and is pending”.
We notice that information has been subsequently passed on to the advocate at Thodupuzha. Consequently petitioners enquired about their appeal and they were informed by counsel at Ernakulam that appeals have been preferred, but the files could not be traced out in the office. After making thorough enquiries petitioner’s advocate at Ernakulam found that no appeals were preferred. It is stated in the affidavit as follows:
“On coming to know about this our counsel made thorough enquiries, but he could not even locate his earlier clerk who by that time had abandoned the profession itself. During 1991 when our counsel had decided to become independent, his cases were filed by one clerk by name Aji. He is no more in the service of our counsel and all efforts made by him to trace out his whereabouts also become unsuccessful. Under such a situation, our counsel requested Mr. C.M. Tomy, Advocate at Thodupuzha to apply for fresh copy of the award in the above case.”
Counsel submitted before us in open court that the mistake happened in this office. He was under the bona fide belief that appeal was filed in time. But later it was noticed that it was an omission on the part of the clerk who was entrusted with the filing of the appeal. We are of the view since this is a mistake happened in the office of the counsel and the counsel owned the mistake applicants shall not suffer. In such circumstances we are inclined to condone the delay in filing the appeals. All the petitions for condoning the delay will stand allowed. We have already indicated there are sufficient reasons for condoning the delay. Consequently orders passed by the Tribunal are set aside so far as the minors are concerned. Claim petitions preferred by the minors would be entertained as if they were filed in time and appropriate orders be passed on merits. We make it clear since there is delay in filing appeals, claimants will not be entitled to any interest if ultimately claims are upheld for the delayed period. All the appeals are accordingly disposed of.