Raj Kishore Prasad, J.
1. This is an appeal under Section 110-D(1) of the Motor Vehicles Act, 1939, (Act IV of 1939), (hereinafter referred to as "the Act"), by the opposite party No. 2, the owner of the bus in question, against an award of the Claims Tribunal, Muzaffarpur allowing a sum of Rs. 3,000/- to the applicant Mt. Tarabati Kuer, respondent No. 1, widow of the deceased Girish Chandra Prasad a Civil Court copyist, against opposite party No. 1, the driver, who is now dead and the appeal has abated against him and his heirs; opposite party No. 2, the appellant, the owner of the bus, and opposite party No. 3. The Oriental Fire and General Insurance Company Ltd., which was the Insurer, now respondent No. 4, making them liable both jointly or separately.
2. The facts, put shortly, are these:--
On 2-8-1961, the deceased Girish Chandra Prasad was crushed under the wheels of the bus driven by opposite party No. 1, respondent No. 3, Ibrahim Mistry, against whom also the appeal has abated, belonging to opposite party No. 2. Ramashray Singh, the owner of the bus, the appellant, Girish Chandra Prasad died subsequently on 3-8-1961 in the hospital. On 3-10-1961 the widow of the deceased, who is Respondent No. 1 and was applicant before the court below, Mosmtt Tarabati Kuer, made an application under Section 110(1)(b) of the Act before the Claims Tribunal under the Act at Muzaffarpur who was the District Judge of the place. On 23-11-1962 on the petition of the applicant, Respondent No. 1, to add the Insurer who is respondent No. 4 before this Court, was made before the Claims Tribunal and that application was allowed on 16-1-1963 and the Insurer company, was added as opposite Party No. 3 on 16-1-1963. It is admitted that respondent No. 4, the Insurance Company, did appeal before the Claims Tribunal and file its written statement, but did not contest the application at the time of the hearing of the application with the result that the claim of the applicant, respondent No. 1, was unresisted by the Insurance Company, opposite party No. 3, respondent No. 4. The Claims Tribunal on 20-7-1965 decided the application of the appellant respondent No. 1, in her favour and allowed it, as mentioned before, for Rs. 3,000 against all the three opposite parties making them all liable jointly or separately. Against this award the only person who has come up in appeal is opposite party No. 2, the owner of the bus, and there is no appeal either on behalf of the driver opposite party No. 1 or on behalf of the Insurance Company, opposite party No. 3; but all these persons were made respondents to the appeal here.
3. Mr. Surya Bhusan Prasad Singh, a junior Advocate of this court has argued the appeal admirably well and with great clarity and his argument presented was precise and to the point which shows that he was thoroughly prepared with his case.
4. Two points were placed before me by Mr. Singh, in support of the appeal: (i) that the application of the applicant-respondent No. 1 was barred by limitation under Section 110-A(3) of the Act, because the claims petition was filed on 3-10-1961 although the accident had taken place on 2-1-1961 which would be beyond 60 days which is the period of limitation prescribed by Section 110A(3) of the Act; and, (ii) that there was no finding that the death of the deceased was caused by the negligence of the motor-driver, Respondent No. 3.
5. As regards the first point, it would be useful to read Section 110A(1)(b) and (3) of the Act.
"110-A(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) x x x x
(b) where death has resulted from the accident, by the legal representatives of the deceased; or
(c) x x x x (2) x x x x
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."
6. It is plain from Section 110(3) of the Act, quoted above, that, no doubt, the application under Sub-section (1) of Section 110-A is to be made within 60 days of the occurrence of the accident, but the Claims Tribunal has got the power to entertain such an application even 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."
It was argued by Mr. Singh that when the application was filed on 3-10-1961 there is nothing in order No. 1 dated 3-10-1961 from which it would appear that the Claims Tribunal exercised its discretion vested in it by the Proviso to Sub-section (3) of Section 110-A of the Act and that it expressly condoned the delay. I have looked into the above order and find that this contention is correct: but it would appear from the order under appeal, paragraph 6, that the learned Claims Tribunal considered the question of limitation and observed that :--
"By admitting the application however this Tribunal has condoned the delay. This Tribunal has power to condone any delay in the filing of the petition and I think it is a fit case in which the delay should be condoned. Whatever delay there had been in the filing of the petition for compensation is, therefore, condoned."
From the above it is obvious that the learned Tribunal by admitting the application filed on 3-10-1961 impliedly condoned the delay and admitted it in exercise of its power vested in it by the Proviso to Sub-section (3) of Section 110-A of the Act, and, therefore, the mere fact that it did not in so many words say so or give reasons for entertaining the application after expiry of the limitation would not mean that it did not condone the delay. At the time of filing of the application there was no one to raise the question of limitation, but when the question of limitation was raised before the learned Tribunal it decided it specifically in paragraph 6 of its judgment. In these circumstances, I hold that sufficient cause had been made out to the satisfaction of the Claims Tribunal for not making the application in time. Moreover, the application was barred by limitation by one day only, which, in my opinion, the learned Tribunal was justified in excusing this one day's delay and admitting the application.
7. In connection with the first point, it was further urged by Mr. Singh that no application for condonation of the limitation was filed by the applicant (respondent No. 1), and, therefore, the learned Tribunal is wrong in thinking that the fact that the application was admitted would impliedly mean that the limitation was condoned. I think, there is no substance in this contention. The proviso to Sub-section (3) of Section 110A does not speak of any application for condonation of the limitation being filed by the applicant. In the absence of specific provision for such an application being made before the Claims Tribunal it can exercise its power to condone the delay. I do not think, it was mandatory for the applicant to make an application for condonation of the delay. The Tribunal had discretion, if it was satisfied that the applicant was prevented by sufficient cause from making the application'' and, in the instant case, it was so satisfied, and, therefore, admitted the application by condoning the limitation of one day only. Under Proviso to Sub-section (3) of Section 110-A of the Act, in my opinion there is no obligation on the applicant to make an application asking for condonation of the delay. The making of an application for condonation of the limitation in filing the application under Section 110A(1) is not condition precedent to the exercise of the power of condonation by the Claims Tribunal under the Proviso to Section 110A(3). The Tribunal can suo motu, of its own accord after being satisfied condone the delay. The Tribunal has done this and it is perfectly legal and in accordance with the Proviso in Sub-section (3) of Section 110A of the Act.
8. Regarding the second point, the question of negligence of the driver was considered by the learned Tribunal in paragraph 4 of its decision and it held that "It is also clear that the occurrence took place due to negligence of the driver'' The second con- tention also has, therefore, no force and must be rejected.
9. I will now consider the objections of the Insurance Company, Respondent No. 4, which is represented by Mr. B. K. Bose. He put forward three objections to the order under appeal, although there is no appeal by the Insurance Company itself against the award. The three points urged by Mr. Bose are:-- (i) that under Section HOB of the Act, if the owner of the Bus that is, the appellant, is not liable, then the Insurance that is. Respondent No. 4, is also not liable (ii) that the application of the widow respondent No. 1 is barred by limitation against the Insurer, Respondent No. 4, because the application by the applicant for adding the Insurer -- respondent No. 4 as a party to her application was made on 23-11-1962, long after sixty days, and on that petition respondent No. 4 was added as opposite party No. 3 on 16-1-1963; and, (iii) that there was no evidence of negligence of the driver.
10. Mr. Bose relying on Section 95(1) (b) of the Act contended that the Insurance Company, Respondent No. 4, is liable to indemnify the owner of the bus which was insured with the Insurance Company to the extent specified in the policy against any liability which may be incurred by him in respect of the death of any person caused by or arising out of the use of a vehicle in a public place, and, under Section 110-B of the Act, the Claims Tribunal has to specify the amount which shall be paid by the Insurer; but, in the instant case, no such amount has been specified, and therefore, it is obvious that the Insurance Company is not liable. There is no denial of the fact that if it is held that the appellant, the owner of the bus, is not liable, then, of course, the Insurance Company, will also not be liable to pay any amount of compensation to the widow of the deceased, Respondent No. 1. This position has not been disputed at all; but, in the instant case, I have held that the appellant, the owner of the bus, is liable, and, therefore, the liability of the Insurance Company is also there. The mere fact that the Claims Tribunal has made the appellant and the Respondent No. 4 jointly and separately liable to pay the compensation to the widow, respondent No. 1, is no ground for thinking that the Insurance Company is not at all liable; on the other hand, because there is no separate order specifying that Insurance Company would be liable for what amount clearly goes to indicate, when the court below has made the owner, the driver and the Insurance Company, all the three jointly or separately liable, that the Insurance Company is liable to pay RS. 3,000 to the widow of the deceased. It is not disputed by Mr. Bose that the bus was not insured for Rs. 3.000 at all. The stand taken by the Insurance Company was that the bus was not it all insured with the company and this is the point which was taken in its written statement, but unfortunately the Insurance Company did not contest the application and, therefore, that plea was negatived. I, therefore, hold that the Insurance Company, respondent No. 4, is liable to pay the amount of award to the widow of the deceased along with the appellant, the owner of the bus, the liability inter se being both joint and separate.
11. As regards the second point about the application of the widow respondent No. 1 being barred by limitation against the Insurance Company, Respondent No. 4, because the application for adding the Insurance Company a party to the application of the widow was made after the expiry of 60 days on 23-11-1962, I find that the Insurance Company filed its written statement on 12-10-1963 but this specific point of limitation was not pleaded in the written statement at all. Moreover, after filing the written statement, although the application was heard and disposed of on 20-7-1965, and the application was pending before the Claims Tribunal for about three years, the Insurance Company did not appear to contest the application of the widow, Respondent No.
1. Here in this Court, as I said before, no appeal has been preferred by the Insurance Company. Respondent No. 4, against the award which was definitely against the Insurance Company also. It is only in argument that Mr. Bose put forward the question of limitation, but I am afraid this objection cannot be allowed to be raised at this appellate stage, when there was no whisper about it in the court below or in the pleading of the party and the respondent No. 1 had no opportunity to meet it.
12. Section 22(1) of the Old Limitation Act (Act IX of 1908), which governs the present case, as the new Limitation Act 1963, (Act 36 of 1963) came into force on 1-1-1964, provides that "where, after the institution of a suit a new plaintiff or defendant is substituted or added the suit shall, as regards him, be deemed to have been instituted when he was so made a party." In view of Section 22(1) of the Limitation Act, there is no doubt that the application of the widow as against the Insurance Company Respondent No. 4 shall be deemed to have been instituted when he was so made a party and considered in this light the application of the widow applicant would be barred by limitation. Mr. Bose contended that the widow did not make any application as contemplated by Section 5 of the Indian Limitation Act, 1908 for condonation of the delay so that the Claims Tribunal could admit the application as against the Insurance Company after the expiry of the period of limitation. But as I said before, this point of limitation was resisted by the Insurance Company and, in these circumstances, the question of the widow respondent No. 1 filing an application under Section 5 of the Limitation Act could not arise. For these reasons, in my opinion, the plea of limitation raised in this Court for the first time must be overruled.
13. As regards the last point that there was no evidence of negligence of the driver, this question of negligence of the driver was raised by the appellant also and in paragraph 8 of this judgment I have held that on the finding of the court below it was clear that the occurrence took place due to the negligence of the driver. But, that apart, as the deceased was crushed under the wheels of the bus and then removed to hospital where he died the very next day clearly shows that the negligence could be inferred from the accident itself as to this case the principle of res ipsa loquitur (the thing speaks for itself") would apply. The widow respondent No. 1 was examined in support of her application and she stated that her husband was crushed under the wheels of the bus because of the negligence of Ibrahim, the driver of the bus. The court below has also observed that it is true that she was not present at the time of the occurrence but she stated in clear terms that her husband (deceased) told her about the occurrence in the hospital. This evidence was accepted by the court below and, in my opinion, rightly. Therefore, it is not correct to say that there was no evidence of negligence of the driver due to which the deceased lost his life. The objection, therefore, fails.
14. In the result, the appeal fails and is dismissed; but as there is no contest by the applicant, Respondent No. 1, there will be no order for costs of this Court.