PREMIER INSURANCE CO Vs. PADMA SRINIVASAN

JUDGEMENT

(1.) The appellant, is an Insurance Company. The appeal is filed against the award made by the Motcr Accidents Claims Tribunal at Bangalore, dated 20th November, 1972 in Mc. (M.V.C.) No. 120 of 1970. The respondent preferred an application under S. 110-A of the Motor Vehicles Act for compensation on account of the death of her husband who died in a motor accident which took place in Bangalore on 5-4-1970. The lorry bearing Reg. No. MYT 3298 insured with the present appellant-Company was involved in the accident. In the Objection Statement filed by the appellant- Company before the Tribunal it was alleged that on a search in the Office of the appellant-Company there was no reference to this lorry being in- sured with the Company, that there must have been some fraud in the matter of having insured this lorry and that otherwise the appellant- Company would have issued a policy if a duplicate of the certificate of insurance had been sent to the Office. The appellant-Company therefore put the petitioner to strict proof of the insurance having been effected by the owner of the lorry with the appellant-Company. It, therefore, denied its liability. On a consideration of the evidence, the Tribunal held that the claimants viz., respondent-1 and her children were entitled to a compensation of Rs. 60,000. It has also held that the liability of the Insurer-the present appellant is limited to Rs. 50,000.

(2.) It is the contention of Mr. Bheemacharya, learned counsel appearing for the appellant-Company, that the liability of the Insurer must be confined to the maximum under S. 95 Cl. (2) of the Motor Vehicles Act, 1939 as it stood prior to its amendment by the Motor Vehicles (Amendment) Act, 1969 (Act No. 56 of 1969). According to the appellant-Company, no policy of insurance had been issued by it. Ext. P. 9 is the certificate of insurance issued by the Agent of the appellant-Company on 31-5-1969. The period covered by that certificate is from 30th June, 1969 to 29th June, 1970. The accident took place on 5-4-1970. Under Act No. 56 of 1969, the word "fifty" was substituted for the word "twenty" in sub-cl. (a) of Cl. (2) of S. 95. The amendment was brought into effect from 2-3-1970. Thus, though the insurance was effected before the amendment of the Act, the accident took place subsequent to the coming into effect of the amendment of S. 95 cl. (2) sub-cl. (a). It is the contention of Mr. Bheemacharya that the said amendment has ro retrospective effect and that the liability must be confined to the one under the Act as it stood before the amendment. The Certificate of Insurance, Ext. P. 9, mentions the liability as the one under Chapter VIII of the Motor Vehicles Act. 1939. Hence, according to the terms of Ext. P. 9, the liability was only to the maximum extent of Rs. 20,000. It is his contention that the Amendment Act does not specifically state that it has retrosoective operation and that therefore it must be construed as having prospective operation only and not to affect the existing contractual rights and obligations.

(3.) It is contended by Mr. Srinath, appearing for the respondent, that the insurer did not urge this plea before the Tribunal. But it is open to the Insurer to urge this question in appeal (See Manjula Devi Bhuta v. Manjusri Raha, 1968 ACC. 1.