Document Fragment View

Matching Fragments

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 filed 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, , 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 prior to 1.10.1982, if it can be held that Section 92-A is equally applicable in regard to such accidents.

6. 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 tortious 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).

7. The decisions in Delhi Municipality v. Jagdish , Mandir Sita Ramji v. Governor of Delhi and Farid Ahmed v. 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, 1957 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 5-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 5-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, , 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.