Andhra HC (Pre-Telangana)
Pyla Nestalamma And Anr. vs Sreeram Setti Adibadu And Ors. on 21 January, 1987
Equivalent citations: II(1987)ACC563
JUDGMENT Jagannadha Rao, J.
1. Two questions arise for decision in these two appeals. The first question is whether the provision in Section 92-A of the Motor Vehicles Act (for short the "Act") with regard to the liability on the principle of "no fault" brought in by Act 47 of 1982 is retrospective in nature. The second question is whether on the facts of each of these two appeals, the negligence on the part of the driver of the vehicle is made out.
2. C.M.A. 1006 of 1981 arises out of O.P. No. 54 of 1980 while C.M.A. 47 of 1982 arises out of O.P. 51 of 1980. These two O.Ps. and some other O.Ps. were disposed of by the Motor Accidents Claims Tribunal, East Godavari at Rajahmundry by a common judgment. The Tribunal came to the conclusion that the evidence adduced on behalf of the claimants did not establish negligence on the part of the driver of the vehicle at the time when the two persons in question died consequent to the accidents occurred on 13-10-1979. On the basis of the said finding, the Tribunal dismissed the O Ps. Against the said judgment in respect of two O Ps. these two appeals are preferred in this Court.
3. In these appeals, it is contended by the Learned Counsel for the appellants, that, in any event, the claimants are entitled to a sum of Rs. 15,000/- in each of these cases in view of the provisions contained in Section 92-A of the Act introduced by the Amendment Act 47 of 1982 with effect from 1-10-1982. It is argued that the said provision is retrospective in nature and applies even in respect of accidents which had taken place prior to 1-10-1982. Alternatively, it is argued that the evidence adduced on behalf of the claimants established negligence on the part of the driver of the vehicle and that, therefore, the Tribunal ought to have awarded reasonable damages in respect of the death of these two persons.
4. On the other hand, it is contended by Sri S.V.S R. Somayajulu, Learned Counsel for the Insurance Company that the provision introduced in Section 92-A of the Motor Vehicles Act is not retrospective and that, that section applies only to cases where the accident occurred subsequent to 1-10-1982. Alternatively, he contended that the finding of the lower court that there was no negligence on the part of the driver is correct.
5. Initially, I shall deal with the first point. Under Section 92-A, Parliament introduced the principle of compensation in "no fault" cases, that is to say irrespective of the question of negligence on the part of the driver of the vehicle That provision was introduced by Act 47 of 1982 with effect from 1-10-1982. In the present case, the accident occurred on 30-12-1979 and the O.Ps. were filed in 1980 and disposed of by the Tribunal on 28-8-1981. Against the said judgment, the present appeals have been preferred and are pending.
6. The question that arises is whether the provision contained in Section 92-A can be applied to these cases in which the accident occurred prior to the introduction of Section 92-A. It is argued for the appellants that the provision is a place of welfare legislation and that the intention of the Parliament was that the same should be applied retrospectively. On the other hand, it is argued for the respondents that the fact that the statute imposes an additional liability on the Insurance Company, it follows that the Act wag not intended to be retrospective unless there is any express provision in the statute or there is a necessary implication.
7. I am of the view that the intention of Parliament is not to give retrospective effect to Section 92-A of the Act inasmuch as the section imposes a new and additional liability on the Insurance Company, which was not in existence on the date of the accident. Hence the said provision cannot be construed as having retrospective effect. In other words, it is the date of the accident that is relevant and the liability has to be computed with reference to the statutory provision in force as on the date of the accident.
8. A similar question arose before the Supreme Court in Padma Srnivasan v. Premium Insurance Co. Limited AIR 1982 (2) Page 836.
In that case, the Supreme Court was dealing with the amendment to the Motor Vehicles Act under Act 56 of 1969 by which the liability of the Insurance Company was raised from Rs. 20,000/- to Rs. 50,000/-. Their Lordships of the Supreme Court pointed out that the policy contained an undertaking by the Insurance Company to become liable in respect of "liability as to one under Chapter 8 of the Motor Vehicles Act, 1939," and that the said undertaking has to be construe along with the provisions of the statute as one the date of the accident. Their Lordships observed as follows:
If the parties to the contract agreed that one shall pay to the other damages for breach of contract in accordance with the law contained in any particular statute, without identifying the law as the provision which is in force on the date on which the oreach of contract is committed, that being the date on which the cause of action arises, and not the law which was in force on the date on which the contract was made.
They further observed as follows:
The application of a Jaw to facts which come into existence after that law has come into force does not involve giving retrospective operation of the law, merely because the facts to which the law is being applied are relatable to a contract or an instrument which had come into operation prior to the date on which the law itself had come into force.
The Supreme Court then observed that the words "liability as the one under Chapter VII of the Motor Vehicles Act 1939" mean liability as determinable under Chapter VIII at the relevant time, that is to say, at the time when the liability arises. Since the liability of the insurer to pay a claim under a motor-accident policy arises on the occurrence of the accident and not until then, one must necessarily have regard to the state of the law obtaining at the time of the accident for determining the extent of the insurer's liability under a statutory policy. In this behalf, the governing factor for determining the application of the appropriate law is not the date on which the policy of insurance came into force but the date on which the cause of action accrued for enforcing liability arising under the terms of the policy.
9. From the aforesaid ruling, it is clear that in cases where the statute is amended subsequent to the grant of an Insurance Policy and the accident occurred subsequent to the amendment of the law, then the liability of the Insurance Company under the policy would be as per the amended law inasmuch as the liability arose on the date of the accident. However, in cases where there is an amendment to the law subsequent to the grant of the policy, but the accident occurred prior to the date of the amendment of the law, then the liability of the Insurance Company will be according to the law that was in force oh the date of the accident prior to the amendment.
10. In these two cases before me, there is a clear endorsement in the policy Ex. v. 3 that the limit of liability is "such amount as is necessary to meet the requirements of the Motor Vehicles Act 1939". In view of the abovesaid condition of the policy, it is clear that the liability of the Insurance Company will be as one the date when the accident occurred. Inasmuch as Section 92-A was not in force on the date of the accident, the appellants cannot rely on the provisions of Section 92-A. I therefore reject the first contention.
11. The second contention of the Learned Counsel for the Appellants is that the Court below no doubt came to the conclusion that the negligence on the part of the driver of the vehicle was not made out. But it is contended by the Learned Counsel for the Appellants that the evidence clearly establishes negligence on the part of the driver. I shall now refer to this evidence.
12. P.W. 1 is the wife of Apparao who died in the accident and who is the Petitioner-Claimant in O.P. No. 51 of 1980. She says that the deceased was aped 30 years at the time of the accident. She further says that the deceased was working as a Coolie in Sri Ramadas Motor Transport Parcel Service and was earning Rs. 15/- to Rs. 20/- per day. She came to the village after the accident occurred and went to the General Hospital and found that her husband died. Now she, along with her two children who were aged 13 years and 6 years respectively, is living with her parents. It is suggested to her that she had re-married after the death of her husband and was living in another village. It is also suggested to her that the deceased was earning only Rs. 6/- per day as a Coolie.
13. P.W. 2 is the first petitioner in O.S. No. 53 of 1980. The other petitioners are her father-in-law and mother-in-law. Her husband also died in the same accident. Her husband is a Cycle Rickshaw Puller. She does not know whether her husband had another wife by name Seetharatnam, shown as Petitioner in O.P. 132/80 or about her having a son. Her husband was earning Rs. 10 to Rs 20/- per day by pulling the Cycle Rickshaw. It is suggested to her that she is not the wife of the deceased and that she is not the wife of the deceased and that she has set up a false case and that one Seetharatnam is the wife of Appa Rao.
14. P.W. 3 is the father of the deceased who is concerned in O.P. No. 54 of 1980. He speaks to the fact that P.W. 2 is the daughter-in-law and that P.W. 2 married his son and he further states that the deceased was earning Rs. 10/- to Rs. 15/- per day by pulling the Rickshaw Cycle.
15. P.W. 4 is the petitioner in O.P. No. 132/80. She has not filed any appeal. P.W. 5 is the father of P.W. 4 and it is not necessary to consider his evidence. The above is the evidence of the family members of the deceased. I shall now refer to the evidence of persons who claimed to be eye witnesses to the accident.
16. P.W. 6 is one Nagaraju who is also a Rickshaw Puller. He says that he was turning back from Metlapalem with his Rickshaw and reached Kobberichetlapalen near the arrack shop at 3-30 P.M. and found two persons namely the deceased sitting on the front rod of the cycle while the cycle was being driven by the other person. That cycle was proceeding in front of P.W. 6 on the left side of the rod, 20 yards ahead of the witness. Then the bus which was coming from the direction of Yanam and was proceeding towards Kakinada passed by the side of P.W. 6 at high speed and rashly and negligently proceeded further and hit the Cycle on which the deceased and another person were going together. Both the persons fell down. One person died on the spot while the other severely injured The bus halted after going a few yards The injured parson was taken to hospital in another Van while the dead body was left on the spot. He went to his house and then informed the parents of the deceased and P. W. 4. In cross-examination, he no doubt stated that he attended the Court when P.W. 4 gave evidence, but it is not clear whether he was present inside the court hall. His house is next to the house of the deceased (in O P. No. 54 of 1980). He further stated in the cross-examination that he and the cycle of the deceased were all going in the same direction. The bus came from behind him and proceeded further for about 20 yards and then hit the cycle. Merely because the bus was proceeding in front of the witness and he could not actually see the bus hitting the two persons, his evidence cannot be disbelieved. The witness was also proceeding in the same direction and he was able to see what happened before the accident and what happened immediately after the accident. Having regard to such a situation, his evidence cannot be disbelieved.
17. P.W. 8 is working in the Arrack Depot at Kobberichetlapalem. He states that he was present at the Arrack Depot. The bus came from Yanam direction towards Kakinada and rashly and fastly at high speed without blowing horn and hit the cycle. The two persons on the cycle were injured; one of them died and the other was taken to the hospital. The cycle was smashed and the front wheel of the cycle got separated from it. In cross-examination, he stated that there was no specific name given to the Arrack Shop. He and one Dharma Raju were the Salesmen at the arrack shop. He stated that there was no pendal and that the compound was not enclosed. Ex. B. 2 Photograph was put to him with a view to see that there was a pendal. But it is not clear when this photograph was taken and the pendal was erected. From that fact alone, his evidence cannot be disbelieved. It is true that he stated that he did not know whether Dharma Raju was the owner of the Arrack Shop. But in my opinion, it is not meant that he was working in the Arrack Shop. After all the witness may not be knowing as to who is in management of the Arrack shop and as to who is the owner of the shop.
18. R.W. 1 is the driver of the vehicle and he no doubt states that he was not driving the vehicle negligently or rashly. But having regard to the evidence of P.Ws. 6 and 8,1 am cot inclined to accept the evidence of R.W. 1.
19. R.W. 2 is Dharma Raju who is working as a Salesman in the Arrack Shop. He states that the licence of the Depot was standing in his name. From that evidence, it does not follow that P.W. 8 was speaking false. As already stated, P.W. 8 may not be knowing the distinction between the Management of the shop and the actual licensee. In view of the evidence of P.Ws. 6 and 8,1 am of the view that the appellants have made out a case that the vehicle was being driven rashly and negligently by R.W. 1 and that it accordingly hit the cycle on which the two deceased persons were travelling. Reversing the finding of the Tribunal, I hold that the appellants have established negligence on the part of the driver.
20. Having regard to the income mentioned by P.Ws. I and 2,1 am of the view that the compensation of Rs. 15,000/- would be adequate in each of these two cases.
21. For the aforesaid reasons, the appeals are allowed and a decree is passed in favour of the Claimants in these two O.Ps. for a sum of Rs. 15,000/-. The Tribunal is directed to make necessary apportionment between the various claimants. No costs.
22. These appeal having been set down for being mentioned on Friday the 6th day of March 1987 pursuant to the office note and upon perusing the Judgment of the High Court dated 22-1-1987 and passed herein, and upon hearing the arguments of Mr. C. Obulpathy Chowdary, Advocate for the Appellants in both the appeals and of Mr. M.S.K. Satry, Advocate for Respondent Nos. 1 and 2 in both the appeals and of Mr. S.V.R.S. Somayajulu, Advocate for Respondent No. 4 in Doth the appeals, the Court made the following Order:
23. In CMA 44/82 there will be a further direction that the shares of the claimants 2 and 3 who are minors shall be deposited in a Nationalised Bank for a period extending roughly upto their date of attaining majority and the interest accruing on the amount so deposited shall be paid to their legal guardian, every three months.
24. The amount of compensation shall be recovered from the 4th Respondent, viz., the New India Assurance Company inasmuch as it is admitted that the 4th Respondent alone insured the vehicle and not the 3rd Respondent. There will be no decree against the 3rd Respondent.
25. The above direction will be incorporated in the decree.