R.J. Bahadur, J.

1. This appeal is directed against the award and judgment of the Motor Accident Claims Tribunal (District and Sessions Judge), Hazaribagh, passed in Miscellaneous Case No. 361 of 1964 by which a sum of Rs. 20,000 has been assessed and allowed as the amount of compensation payable to the claimant by the New India Assurance Company Ltd. This company is the appellant before us with whom respondent No. 2, the Bihar Industries Private Ltd., Ramgarh Cantt., Hazaribagh, had insured his motor vehicle, namely, a motor truck, which bore registration No. WGE 1719, against third party risks.

2. The case of the claimant, Sumitra Devi, a girl aged about six years, resident of Ramgarh in the district of Hazaribagh, which appears from her application to the Tribunal dated August 27/28, 1964, and the evidence of her father who has been examined as A.W. 2 is that while she was coming from her school in the afternoon of March 12, 1963, she was knocked down by a motor truck (WGE 1719) in front of the State Bank in the town of Ramgarh. As a result of the grievous injury she had suffered on her right leg, it had to be amputated from near her thigh above the knee region and that large sums of money had been spent on her treatment and a claim of Rs. 50,000 was made.

3. The two opposite parties in the suit (the appellant and respondent No. 2 here) filed their written statements separately, though respondent No. 2, the owner of the truck, did not contest the suit. The appellant alone contested and took various pleas, such as, the application was not maintainable, was barred by limitation, and, in any case, the liability of the company was limited to Rs. 20,000 in all.

4. On a consideration of the facts and circumstances of the case, the Tribunal came to the conclusion that it was a proper case in which the delay in filing the application for the claim ought to be condoned and that it was a proper forum in which the application could have been made. It held that the claimant was involved in the accident, on the day, place, time and by the truck, as alleged by her. It further held that the truck belonged to V respondent No. 2, and, therefore, held that the claimant was permanently made a deformed person and she was thus entitled to receive a compensation of Rs. 20,000, as already stated.

5. Learned counsel appearing on behalf of the appellant has, in the first place, urged that the Claims Tribunal had no jurisdiction to entertain this application as the accident in question had taken place sixty days before the constitution of the Tribunal, which is said to have come into existence on July 19, 1963. It appears from the record that before the constitution of this Tribunal, there was a Motor Vehicles Tribunal for the entire region of Chotanagpur division and on the constitution of the present tribunal, namely, on July 17, 1963, different Claims Tribunals were constituted for each district and the present one was for the district of appellant (sic) is that the accident having taken place on March 12, 1963, and the application before this tribunal having been filed on August 28, 1964, was clearly not maintainable because the present tribunal came into existence much after the date of the accident. It is said that the proper tribunal at the relevant time was the tribunal for the whole of Chotanagpur division and according to the provisions of Section 110F if there were no other tribunals then the proper forum for making a claim was the civil court. Learned counsel has frankly conceded that the question of going to the civil court does not arise on the facts of this case. His contention is that in the application for condonation of delay itself, it has been stated that earlier an application had been made before the Deputy Commissioner of Hazaribagh and later, after it was realised that that was not the proper forum, it was filed much later before the present Tribunal. Identical contention was raised before the tribunal and the matter has been considered by it in great detail and reliance was placed, as has been placed in this court before us, on a decision of the Punjab High Court in Mulak Raj Bhola Shah v. Northern India Goods Transport Corporation Ltd. . In the said case a single judge of that court had held that where no Claims Tribunal for dealing with an application for compensation, arising out of an accident, under Section 110A of the Motor Vehicles Act had been constituted by the time the period of sixty days expired from the date of the accident, the benefit of the proviso to Section 110A(3) could not be claimed and the claim could not be adjudicated upon by the the Tribunal under Section 110A(3). In that case the construction of Section 110F also arose but as it does not arise in the instant case nothing more need be said about Section 110F.

6. Relevant portion of Section 110A is in the following terms :

"110A. (1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made-

(a) by the person who has sustained the injury ; or

(b) where death has resulted from the accident, by the legal representatives of the deceased ; or

(c) by any agent duly authorised by the person injured or the legal representatives of the deceased, as the case may be.

(2) Every application under Sub-section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed.

(3) No application for compensation under this section shall be entertained unless it is made within sixty days of the occurrence of the accident:

Provided that the Claims Tribunal may entertain the application after the expiry of the said period of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time."

7. The argument raised on behalf of the appellant by learned counsel is wholly misconceived and the aforesaid case, namely, Mulak Raj Bhola Shah v. Northern India, Goods Transport Corporation Ltd. . has been overruled by a Bench decision of that court in the case of Unique Motor and General Insurance Company Ltd. v. Kartar Singh [1964] 34 Comp. Cas. 966 ; . , wherein it has been held that the rule laid down in the said case had been incorrectly decided. Quite apart from the aspect placed before us, the matter is simple. The forum is a matter of procedure and the accident having taken place on March 12, 1963, and undoubtedly if the application had been made within sixty days, it ought to have been made before the Tribunal which was for the entire Chotanagpur division. That, however, is not the test. What has to be seen is that, when the application in the present case was made, i.e., on August 28, 1964, what was the forum for deciding the claims arising under the Act. Undoubtedly, in the meanwhile, the present tribunal had come into existence on July 19, 1963. It is, therefore, manifest that on August 28, 1964, when the claim application was made, there was in fact a tribunal in existence which had jurisdiction over claims arising under the Act.

8. There is, of course, still a further matter to be considered and that is whether the delay in filing the application had been explained satisfactorily or not.

9. The application was of course filed beyond sixty days of the date of the accident. Let me, therefore, consider this aspect as has been contended before us. Learned counsel submits that the reasons given by the tribunal for the condonation of delay are not sound and, on the facts and in the circumstances of the case, condonation ought not to have been made. It appears that, along with the application on August 28, 1964, another application was filed on the same day to condone the delay in filing the application before the Tribunal. Inadvertently, as has been mentioned by the Tribunal, the said application was never put up before the Tribunal nor its attention was drawn by either party until a later stage. On August 6, 1966, another application was filed before the tribunal in which the delay in making the claim has been explained, which is that the guardian of the claimant was busy in looking after her treatment to save her life which ultimately resulted in the amputation of her right leg. Further, after the guardian had become a little free, an application had been made in the wrong forum, namely, the Deputy Commissioner, Hazaribagh, and later on it was learnt that he had no jurisdiction to consider the claim. After that, a legal advice was obtained at Ranchi and much time took over these matters and then the application was filed before the Tribunal. The reasons have been considered by the Tribunal and it was satisfied that this was a fit case in which the delay in filing the application should be condoned. Learned counsels submission is that the delay of every single day has not been explained and he relies for his contention on a decision of the Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd., : A.I.R. 1962 S.C. 361, 363-64. In this case the main question that came for consideration was the construction of Section 5 of the Limitation Act and the principles which govern in consideration of matters for the condonation of delay in filing an application. It was observed that the failure to account by the appellant for his non-diligence during the whole of the period of limitation prescribed for the appeal did not disqualify him from praying for condonation of delay under Section 5. It was further observed that where the appellant did not file the appeal till the last day of limitation and he fell ill on the last day of limitation, and filed the appeal thereafter asking for the delay to be excused, it was held that his want of diligence till the last day of limitation did not disqualify him from applying for excusing the delay. Then their Lordships further observed that in construing Section 5, it was relevant to bear in mind two important considerations. It would be useful to reproduce the observation as appearing in paragraph 7 of the report which is as follows:

" In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired, the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which ha accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that, if sufficient cause for excusing delay is shown, discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan I.L.R. 1889 Mad. 269

Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood ; the words " sufficient cause " receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. "

10. It would thus be seen that this decision is of no assistance to the appellant in the present case because one of the considerations required is whether sufficient cause for excusing the delay had been shown, which is a matter of discretion of the court. In the present case I am satisfied that the Tribunal has given good reasons and it cannot be said that it has taken unreasonable view in excusing the delay in the present case. Having heard learned counsel for the appellant and learned counsel appearing for the respondent (respondent-claimant), and on consideration of all the facts and circumstances I am satisfied that the claimant had sufficient cause and that has been properly explained, and that it was a fit case in which the delay ought to have been condoned.

11. The next question that has been urged before us is that the claimant had failed to establish a case of negligence on the part of the driver of the vehicle and, as such, the compensation allowed by the Tribunal ought not to be sustained and even if all the submissions made on behalf of the appellant failed, then the quantum ought to be reduced. It would be useful to state that certain facts are practically admitted and have not been questioned before us in this appeal. We have perused the entire evidence for ourselves and I am satisfied that it has been proved by evidence of reliable character that on the afternoon of March 12, 1963 at about 12-45 p.m. Sumitra Devi, a girl aged between 5 and 6 years, was involved in the accident and the truck bearing No. WGE 1719 had knocked her, as a result of which she had been injured-and her leg had to be amputated. Further it has been proved that the truck belonged to respondent No. 2, namely, Bihar Industries Private Ltd., Ramgarh. It is also not in dispute that the said truck was insured with the appellant-company. On these findings learned counsel for the appellant has urged that if there were negligence on the part of the claimant herself she was not entitled to any damage, much less the amount that has been awarded to her. It is further urged that no case has been made out by the claimant that there was negligence on the part of the driver of the truck. In my opinion, these contentions are clearly unsound and must be rejected.

12. Section 95 of the Act provides requirements of insurance policy and the limitation of liability of an insurer. The insurance policy is on the record and has been marked exhibit A. We have not been shown either from Section 95 of the Act or any other provision, or from the insurance policy (exhibit A) whether the contention now raised has any justification. The liability is absolute but is only limited to the extent provided by the insurance policy in a particular case. In the present case, the insurance policy was in respect of a sum of Rs. 10,000 and the limit of liability in respect of any one accident was to the extent of Rs. 20,000. The contention is that in order to succeed, the claimant must show that there was negligence on the part of the driver of the vehicle and as there was no evidence either way, the initial onus was on the claimant and as that has not been discharged in this case, the entire claim should be disallowed. In support of the contention learned counsel has placed reliance on a decision in the case of Seethamma v. Benedict DSa A.I.R. 1967 Mys. 11 Learned counsel says that this case is an authority for the proposition that the burden of establishing the claim for damage was on the proof of negligence and as no negligence has either been alleged or proved in the present case, the claim ought to fail. In my opinion, this case has no application to the facts of the present case at all and the argument based on this decision is wholly misconceived. All that this case decides is that in a proceeding for compensation on the ground of negligence of a motor driver, the burden of establishing actionable negligence on the part of the driver who drove the motor vehicle was entirely upon the claimant. That is, it was for the claimant to prove negligence. In the instant case, as I have stated, no case of negligence was made out in the application nor was any evidence adduced on behalf of the claimant, though the father of the claimant, Mulchand Agarwala (A.W. 2), was asked in cross examination about negligence and he said that " the accident must have taken place because of the negligence and rashness of the driver. This is my impression ". It is thus clear that there is no evidence of negligence in the case nor was the claim founded on the basis of the negligence of the driver who drove the vehicle in question. As such, the point decided in the Mysore case is of no assistance to the appellant in the present case.

13. The Tribunal has very carefully considered the matter and given good reasons for awarding a sum of Rs. 20,000. It admits of no doubt that the girl between 5 and 6 years of age has been injured so severely that considerable sum of money, though not Rs. 50,000 as was claimed by the claimants father, had to be spent over the treatment. Besides, her life has been practically ruined because of the amputation of her leg and the Tribunal has taken pains to estimate that her marriage expenses may be considerable and might be at least Rs. 10,000. Further, she has to be educated, brought up and suitably maintained and the cost of her education and conveyance would be considerable. Considering all these matters, particularly in the light of the fact that all her life, she will be a disabled person, the amount of Rs. 20,000 can by no means be said to be an unjust amount which should have been awarded to the claimant in this case.

14. For the foregoing reasons, the appeal is without merit and is accordingly dismissed with costs.

Kanhaiyaji, J.

15. I agree.