J.K. Ranka, J. - (1.) HEARD the appeal finally with the consent of
(2.) THE instant civil misc. appeal under Section 173 of the Motor Vehicles Act is directed against order of the mact, Jaipur City, Jaipur dated 15.6.2001 passed in claim petition No. 1335/1999. The brief facts as has been gathered on the basis of arguments advanced by the learned counsel for the parties as also the impugned order is that on 27.6.1982 at about 11.30 A.M. when deceased Kumari Santosh was walking outside her house on Kuchcha road then at that time a Tractor bearing No. U.P.P.7173 along with trolley, which was being driven by the driver in a rash and negligent manner came and hit the deceased as a result of which she died. On report received of the incident, a case No. 127/1982 was registered at Police Station, Gandhi Nagar and after investigation, a challan was filed against the non -petitioner No. 1 (Tractor driver) in the competent court for offence under sections 279, 304A IPC. The claimants alleged in the claim petition that non -petitioner No. 1 is the driver of the said tractor and non -petitioners Nos. 2 & 3 are the owners and vehicle was insured with non -petitioner No. 4 Insurance Company, therefore, all the four non -petitioners are responsible for payment of compensation jointly or severally. On 27.11.1999 no one appeared on behalf of non -petitioners Nos. 1, 2 & 3 Teja Ram, Shyam Singh and Smt. Saroj, therefore, ex parte proceedings were drawn against them
(3.) NON -petitioner No. 4 Insurance Company filed their reply to the claim petition stating therein that the so called accident was of 27.6.1982. It was pleaded that on the day of accident, as per section 110 -A(3) of the Motor Vehicles Act, 1939, limitation for filing a claim arising out of an accident was 6 months of the accident, which provision remained in force till 30th June, 1989 and the claimants did not file their claim within aforesaid limitation or filed after abnormal delay. It was further pleaded that the legislation had not repelled Section 116(3) of the Motor Vehicle Act, 1988 but this amendment can be implemented from 14.11.1994 thereafter in respect of the accident otherwise not. It was also pleaded that looking to the averments made and circumstances, there was no reason for the claimants to file their present claim after 17 years of the incident happened on 27.6.1982, which cannot be held maintainable for any good reason and, therefore, the claim petition is not maintainable and is liable to be dismissed. It was also contended that as per Section 209(4A) of the Companies Act, 1956 the accounts are maintained for 8 years and after a period of 8 years, it is not necessary of the companies to maintain the record of the accounts and as per rule 147 of the Central Motor Vehicles Rules, 1989 the Insurance Companies are bound to keep the insurance record only upto 5 years and it is not possible for the Insurance Company to trace the record in respect of the accidents, therefore, the claim petition is liable to be dismissed. The non -petitioner No. 4 Insurance Company also alleged that there was breach of conditions of insurance policy and prayed for dismissal of the claim petition. In alternate, it submitted that if there is any liability for payment of compensation then it may be decided on the basis of contributory negligency.;