Untwalia , J. - (1.) 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 l10A 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 l10 could be entertained by the Tribunal or the remedy of the aggrieved person was to institute a civil suit.
(2.) On the ll th Sept, 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 motor-cycle 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, 1963 Within two years of the occurrence of the accident. But in the meantime the Government of Uttar Pradesh constituted the Claims Tribunal under Section l10 of the Act, by a notification published in the Gazette of the 18th March, 1967. The respondents filed an application under Section l10A on the 8th July 1967. The appellants objected to the jurisdiction of the Tribunal to entertain the application. The Tribunal overruled 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 jurisdiction to entertain this application. Hence this appeal.
(3.) The Act was amended by Central Act 100 of 1956 with effect from the 16th February, 1956. The original Section l10 was deleted and new Sections l10 to l10 F were introduced. The Claims Tribunals, however, were not constituted by the State Governments at one and the same time. They were constituted with different dates for different areas. Until and unless the Claims Tribunals were constituted 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 l10F 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 Claims 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-" But difficulties arose in giving full effect to the bar of jurisdiction of the Civil Court because of the language of Section l10A providing for the filing of an application for compensation. There could not be any debate or dispute that if an accident occurred after the constitution of the Claims Tribunal, the only remedy of the claimant was to file an application under Section l10A. 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 cases 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 l10A. 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 extinguished. The remedy of either an application under Section 110A or a civil suit must be available surely, not both Majority of the High Court 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 of Civil Court was barred. Vide Unique Motor and General Insurance Co. Ltd., Bombay v. Kartar Singh AIR 1965 Punj 102; M/s. V. C. K, Bus Service (P) Ltd. Coimbatore v. H. B. Sethna AIR 1965 Mad 149; Palani Ammal v. Safe Service, Ltd., Salem, ILR (1965) 2 Mad145; Natverlal Bhikhalal v. Thakarda Khodaji, ILR (1967) Guj 495; Yadav Motor Transport Co. v. Jagdish Prasad, AlR 1969 Raj 316 and Thomas v. M/s. Hotz Hotels Ltd., AIR 1969 Delhi 3. A contrary view was taken by the Madhya Pradesh High Court in Khetumal Ghanshamdas v. Abddul Qadir Jamaluddin AIR 1961 Madh Pra 295; Sushma Mehta v. Central Provinces Transport Services Ltd., AIR 1964 Madh Pra 133. 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 Society Ltd. v. Rameshwar Raut, AIR 1970 Pat 172 (Paras 7 and 8). The question falls for determination in this Court for the first time and we have to decide which of the two views is correct.;