NEW INDIA ASSURANCE CO LTD Vs. USHAKUMARI

JUDGEMENT

(1.) This is an appeal preferred against the award passed in O. P. (MV) No. 39 of 1999 of the Motor Accidents Claims Tribunal, Neyyattinkara. The brief facts are as follows: according to the claimant, while he was travelling in a Tempo van bearing registration No. KRA 8608 from east to west and when it reached Amaravila it hit with a lorry bearing registration No. KEV 5353 driven by respondent No. 2 and thereby the petitioner sustained injuries. The petition is filed under section 163-A of the Motor vehicles Act, 1988.

(2.) On the other hand, it is contended by the insurance company that the petition is barred by limitation and the accident took place on account of rash and negligent driving of Tempo van driver and petitioner is not entitled to claim compensation. The learned counsel for the insurance company contended before me that the Motor Acci-dents Claims Tribunal had gone wrong in allowing the application mainly on two grounds. It is submitted that the accident took place in the year 1992, whereas the provisions regarding section 163-A of the motor Vehicles Act came into existence only on 14. 11. 1994 and section 163-A is not having retrospective effect. It is also contended that in order to enable a person to claim compensation under section 163-A of Motor Vehicles Act he has to prove that a death has taken place or there has been permanent disablement or in other words in a case of injury unless claimant is able to satisfy that he has sustained permanent disablement as contemplated under section 142 of Motor Vehicles Act he will not be entitled to get compensation under section 163-A of the Motor Vehicles Act. It is also contended by him that the negligence was also on account of rash driving of the claimant involved in his accident. Since the claim is made under section 163-A, I feel that the question of negligence need not be decided in this case.

(3.) The learned counsel had cited before me a Full Bench decision of Karnataka high Court in Guruanna Vadi v. General manager, Karnataka State Road Trans. Corpn. , 2001 ACJ 1528 (Karnataka). It is held in that decision that section confers substantial rights to the claimants. Compensation received is final and any interim application in section 163-A is prospective and not retrospective. It was a case where the accident took place on 28. 3. 1987. The full Bench found that the section is not having retrospective operation. The court held that every enactment which takes away vested rights under existing laws or creates a new obligation or imposes a new duty or attaches a new disability must be presumed to be intended not to have retrospective effect. Therefore, in the light of this pronouncement I find the claimant was not entitled to file an application under section 163-A of the Motor Vehicles Act.