Andhra HC (Pre-Telangana)
Dorakonda Venkatrama Seshachalapathi vs Vijayawada Co-Operative Central Bank on 23 November, 1989
Equivalent citations: I(1991)ACC324
JUDGMENT Neeladri Rao, J.
1. The victim in a motor accident is the appellant herein. He was working as a bank inspector of the Vijayawada Co-operative Central Bank (hereinafter referred to as 'the bank'). On 17.3.1979 he went in the jeep AAK 1915 belonging to the bank from Vijayawada to Oam-palagudem for collection of the amounts from the customers. While jeep was going from Peddavaram via Ycrramadu, the earth caved in, the wheel of the jeep tumbled and it fell down from the canal bund. The appellant who was travelling in the said jeep sustained injuries on his left ring finger and little finger. He underwent treatment. PW 4, the doctor, who treated him stated that left ring finger was permanently disabled and little finger suffered partial disability. He claimed Rs. 20, 000/- as compensation by alleging that the driver of the jeep drove it rashly and negligently. The trial Court dismissed the petition holding that neither negligence nor rashness on the part of the driver was established.-The learned single Judge affirmed it.
2. Section92-A of the Motor Vehicles Act, 1939 provided no fault liability. It was incorporated by Act 47 of 1982 which came into effect on 1.10.1982. Section 92-A was given effect from 1.10.1982. By judgment in T. Srinivasulu Reddy v. C. Govardhana Naidu 1990 A.C J. 66 (AP)-1(1990) ACC. 357 (Judgment for the Bench delivered by Amareswari, J.) it was held that it applies even to cases where accidents have taken place prior to 1.10.1982, the date on which Section 92-A had come into force. It was stated for the appellant that in view of the above judgment the compensation has to be allowed to the petitioner under Section 92-A, Motor Vehicles Act, 1939.
3. Mr. Suryanarayana Murthy, the learned Counsel for the R-2 insurance company, submitted that some aspects were not raised before this Bench earlier and the said judgment requires reconsideration. So we heard him at length even at the stage of admission.
4. Section 92-A, Motor Vehicles Act, 1939 reads:
(1) Where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this Section.
(2) The amount of compensation which shall be payable under Sub-section (1) in respect of the death of any person shall be a fixed sum of fifteen thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of seven thousand five hundred rupees.
(3) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under Sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement It is not specific that it refers only to accidents occurred after 1.10.1982. The decisions in Ram Sarup v. Munshi A.I.R. l963 SC 551 and Rafiquennessa v. Lal Bahadur Chetri A.I.R. 1964 SC 1511, were referred to in our judgment in T. Srinivasulu Reddy v. C. Govardhana Naidu, . Section 31 of the Punjab Pre-emption Act as amended by Punjab Act 10 of 1960 considered in the former and Section 5 (1), Assam Act, 19SS dealt with in the latter, are specific in regard to the retrospective effect Section 92-A, Motor Vehicles Act, 1939 does not contain any words to indicate whether it is retrospective. In such a case, the scheme and the object for which the provision was made have to be considered in order to determine whether such a provision is prospective or retrospective.
5. Section 110 A, Sub-clause (2) proviso of Motor Vehicles Act, 1939 suggests that Section 92-A is prospective, contended R-2. It reads:
110-A. (1) xxx xxx xxx (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:
Provided that where any claim for compensation under Section 92-A is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
6. It enjoins that if a claim for compensation under Section 92-A is made, the application shall contain separate statement to that effect. Section 110-A (3) provides six months as period of limitation for filing the application. Such a claim can be made only after Act 47 of 1982 had come into effect; unless such a claim is made, compensation towards no fault liability under Section 92-A cannot be granted and so they suggest that Section 92-A is only prospective urged for R-2. It is a contention to which we find it difficult to accede for more than one reason. Though Chapter VII-A containing Section 92-A was inserted by Act 47 of 1982 with effect from 10.8.1982 (Sic. passed by the Parliament on this date), Section 92-A was given effect to from 1.10.1982. Even in regard to an accident which occurred after 1.10.1982 if application was Tiled before 10.8.1982 (Sic.) naturally there would not have been any claim under Section 92-A. Still the claimant would be entitled to the same for Section 92-A was made operative from 1.10.1982. Our Bench has held as per T. Srinivasulu Reddy' s case 1990 A.C.J. 66 (AP), that Section 92-A was applicable even in regard to accidents which occurred prior to 1.10.1982 though it was given effect to from 1.10.1982 for various reasons referred to therein. Suffice it to observe at this stage that the contention for R-2 that Section 110-A, sub-clause (2) proviso suggests that it is prospective is not tenable for such a relief has to be granted even in an application that was filed before Section 92-A was inserted. Before Section 92-A was inserted, compensations were claimed in motor accidents if the driver was negligent or rash in driving the vehicle. In this case also, the appellant filed a petition claiming compensation by alleging that the accident was due to the rash and negligent driving of the jeep. It was filed in time. But in case of no fault liability under Section 92-A, it is not necessary for the victim or legal representatives of the deceased to prove negligence or rashness on the part of the driver. Further, even if the accident had taken place only due to the negligence of the victim or the deceased, or he was partly negligent for the same, still compensation by way of no fault liability has to be granted under Section 92-A either in case of death or permanent disability vide Section 92-A (3) and (4). But in either case the petitioner/petitioners have to establish that the accident had taken place which resulted in death or permanent disability and that the vehicle of the respondent was involved in the accident and to further prove that it was insured with the insurance company if claim is made against the insurance company also. In case of tortious liability, negligence or rashness of the driver has to be established, while it need not be established in case of no fault liability. Further, even in a case where rashness or negligence is established and if the compensation amount assessed is same or less than the amount payable by way of no fault liability, the petitioner or petitioners are entitled to only the amount provided under Section 92-A towards no fault liability. But if the amount so assessed is over and above the amount payable by way of no fault liability under Section 92-A(2), then the claimants have to be paid the amount payable by way of no fault liability and the excess amount. It means that in cases of tortious liability where rashness or negligence is established, and if the amount assessed as compensation is over and above the amount payable under Section 92-A(2), the petitioner or petitioners are entitled to only former and they are not entitled to the amount provided under Section 92-A(2) over and above the former. Thus it is a case where the amount assessed in case of tortious liability includes the amount provided under Section 92-A(2) if the former is more than the latter. So where a claim is made for tortious liability, still the amount provided under Section 92-A(2) may be awarded when the claimant or claimants failed to establish rash or negligent driving in accidents occurring subsequent to 1.10.1982. The same holds good even in regard to accidents occurring subsequent to 1.10.1982. The same holds good even in regard to accidents prior to 1.10.1982, if it can be held that Section 92-A is equally applicable in regard to such accidents.
7. The same can be elaborated. Let us assume that accident occurred subsequent to 1.10.1982; one may file claim petition claiming compensation for tortious liability. One may file a composite petition claiming no fault liability under Section 92-A and also compensation for tortious liability. One may file two petitions-(1) claiming compensation under Section 92-A (2) towards no fault liability and (2) claiming compensation towards tortious liability in regard to the same accident. Can it be stated that in case of the first of these three categories, i.e., where a petition was filed claiming compensation towards lortious liability without any whisper about Section 92-A (2) that the petition has to be dismissed when rashness or negligence is not established? The answer can be emphatic negative. When more amount is claimed and when Section 92-A (4) makes it clear that amount includes the amount to be provided towards no fault liability, there cannot be any two views about the necessity to award amount under Section 92-A (2) even in the absence of claim under Section 92-A when negligence or rashness is not proved. If Section 92-A can be held as having retrospective effect, even in regard to accidents which occurred prior to 1.10.1982, such a compensation has to be provided under Section 92-A (2).
8. The decisions in Delhi Municipality v. Jagdish, ; Mandir Sita Ramji v. Governor of Delhi, and Farid Ahmed x.Ahmedabad Municipality, , referred to for R-2 do not help them in supporting the contention that Section 92-A cannot be held as retrospective. Section 476 (1) (h), Delhi Municipal Corporation Act, 19S7 provides that it is the Commissioner who had to institute and prosecute any suit or other legal proceedings. Hence the Supreme Court held in Delhi Municipality v. Jagdish , that where power is given to a certain thing in certain way, the thing must be done in that way or not at all. It was therefore held that if a legal proceeding was instituted under Delhi Municipal Corporation Act, it must be done in accordance with the provisions of that Act and not otherwise. The Supreme Court held in Mandir Sita Ramji v. Governor of Delhi, , that when a procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its notion of justice, when the legislature has spoken the judge cannot afford to be wiser. When as per Section S-A, Land Acquisition Act, the Collector has to enquire into the objection, it is for the Collector to enquire into even though he is merely a recommending authority and if Government instead of Collector enquired into the objection, the same has to be held as illegal. When personal hearing as contemplated under Section S-A, Land Acquisition Act was not given, the proceeding was held as illegal, as it is a case of non-compliance of the provision. By relying on the same, it was urged for R-2 that when there is no specific claim under Section 92-A as per Section 110-A(2) proviso, the claim in regard to the same cannot even be considered. But we have already observed that this claim is part of the claim made towards tortious liability. For the same reason, the contention advanced on the basis of the observations in Trojan & Co. v. Nagappa A.I.R. 19S3 SC 23S, has to be negatived. Therein it was observed that a decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that had to be found. In case of tortious liability, the claimants have to plead that an accident had taken place, that the vehicle of the respondent was involved in the accident and that it was due to the rash and negligent driving of the vehicle. In case of no fault liability, only the first and second facts have to be pleaded and the third fact need not be pleaded. So it is not a case where there is no plea of the relevant facts in case of no fault liability, even though no specific claim is made by way of no fault liability and it is made towards tortious liability only.
9. In Padma Srinivasan v. Premier Insurance Co. Ltd. 1982 A.C J. 191 (SC), the point that had arisen was whether the legal provision as on the date of the accident (when the accident occurred during the currency of the policy) or the legal provision as it stood on the date of the policy, had to be considered to determine the liability of the insurance company. Therein it was held that former is the criterion. But whether Section 92-A(2), Motor Vehicles Act, 1939 as introduced by Act 47 of 1982 was retrospective or not had not come up for consideration before the Supreme Court in the above decision. In that case the accident occurred subsequent to the said amendment but policy was taken earlier to that amendment. Hence that decision also is not helpful for considering whether Section 92-A is retrospective. The decision in Mithilesh Kumari v. Prem Behari Khare , was referred to in T. Srinivasulu Reddy's case, . Therein also Section 4 of Act 45 of 1988 does not contain any words to indicate whether it was retrospective or not. In view of the object of the Act, it was held that it had retrospective effect. It was made applicable even in regard to pending appeals, as an appeal is a continuation of the hearing of the suit The hearing of the appeal is in the nature of re-hearing and, therefore, in moulding the relief to be granted in a case of appeal, the appellate Court is entitled to take into account the legislative changes since the decision under appeal was given. Vide para 24 in Mithilesh Kumari v. Prem Behari Khare, .
10. Thus we do not find any reason to differ from our finding as per the judgment in T. Srinivasulu Reudy v. C. Govardhana Naidu, .
11. It is submitted that Motor Vehicles Act, 1988 had come into effect on 1.7.1989, a fact which was not brought to our notice when 7. Srinivasulu Reddy v. C. Govardhana Naidu , was heard.
12. Motor Vehicles Act, was repealed as per Section 217, Motor Vehicles Act, 1988. But it may be noted that Section 92-A, Motor Vehicles Act, 1939 is in pari materia with Section 140, Motor Vehicles Act, 1988. Section 110-A, Sub-clause (2) with proviso, Motor Vehicles Act, 1939 is similar to Section 166(2) and proviso, Motor Vehicles Act, 1988.
13. Section 217, Motor Vehicles Act, 1988 repealed Motor Vehicles Act, 1939. Section 6(c), General Clauses Act, 1897provides that unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. We held that Section 92-A, Motor Vehicles Act, 1939 applied even in regard to accidents which occurred prior to 1.10.1982. Thus, no fault liability under Section 92-A, Mown Vehicles Act, 1939 was Incurred in regard to this appellant who was involved in the accident So Inspire of the repeal of the Motor Vehicles Act, 1939, the liability arising under Section 92-A, Motor Vehicles Act, 1939 is saved.
14. Evidence discloses that the left ring finger of the appellant was permanently disabled and hit little finger suffered partial disability. Whether it amounts to permanent disability as contemplated under Section 92-A motor Vehicles Act, 1939 had to be seen. Section 91-C Motor Vehicles Act 1939 refers to injury or injuries which can be considered as permanent disablement for entitling claim under Section 92-A. Injury or injuries involving destruction or permanent impairing of the powers of my member or Joint constitutes permanent disability vide Section 92-C (b), Motor Vehicles Act, 1939. Shorter Oxford English Dictionary defines 'member' as including a part or organ of the body; chiefly a limb etc., as opposite to the trunk. So port of the finger is also a member. Permanent Impairment of the power of the same constitutes permanent disability under Section 92-C(b), Motor Vehicles Act, 1939. PW 4, the doctor, deposed that the ring finger was permanently affected. So it is a case of permanent disability under Section 92-A read with Section 92-C, Motor Vehicles Act, 1939. So compensation of Rs. 7, 500/- is awarded under Section 92-A (2), Motor Vehicles Act, 1939. Interest at 12 per cent per annum from the date of petition is also ordered.
15. In the result, the appeal is allowed in part. An amount of Rs. 7, 300/- with Interest at 12 per cent per annum from the date of petition is awarded with costs in this appeal.