NEW INDIA ASSURANCE CO LTD Vs. THANKAM

JUDGEMENT

(1.) The only question raised in these appeals is, whether the amount of Rs. 25,000/- fixed under S.140 of the Motor Vehicles Act, 1988 (for short 'the new Act') as "no fault liability" (in case of death resulting in a motor accident) should be paid in respect of a motor accident which took place before the enforcement of the new Act A Division Bench of this Court has answered that question in the affirmative in United India Insurance Co. Ltd. v. Padmavathy ( 1990 (1) KLT 750 - it will be referred to hereinafter as Padmavathy's case). But learned counsel for the appellant - insurance company - made an endeavour to have the said answer reconsidered. Learned counsel invited our attention to the decision of a Division Bench of the Bombay High Court in Prakash Chandumal Khatri v. Suresh Pahilajrai Makhija (1992 A.C.J. 369) in which the decision in Padmavathy's case was considered and dissented from.

(2.) In this batch of cases the accident occurred on 4-5-1988. The new Act came into force only on 1-7-89. Compensation under "no fault liability" was directed to be paid after the new Act came into force at the rate mentioned in S.140 of the new Act. On the date of accident the provision which was in force was S.92A of the Motor Vehicles Act, 1939 (for short 'the old Act') as per which compensation in death cases under "no fault liability" was fixed at Rs.15,000/-. These appeals are in challenge of the award passed by the Motor Accidents Claims Tribunal directing the insurer to pay . the compensation under "no fault liability".

(3.) In Padmavathy's case the Division Bench approached the question from two different angles. First was by considering the effect of repeal of the old Act as provided in S.217 of the new Act. Sub-sec. (1) of the said Section says that the old Act and any law corresponding to that Act in force in any state immediately before the commencement of the new Act in that state would stand repealed. Sub-section (4) provided that the mention of particular matters in S.217 "shall not be held to prejudice or affect the general application of S.6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals." The Division Bench in Padmavathy's case proceeded to consider the effect of S.6 of the General Clauses Act on such repeal of the old Act, particularly with reference to the following words in the Section "unless a different intention appears the repeal shall not ..... affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed". The Bench discussed whether S.140 of the new Act has created a new right by increasing the amount of compensation under no fault liability or whether the new Act has only updated a right created under S.92-A of the old Act.