Madhya Pradesh High Court
National Insurance Co. Ltd. vs Gangabai And Ors. on 16 August, 1990
Equivalent citations: 1991ACJ840
JUDGMENT S.K. Dubey, J.
1. In this revision an important question of law has been raised by the applicant National Insurance Co. Ltd. (for short 'the insurance company') contending that Section 140 of Chapter X of the Motor Vehicles Act, 1988 (for short 'the New Act') is not retrospective in operation and, as such, the Tribunal has erred in passing an interim award of Rs. 25,000/-, directing the insurance company to pay the same to the legal representatives of the deceased.
2. A few facts relevant for the purpose of this revision are thus: On 12.6.1988 deceased Babulal, the husband of respondent No. 1 and father of respondent Nos. 2 to 7, died in an accident by the use of a tractor MBC 8939, which at the relevant time was insured with the insurance company. The respondents-claimants filed an application under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the repealed Act') claiming compensation of Rs. 5,66,000/-. The insurance company, the owner and the driver of the vehicle after notice filed their written statement denying their liability. The claimants moved an application on 22.12.1988 under Section 92-A of the repealed Act for passing an interim award. On 16.3.1989 the Tribunal passed the interim award of Rs. 25,000/- instead of Rs. 15,000/- as the fixed sum of compensation by Section 92-A (2) of Chapter VII-A of the repealed Act. The insurance company moved an application under Section 151 of the Civil Procedure Code, for recalling of the award and for correcting the amount of compensation from Rs. 25,000/- to Rs. 15,000/-. The Tribunal disposed of the application on 3.1.1990 holding that on the date on which the interim award of Rs. 25,000/- was passed under Section 92-A of the repealed Act, the New Act was not in force, but as the New Act has been enforced from 1st July, 1989, the award of Rs. 25,000/-so passed is legal and proper. Aggrieved of this award, the insurance company has come up in revision challenging the validity of the interim award.
3. Mr. B.N. Malhotra, learned counsel appearing for the insurance company and Mr. T.C. Bansal, learned counsel for the respondents-claimants, were heard at length. Mr. Bansal supported the award and contended that no fault liability Clause is retrospective in operation. He placed reliance on a few decisions of various High Courts, wherein it has been held that the object of the provision seems to provide solatium to persons who are affected by the untimely death or permanent disablement of the victim; the provision was introduced as a welfare measure to benefit the persons who are victims of road accidents. In these cases it is also observed that there is no reason why the provision should be given a restricted application by confining it to cases where the accidents took place subsequent to the introduction of the provision; every beneficial measure must be applied liberally and Section 92-A must be held to apply to pending proceedings. Those decisions are: K.P. Ali v. M. Madhavan 1990 ACJ 373 (Kerala); Vilasini v. Kerala State Road Trans. Corporation 1988 ACJ 755 (Kerala); Devji v. Anwarkhan 1989 ACJ 567 (MP); Rukmabai v. Ramlal 1988 ACJ 351 (MP) and Oriental Fire & General Insurance Co. Ltd. v. Shantabai S. Dhume 1987 ACJ 198 (Bombay). Placing reliance on Mithilesh Kumari v. Prem Behari Khare AIR 1989 SC 1247 and Laxmi Narayan Guin's case AIR 1985 SC 111, learned counsel also contended that on the general principle of interpretation that when the language of a new enactment, expressly or by clear intend-ment, gives its effect retrospectively, it should be applied retrospectively by the trial court as well as the court of appeal and that the court should give effect to such a law.
4. In my opinion, the aforesaid cases relied on by Mr. Bansal have no application to the present case, for the reason that the settled view of this court is that Section 92-A is not retrospective in its operation and will not apply to pending cases. [See Division Bench decision in Karuram v. Omprakash 1989 ACJ 941 (MP) and Shamsher Khan v. M.P. Electricity Board 1988 ACJ 394 (MP), though a different view has been taken subsequently by a Division Bench of this court in Bhagwandas v. National Insurance Co. Ltd. 1990 ACJ 495 (MP)]. Against that decision Special Leave Petition Nos. 14593-94 of 1989 were filed by the insurance company, wherein the Apex Court accepted the submission that in view of the fact that the accident took place prior to insertion of Section 92-A into the Motor Vehicles Act, 1939, the High Court had no justification to refer to that provision for fixing liability for the compensation on the insurer. In case of Bhagwandas (supra), Dr. T.N. Singh, J. and K.K. Verma, J., have written their separate judgments. Verma, J. in para 61 of the judgment had not dealt with the retrospective applicability of Section 92-A of the repealed Act and observed that it was not necessary to examine and consider the plea under Section 92-A, while Dr. T.N. Singh, J., in paras 68,73 and 74 had held that till such time as "the person liable to pay compensation in accordance with the right on principle of fault" has not been absolved finally of his liability arising out of the accident, his liability under Section 92-A shall subsist and always remain enforceable. Besides, in this judgment the learned judges have not considered the earlier Division Bench view of this court in Karuram's case 1989 ACJ 941 (MP), which perhaps was not brought to the notice of the Division Bench in Bhagwandas' case 1990 ACJ 495 (MP) and which is binding on this court. The other two Single Bench decisions, namely, Rukmabai's case 1988 ACJ 351 (MP) and Devji's, case 1989 ACJ 567 (MP), relied on by Mr. Bansal, are not on the point that the inserted Section 92-A would be applicable to pending cases which were instituted before insertion of Section 92-A in the repealed Act, but in those cases it has been held that while awarding compensation in a case of death, just compensation can be awarded on the analogy of Section 92-A at the time of passing final award, which is the intendment of Parliament for awarding just compensation even in cases of no fault liability.
5. It is the golden rule of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation; it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. [See Garikapati v. Subbiah Choudhry AIR 1957 SC 540 and S.S. Gadgil v. Lal and Co. AIR 1965 SC 171]. Therefore, to find out whether Section 140 of the New Act is retrospective in operation in pending cases, it is essential to see various provisions of Chapter X and Section 217, which deal with repeal and savings. Chapter X deals with "Liability without fault in certain cases". Section 140 of the New Act corresponds to Section 92-A of the repealed Act. Section 140 is quoted in extenso:
140. Liability to pay compensation in certain cases on the principle of no fault.-(1) Where 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 twenty-five 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 twelve thousand 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 subSection (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.
6. A bare reading of the Section does not indicate that after the enforcement of the New Act, it will apply to pending cases too. Sections 141, 142 and 143 are not relevant for the purpose of the question involved in this petition. Section 144 is a non-obstante Clause and speaks that the provisions of Chapter X will have overriding effect, which lays down that "the provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force". This Section also does not speak of retrospective operation on pending cases of Chapter X either expressly or by necessary implication.
7. Section 217 deals with repeal and savings and reads as under:
217. Repeal and savings.-(1) The Motor Vehicles Act 1939 (4 of 1939) and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this Section referred to as the repealed enactments) are hereby repealed.
(2) Notwithstanding the repeal by subSection (1) of the repealed enactments-
(a) any notification, rule, regulation, order or notice issued, or any appointment or declaration made or exemption granted, or any confiscation made, or any penalty or fine imposed, any forfeiture, cancellation or any other thing done, or any other action taken under the repealed enactments and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been issued, made, granted, done or taken under the corresponding provision of this Act;
(b) any certificate of fitness or registration or licence or permit issued or granted under the repealed enactments shall continue to have effect after such commencement under the same conditions and for the same period as if this Act had not been passed;
(c) any document referring to any of the repealed enactments or the provisions thereof, shall be construed as referring to this Act or to the corresponding provision of this Act;
(d) the assignment of distinguishing marks by the registering authority and the manner of display on motor vehicles in accordance with the provisions of the repealed enactments shall, after the commencement of this Act, continue to remain in force until a notification under Sub-section (6) of Section 41 of this Act is issued;
(e) any scheme made under Section 68-C of the Motor Vehicles Act, 1939 (4 of 1939) or under the corresponding law, if any, in force in any State and pending immediately before the commencement of this Act shall be disposed of in accordance with the provisions of Section 100 of this Act;
(f) the permits issued under Sub-section (1-A) of Section 68-F of the Motor Vehicles Act, 1939 (4 of 1939), or under the corresponding provisions, if any, in force in any State immediately before the commencement of this Act shall continue to remain in force until the approved scheme under Chapter VI of this Act is published.
(3) Any penalty payable under any of the repealed enactments may be recovered in the manner provided by or under this Act, but without prejudice to any action already taken for the recovery of such penalty under the repealed enactments.
(4) The mention of particular matters in this Section shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
Sub-section (1) repeals the Motor Vehicles Act, 1939. Sub-section (2) deals with savings of the categories of things or act done as specified in Clauses (a) to (f). A bare reading of this subSection shows that wherever the Parliament wanted to enforce the provisions of the Act of 1988 on pending matters, it made a specific provision, but Chapter X was not so made applicable. Sub-section (4) speaks that the mention of particular matters in this Section shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897, with regard to the fact of repeal. Therefore, by reading the various provisions of Chapter X, Section 217 and Section 6 of the General Clauses Act, 1897, there leaves no doubt that the legal proceedings instituted before repeal are to be continued or enforced, as if the New Act has not been passed at all. It is also significant that Section 6 of the General Clauses Act, 1897, applies where no different intention appears. On going through the provisions of the New Act, the scheme and the intention of the Parliament, there is no intendment, either express or by implication, that the provisions of Chapter X of the New Act have been made retrospectively applicable to pending litigations.
8. It is true that the Act is a social welfare legislation, but Section 140 cannot be held to have retrospective application in the absence of a clear intention from the scheme of the New Act. Moreover, this cannot be a guideline to interpret a statute in a manner which is against the settled principle of law being followed up to this date, particularly when Section 217 of the New Act in certain cases has made a provision that the pending application on the enforcement of the Act shall be dealt with in accordance with the provisions of the New Act, but such a provision has not been made for the applications under Section 110-A or for the applicability of Section 140 to a pending litigation. Therefore, I am satisfied and am of the clear opinion that the provision of Section 140 of the New Act is not made to operate retrospectively.
9. The Apex Court's decisions in Mithilesh Kumari's case AIR 1989 SC 1247 and Laxmi Narayan Guin's case AIR 1985 SC 111, are of no help to the claimants, as, on going through the various provisions and the scheme, no presumption arises about the retrospective application of Section 140 of the New Act, as the language employed in the statute does not warrant, on a proper construction, to have the intention of the Parliament of applying the provisions of Chapter X of the New Act retrospectively.
10. At the time of dictating this order, Mr. Malhotra has submitted that the interest of the insurer has not been saved by the impugned award, as under Section 96 (4) of the repealed Act the insurance company has raised a defence and, certainly, the insurance company, if it is able to prove the defence so raised, would be entitled to recover the excess amount for which the insurance company would be liable under the policy in respect of the liability of the insured. Mr. Bansal also submitted that as the amount has not been paid to the claimants, the claimants are entitled to interest at the rate of 12 per cent per annum from the date of the interim award till the date of deposit. The first order was passed on 16.3.1989 and in compliance of that order the insurance company should have immediately thereafter deposited Rs. 15,000/-, but having not done so, the insurance company is liable to pay interest at the rate of 12 per cent per annum on the amount of Rs. 15,000/-from the date of the first order till the date of deposit.
11. In the result, the revision is partly allowed and it is held in the present case that the liability of the insurance company will be under Section 92-A of the repealed Act and not under Section 140 of the New Act. In the circumstances, parties to bear their own costs.