JUDGMENT
K.C. Agrawal, J.
1. On the 19th July, 1966, occurred an accident in which Bhagwan Dass, husband of Smt. Pari Bai, appellant No. 1 and father of appellants Nos. 2 to 4, died in a motor accident. A cause of action accrued to the appellants 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, 1963, within two years of the occurrence of the accident. But, in the meantime, the Government of U. P, constituted the Claims Tribunal by a notification published in the Gazette dated 7th March, 1967. Despite the fact that a Tribunal had been constituted at Dehra Dun. where the appellants could file an application for compensation under Section 110-A of the Motor Vehicles Act, they were advised to file a regular suit in the civil court on 1st April, 1968. The suit was contested by the respondents. One of the main grounds raised in the suit was whether the suit filed by the appellants in the civil court, after the constitution of the Tribunal under the Motor Vehicles Act, was competent. By the order dated 2nd June, 1970, the Civil Judge held that after the constitution of a Claims Tribunal all the applications for compensation of death arising out of the accidents, whether before or after the constitution of such Claims Tribunal, could be filed only before the Tribunal, and that the civil suit of the appellants was not maintainable. In this view of the matter, he dismissed the suit.
2. The appellants, thereafter, filed an application under Section 110-A of the Motor Vehicles Act (briefly stated as ‘the Act’), on the 1st July, 1970. This application was admittedly, bar
red by time. The appellants, therefore, filed an application on 7th July, 1970, for condonation of delay on the ground that as they had been bona fide pursuing the civil suit, which ended in dismissal on 2nd June, 1970, therefore, the appellants were entitled to the condonation of delay. The respondents contested the application filed by the appellants for condonation of delay contending that as the appellants were guilty of negligence, having filed the suit after the constitution of the Tribunal, they were not entitled to the condonation of delay. The respondents further contended that, in any view of the matter, since the appellants had not explained the delay for the period from 2nd June, 1970 to 1st July, 1970, therefore, the applications for condonation of delay and for compensation were liable to be rejected. The appellants, thereafter, filed a supplementary affidavit explaining the delay for the period from 2nd June, 1970 to 1st July, 1970. In this affidavit, the averment made was that after the dismissal of the suit, since there were divergent opinions of different High Courts, the appellants obtained the legal opinion as to whether an appeal be filed or an application be moved and only when they were advised to move an application, they did so on the 1st of July, 1970. The Claims Tribunal, however, did not accept the grounds taken by the appellants in the application for condonation of delay, and being of the opinion that the delay had not been satisfactorily explained, dismissed the application by the order dated 6-4-1972. The application for compensation was also rejected thereafter on 26th April. 1972. Aggrieved by these orders, the present appeal has been filed by the appellants in this Court.
3. The question which arises for decision in this appeal is whether the appellants had satisfactorily explained the delay in filing the application under Section 110-A of the Act. Section 110-A (1) provides for an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110. Sub-section (3) of Section 110-A lays down that no application for compensation under this sec
tion shall be entertained unless made within sixty days of the occurrence
of the accident. The Claims Tribunal has, however, been conferred the power to entertain an application for compensation even if filed after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from making the application within time. It may be noted that a period of six months was substituted in place of sixty days in Sub-section (3) of Section 110-A by Act No. 56 of 1969, with effect from 2nd March, 1970. In the instant case, as would be seen, the accident took place in 1966, at the time when the Claims Tribunal had not been created by the State Government. At that time, the only remedy available to the appellants was to file a suit for damages against the respondents. It was in March 1967 that the Claims Tribunal was created for deciding the cases in Dehra Dun. The position, however, was not very clear at that time whether an application in respect of an accident occurring before the creation or constitution of Claims Tribunal was maintainable in the Claims Tribunal or that a suit could alone lie. In this view of the matter, if the appellants were advised to file the suit on 1-4-1968 instead of making an application under Section 110-A of the Act, it could not be ‘ said that they did not act bona fide. There are a number of reported cases, to which reference need not be made here, taking the view that an application for compensation under Section 110-A of the Act was not maintainable in respect of accidents which took place before the creation of the Claims Tribunal. It was only after 1972 when the case of Smt. Shanti Misra v. New India Insurance Co. Ltd. (1972 All LJ 491), was decided that the position about the maintainability of an application for compensation in the Tribunal was crystallised. In this view of the matter, the Claims Tribunal was fully justified in holding that the appellants were entitled to get condonation of delay up to 2nd of June, 1970.
4. So far as the period from 2-6-1970 to 1-7-1970 is concerned, the
argument advanced by the learned counsel for the respondents was that the appellants should not have waited for such a long period and should have immediately filed the application under Section 110-A of the Act on 3rd June, 1970, or a day therafter. Counsel contended that as the appellants did not do so, the view of the court below that the appellants failed to account for every day’s delay satisfactorily must be accepted. We are unable to accept this argument of the learned counsel for the respondents. It is true that a person coming to the court after the prescribed period is required to explain the delay and he can succeed in getting the delay condoned only when he satisfactorily explains it. But, a court of law cannot require such a person to explain the delay with mathematical precision. As already stated above, the controversy about the maintainability of the application under Section 110-A of the Act was a vexed one, there being a difference of opinion amongst various High Courts about the same. In this view of the matter, it was legitimate for any counsel to take sometime in giving a final opinion to his client for preferring an application under Section 110-A of the Act instead of filing an appeal against the judgment of the Civil Judge dated 2-6-1970 dismissing the suit on the ground of non-maintainability. The court below, in our opinion, was in error in finding that the delay from the period 2-6-1970 to 1-7-1970 had not been satisfactorily explained. We, accordingly, hold that the appellants having explained the delay, the application filed by them for condonation of delay ought to have been allowed, and the application under Section 110-A of the Act should have been treated as having been filed within time.
5. In the result, we allow the appeal, set aside the judgment and order of the court below dated 6-4-1972 and allow the application under Section 5 of the Limitation Act. The court below shall now proceed with the case in accordance with law. There shall be no order as to costs.
