Karnataka High Court
Smt Saritha W/O Mahesh vs Boregowda S/O Siddegowda on 20 July, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2022
R
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.No.10796/2011(MV)
C/w
M.F.A.No.10795/2011(MV)
M.F.A.NO.10796/2011
BETWEEN:
SRI.K.J.KRISHNA
SINCE THE DEAD ARE REPRESENTED BY LR'S
PROPOSED APPELLANT
1(A) SMT.RADHA
W/O LATE K.J.KRISHNA
AGED ABOUT 57 YEARS
1(B) SMT.SARITHA K
D/O LATE K.J.KRISHNA
AGED ABOUT 37 YEARS
1(C) SMT. SAVITHA K K
D/O LATE K.J.KRISHNA
AGED ABOUT 34 YEARS
1(D) SRI.DEEPU K K
S/O LATE K.J.KRISHNA
AGED ABOUT 31 YEARS
1(E) SRI.ARJUN K K
S/O LATE K.J.KRISHNA
AGED ABOUT 28 YEARS
(CAUSETITLE AMENDED AS PER COURT ORDER DT:22.06.2021)
ALL ARE R/AT KAMALAPURA VILLAGE
PIRIYAPATNA TALUK, MYSURU DISTRICT ...APPELLANTS
(BY SRI C.VINAY SWAMY, ADVOCATE)
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M.F.A.NO.10795/2011
BETWEEN:
SMT.SARITHA
W/O MAHESH
D/O K.J.KRISHNA
AGED ABOUT 34 YEARS
7TH BLOCK, 4TH CROSS
BASAVESHWARANAGAR
BANGALORE ...APPELLANT
(BY SRI C.VINAY SWAMY, ADVOCATE)
AND:
1. BOREGOWDA S/O SIDDEGOWDA
DRIVER OF TRACTOR - TRAILER NO.
KA-09 T 3555-3556
AMMANAKOPPALU
PERIYAPATNA TALUK
2. SIDDEGOWDA S/O BOREGOWDA
AGED ABOUT 73 YEARS
RAMANATHA THUNGA VILLAGE
PERIYAPATNA TALUK
OWNER OF TRACTOR - TRAILER NO.
KA-09 T 3555-3556
3. UNITED INDIA INSURANCE COMPANY LTD.
CLUB COMPLEX, HUNSUR - 571105
POLICY NO.070602/31/06-01-00008887
VALID UP TO 21.03.2008 ...RESPONDENTS
(COMMON IN BOTH APPEALS)
(BY SRI JWALA KUMAR, ADVOCATE FOR R3;
V/O/DTD:27.01.2021 NOTICE TO R1 & R2 DISPENSED WITH)
THESE APPEALS ARE FILED UNDER SECTION 173(1) OF THE
MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.03.2011
PASSED IN MVC NOS.1945/2010 AND 1946/2010 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
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THESE APPEALS COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Whether the rights conferred under S.166 (5) of the Motor Vehicles Act, 1988, ( 'Act of 1988' for short) to the legal representative/s of the deceased claimant, are available to him/them if the claimant had died prior to the commencement of Act no.32/2019 and during the pendency of claim petition or appeal by the claimant, is the question.
2. Or to put it differently, whether Section 166(5) of the Act of 1988 is having prospective, retrospective or retroactive operation?
3. In terms of the judgment and awards dated 07.03.2011, in M.V.C.No.1945/2010 and M.V.C.No.1946/2010 on the file of the Fast Track Court, Hunsur, the Tribunal awarded compensation of Rs.3,36,200/- in favour of the claimant in M.V.C.No.1945/2010 and Rs.1,15,000/-in favour of the claimant in M.V.C.No.1946/2010. Both the claimants are in appeal seeking enhancement of compensation. 4
4. The claimant/appellant in M.F.A. 10796/2011 expired on 13.06.2019. His legal representatives are brought on record to prosecute the appeal.
5. The findings of the Tribunal regarding the injuries and disability sustained by the claimants in both cases are not disputed and the insurer has not questioned the liability.
6. The Motor Vehicles Act, 1988 is amended in terms of Act No.32/2019. The amendment is notified on 01.04.2022. sub-section 5 of Section 166 of the Motor Vehicle Act is relevant to this case. Sub-section 5 of S.166 of the Motor Vehicles Act, 1988 reads as under:
"(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus".
7. Since the claimant before the Tribunal in MVC no. 1945/2010 who filed appeal in MFA 10796/2011 died on 13.06.2019, whether the legal representatives of the deceased appellant who have come on record vide order dated 22.06.2021 can pursue the appeal on all grounds available to 5 original claimant/appellant is required to be considered in the light of sub-section 5 of Section 166 of the Act of 1988. The insurer would contend that the since appellant died before introduction of S.166 (5) of the Act of 1988, the rights flowing from the said provision is not available to the legal representatives of the deceased appellant.
8. Heard the learned Counsel Sri. C. Vinay Swamy appearing for the claimants - appellants and the learned Counsel Sri. Jwala Kumar appearing for the respondent - insurer.
9. Learned Counsel for the claimants/appellant Sri. C. Vinay Swamy would raise the following contentions.
x The Motor Vehicle Act, of 1988, is a beneficial legislation and sub-section 5 of Section 166 of the Act, is introduced more as a clarification to the existing law as such the present appellants who are the legal representatives of the deceased claimant are entitled to claim compensation on all grounds available to the original claimant. 6 x Sub-section 5 of Section 166 of the Act of 1988, being declaratory or clarificatory in nature, must be construed to have retrospective effect. Consequently, though the original claimant died before the introduction of sub-section 5 of Section 166 of the Act of 1988, the present appellants who are his legal representatives should be allowed to prosecute the appeal on all grounds available to the original claimant. Reliance is placed on Commissioner of Income Tax v/s. Vatika Township Pvt. Ltd. (2015), 1 SCC, 1.
x Alternatively, assuming that S.166 (5) of the Act is held to be prospective in operation, in terms of the law laid down in the case of Oriental Insurance Company V/s Kahlon @ Jasmail Singh Kahlon, (AIR 2021 SC 3913), the appeal does not abate on account of the death of original claimant/appellant and right to seek enhancement of compensation under the head of loss of estate, if not under the heads of pain and suffering and loss of amenities is still available. 7 x The learned Counsel for the insurer Sri. Jwala Kumar would raise the following contentions. x The original claimant died on 19.06.2019, during the pendency of this appeal. As on the date of his death, the sub-section 5 of S.166 of the Act was not brought into effect. The right to prosecute survives on the legal representatives as per the law as it stood at the time of the death of the original claimant. Thus legal representatives cannot seek enhancement of compensation on the heads which are personal to the original claimant. x The amended provision seeks to confer new rights and create new liabilities. Such a provision cannot have a retrospective effect unless made retrospective either specifically or by implication. There is nothing in the Act to infer or indicate that S.166 (5) of the Act has a retrospective operation. Thus on account of the death of the appellant, the appeal has abated in 2019, and there is no scope to re-determine the compensation payable to the 8 present appellants, who are the legal representatives of the deceased appellant. Analysis
10. It is the well-settled position of law, that the parliament is competent to amend the laws (except penal laws) with retrospective effect. In other words, it can create new rights and obligations with retrospective effect. Needless to say that such amendments with retrospective effect shall not have harsh and unreasonable consequences.
11. If the enactment specifically provides that the law is retrospective in operation, then there is no difficulty in saying that the law is retrospective. If there is no provision in the law which makes it explicitly retrospective, then whether the law is prospective or retrospective in operation needs to be understood by ascertaining the intention of the legislature. Here the tools of statutory interpretation play a role. What are those tools and how those tools are to be applied in interpreting the statute are also extensively dealt with in various judgments of the Apex court. At this juncture it is profitable to rely on the judgment of the Apex court in the 9 case of Zile Singh v. State of Haryana, (2004) 8 SCC 1: Some portions of observations of Apex court in paragraphs no. 13 to 19 of the said judgment, relevant to the case on hand are extracted as under:
13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. ...........
------- It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication, especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole
14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is "to explain" an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already 10 implicit. A clarificatory amendment of this nature will have a retrospective effect.
15. --------------------- In the absence of a retrospective operation having been expressly given, the courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated. (p. 388) The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to the accrued right. (p. 392)
16. Where a statute is passed for the purpose of supplying an obvious omission in a former statute or to "explain" a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature.
17. Maxwell states in his work on Interpretation of Statutes (12th Edn.) that the rule against retrospective operation is a presumption only, and as such it "may be overcome, not only by express words in the Act but also by circumstances sufficiently strong to displace it" (p. 225). If the dominant intention of the legislature can be clearly and doubtlessly spelt out, the inhibition contained in the rule against perpetuity becomes of doubtful applicability as the "inhibition of the rule" is a matter of degree which would "vary secundum materiam" (p. 226) 11
18. In a recent decision of this Court in National Agricultural Coop. Marketing Federation of India Ltd. v. Union of India [(2003) 5 SCC 23] it has been held
--------------- The retrospectivity is liable to be decided on a few touchstones such as: (i) the words used must expressly provide or clearly imply retrospective operation;
(ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii) where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. ----
---
19. The Constitution Bench in Shyam Sunder v. Ram Kumar [(2001) 8 SCC 24] has held: (SCC p. 49, para 39) "Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or to explain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word 'declaration' in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective." (p. 2487).
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12. Bearing in mind well-established principles reiterated in the judgments referred supra, to answer the question whether sub-section 5 of Section 166 of the Act is retrospective or prospective in operation, this court has to consider the position of law before the amendment of 2019. Before the amendment, S. 166 of the Act reads as under:
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application:1 1
Added by Act 54 of 1994, sec.52 (w.e.f. 14-11-1994).13 2
[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] 3[ ****] [(4) The claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.] 3
13. The Act of 1988 conferred exclusive jurisdiction on the Tribunals constituted under the Act, to adjudicate the claims arising out of motor vehicle accidents. S. 166 (1) (a) provided for compensation in respect of injury to the claimant, 2 Subs. by Act 54 of 1994, sec 53, for sub-section (2) (w.e.f. 14-11-1994). 3 sub-section (3) omitted by Act 53 of 1994, sec.53 (w.e.f. 14-11-1994). 4 subs. by Act 54 of 1994, sec.53, for sub-section (4) (w.e.f.14-11-1994). 14 166 (1)(b) provided for compensation in respect of property damage and S.166 (1) (c) compensation on account of death.
14. There is no provision in the Act, which expressly prohibited the legal representatives of the injured claimants to come on record and prosecute the claim petition when the injured claimant died during the pendency of his claim petition or pendency of the appeal. At the same time, there is no provision which expressly permitted the legal representatives of the injured who died pending lis, to come on record and to prosecute the matter. By referring to S.166 (1) ( c ) the legal representatives were permitted to come on record on proof of the fact that the claimant died during the pendency of lis owing to the injuries he sustained in the accident.
15. It is also required to be noticed that various High courts and the Supreme court held that the legal representatives of the injured claimant, who died during the pendency of litigation, can come on record and prosecute the claim petitions on limited grounds. The claims on the ground of pain and suffering, and loss of amenities in life are held to be the claims personal to the claimant who died during the 15 pendency of lis and consequently claims under those heads are not awarded in favour of legal representatives.
16. Motor Vehicles Act, of 1988 is a social welfare measure aimed at mitigating the hardship resulting from a motor vehicle accident. The intention of the legislature is explicit. There is no denial that the one of the objects of the Motor Vehicles Act of 1988 is to provide a cost-effective, speedy and simple mechanism to pay monetary compensation to the victims of motor vehicle accidents. The Act aimed at substituting the expensive common law remedy. The term 'compensation' is not defined under the Act. The plain grammatical meaning of the term compensation is wide enough to include payment for actual pecuniary loss as well as a payment under non-pecuniary heads. The maxim actio personalis moritur cum persona, meaning thereby a personal right of action dies with the person, which applies to action in common law, has no place in the scheme of the Act of 1988, if the Act is viewed keeping in mind its object of compensating the victims of the motor vehicle accident. Thus the provisions of the Act before the amendment of 2019 did not contain any 16 specific provision which would say that the action brought by the injured claimant would die along with his death.
17. Amending Act of 2019 has introduced many changes in the Act. S.166 (5) is one of the several amendments introduced in the Act. S.166 (5) is relevant to the present case.
The reading of S.166 (5) would reveal that to apply the said provision following things must exist
a) An accident involving a motor vehicle,
b) a claim petition filed by the injured,
c) and his death during the pendency of the petition/appeal.
d) Legal representative/s to prosecute the proceeding.
18. After considering the requirement and scope of this provision, two things emerge.
a) The provision does not contain anything to suggest that the provision is not applicable in a situation where the death of the claimant took place before the amending Act of 32 of 2019.
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b) The said provision does not specify that is applicable only in respect of causes originating after the Act of 32 of 2019.
19. The provision before the amendment was not explicit in saying that the legal representatives cannot prosecute the claim petition after the demise of the injured claimant during the pendency of the lis. Section 166 (5) is enacted to declare the position of law or to clarify the position as it stood since 1988. It is enacted to provide for the obvious omission. This being the position there is no difficulty in holding that S.166 (5) of the Act is applicable even in a situation where the claimant injured died during the pendency of the lis and before the commencement of amending Act of 2019.
20. Whenever the law is amended creating new rights and liabilities, the creation of new rights and liabilities is always urged as a primary ground to rule against retrospectivity on the premise that the vested rights and liabilities cannot be altered unless the law specifically provides 18 for retrospective operation. The insurer in this case is opposing the claim for the retrospective operation of S.166 (5) of the Act on the same premise. This contention of the insurer has no merit. The reason is fairly simple. The object and reasons to the Motor Vehicles Act, 1988 provides that some of the more important provisions of the bill provide for the following matters namely:-
(a).....
(j) provision for payment of compensation by the insurer to the extent of actual liability to the victims of the motor accidents irrespective of the class of vehicles;
(Emphasis supplied)
21. From the perusal of the above extracted object of the Act of 1988, it is apparent that the liability to compensate the victim was already there in the Act of 1988. And the wording used in the aforementioned extract of the object is 'actual liability'. The amendment does not fasten or impose a new liability on the insurer. The existing liability of the insurer towards the injured gets transmitted in favour of the legal representative/s of the injured claimant who dies during the pendency of the lis. No new liability is created nor any right is 19 extinguished. Only the obligation of the insurer towards the injured is sought to be reappropriated in favour of legal representatives. Thus the prime ground to rule against retrospectivity, that it creates new rights and obligations, falls flat. Any other interpretation favouring prospective operation of sub-section (5) of S.166 of the Act of 1988 would defeat the very purpose of amendment.
22. For the reasons assigned above, this Court is of the view that S.166 (5) of the Act is declaratory or clarificatory. It will have a retroactive operation. Consequently, the pending claim petitions under S.166 of the Act and the appeals arising from the judgment and award do not abate on account of the death of the injured claimant.
23. The legal representatives of the deceased can prosecute the petition or appeal seeking compensation on all grounds available to the injured who dies during the pendency of the petition or appeal, even if the death took place before the commencement of the amending Act of 32 of 2019. 20
24. The next question is, "Whether the claimants have a case for enhancement of compensation?"
25. The records produced before the Court would indicate that the claimant in M.V.C.No.1945/2010 has suffered the following injuries:
1. Right and left shoulder dislocation.
2. Fracture of the left leg.
3. Exclusive tendon injury of the left index finger.
26. It is also forthcoming from the records that he was inpatient for 45 days and the Tribunal has awarded the compensation in favour of the claimant in M.V.C.No.1945/2010 under the following heads:
Sl. Heads of Compensation Amount of
No. compensation
1. Pain suffering, loss of Rs.60,000/-
amenities and future
unhappiness
2. Medical expenses Rs.1,00,000/-
including nourishment,
Attendant and conveyance
charges etc.,
3. Loss of future earning Rs.1,51,200/-
capacity
4. Future medical expenses Rs.25,000/-
Total Rs.3,36,200/-
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27. The doctor has assessed 50% disability to the whole body. The Tribunal has assessed the disability at 35%.
28. The claimant in M.V.C.No.1946/2010 has suffered the following injuries:
1. Small abrasions over right palm and right leg.
2. Suspected fracture of metacarpal right
3. Suspected fracture of the right hand.
29. The Tribunal has awarded the compensation in favour of the claimant in M.V.C.No.1946/2010 under the following heads.
Sl. Heads of Compensation Amount of
No. compensation
1. Pain suffering, loss of Rs.40,000/-
amenities and future
unhappiness
2. Medical expenses Rs.60,000/-
including nourishment,
Attendant and conveyance
charges etc.,
3. Future medical expenses Rs.15,000/-
Total Rs.1,15,000/-
30. The doctor has assessed 10% disability to the right leg of the claimant and the percentage of the disability to the whole body is less than 10%.
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Regarding compensation in MFA 10796/2011.
31. As far as the claimant in MVC 1945/2011 is concerned, it is borne out from the records that he was inpatient for 45 days. He suffered right and left shoulder dislocations and a fracture of his left leg. Tribunal has held that the claimant has suffered 35% permanent disability. Tribunal has assessed the income at Rs.3000=00 per month as against the claim of Rs.2,00,000=00 per annum. No proof is produced relating to his claim as a contractor. The RTC is produced to show that the claimant owned agricultural land. Since the accident is of the year 2010, based on the chart prepared by the Karnataka State Legal services authority, this Court is of the view that 4000=00 per month was the income of the claimant in the year 2010. He was aged 48. Twenty Five percent is to be added towards future prospects. The multiplier would be 13 as per the decision of the Apex Court in the case of Sarla Verma.
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32. Thus the loss of income would be Rs.4000+25 per cent (future prospects) x 12 months x 13 multiplier x 35% disability. Same comes to Rs.2,73,000=00 as against Rs.1,51,000=00 awarded by the tribunal.
33. Compensation of Rs.60,000=00 is awarded under the head of loss of amenities, pain and suffering. Because the claimant suffered both shoulders' dislocation and a fracture of his leg, this Court deems it appropriate to award Rs.60,000=00 under the head of pain and suffering and Rs.30,000=00 under the head of loss of amenities in life as the claimant lived for 9 years after the accident with 35% disability.
34. No compensation is awarded under the head of loss of income during the laid-up period. Taking 3 months as laid up period, Rs.12,000=00 is awarded.
35. Hence the compensation payable in MFA no.10796/2011 would be as under:
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Sl. Heads of Compensation Amount of
No. compensation in
Rs.
1. Pain & suffering, 60,000/-
2. Medical expenses 1,00,000/-
including nourishment,
Attendant and conveyance
charges etc.,
3. Loss of future earning 2,73,000/-
capacity
4. Future medical expenses 25,000/-
5. Loss of amenities and 30,000/-
future unhappiness Total
6. Loss of income during the 12000/-
laid-up period
7 Total 4,80,000=00
Regarding compensation in MFA 10795/2011.
36. As far as the claimant in MVC 1946/2011 is concerned, it is borne out from the records that the claimant suffered a fracture of the right tibia and a fracture of the left metacarpal bone. Though the doctor has opined that the claimant has suffered 10% disability to the right leg and less than 10% disability to the whole body, Tribunal has analysed the evidence and concluded that there is no functional disability. As noticed in the table extracted above, the claimant has been awarded Rs.1,15,000=00 under three 25 distinct heads. The judgment and award of the Tribunal in MVC 1946/2010 do not call for any interference.
ORDER
37. Hence the following:
(i) The appeal in MFA No. 10795/2011 filed by the claimant in MVC 1946/2010 on the file of Fast Track court at Hunsur is dismissed.
(ii) The appeal in MFA No. 10796/2011 filed by the legal representatives of the original claimant is allowed in part.
Consequently, the judgment and award passed in MVC No.1945/2010 on the Fast Track court at Hunsur are modified. Appellants are entitled to compensation of Rs.4,80,000=00 as against Rs.3,36,200/- awarded by the Tribunal.
(iii) The compensation amount shall carry interest @ 6% p.a. from the date of petition till the date of payment excluding interest for 102 days as per the order of this Court dated 19.02.2014.
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(iv) The award shall be satisfied by the 3rd respondent- insurer.
(iv) The tribunal shall disburse the compensation equally among all the claimants/appellants in MFA 10796/2011.
Sd/-
JUDGE PKN/brn