PRAKASH CHANDUMAL KHATRI Vs. SURESH PAHILAJRAI MAKHIJA

JUDGEMENT

(1.) THE short question which falls for determination in this appeal is whether the liability to pay compensation on the principle of no fault as prescribed under Section 140 of the Motor Vehicles Act, 1988 and the amount of compensation prescribed under sub-section (2) of Section 140 is payable in respect of death or permanent disablement which has resulted from an accident which occurred prior to the enactment of Motor Vehicles Act, 1988. The facts giving rise to the filing of the appeal are not in dispute and are required to be briefly stated to appreciate the claim made by the appellants.

(2.) THE respondent No. 1 is the owner of goods truck bearing registration No. MHO 7994 and while driving the same on July I, 1988 knocked down Sanjay - the minor son of the appellants. As a result of the injuries suffered due to the knock, Sanjay expired on the spot. The appellants filed Motor Accident Claim No. 669 of 1988 before the Motor Accidents Claims Tribunal, Thane on 17/12/1988 in accordance with the provisions of Section 110a of the Motor Vehicles Act, 1939. The Act of 1939 was amended by introduction of Section 92a on 1/08/1982. Section 92a, inter alia, provided that where permanent disablement has resulted from an accident arising out of the use of the motor vehicle, then the owner of the vehicle shall be liable to pay compensation. Sub-section (2) of Section 92a provided that the amount of compensation which shall be payable under sub-section (1) shall be a fixed sum of Rs. 15,000. 00 in respect of a death of a person and the fixed sum of Rs. 7,500/ - in respect of permanent disablement. Sub-section (3) of Section 92a provided that the claimant shall not be required to plead and establish that the death or permanent disablement was due to any wrongful act, neglect or default of the owner for demanding compensation under sub-section (1 ). This compensation payable under Section 92a of the Act is known as compensation payable on the principle of no fault. Sub-section (4) of Section 92a makes it clear that the compensation paid under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose permanent disablement the claim has been made. Section 92b provides that the right to claim compensation under Section 92a shall be in addition to any other right to claim compensation. In accordance with the provisions of Section 92a of 1939 Act, the appellants made claim for Rs. 15,000. 00 on 17/12/1988.

(3.) THE Parliament enacted the Motor Vehicles Act, 1988 to consolidate and amend the law relating to motor vehicles and the amended Act came into force from 1/07/1989. The provision for granting compensation on no fault basis was inserted in Chapter X of the Act under the heading "liability without fault in certain cases" and the sections covered by the Chapter are Section 140 to Section 144. These sections are identical to the provisions of Section 92a to Section 92e of the 1939 Act, save and except one important departure contained in sub-section (2) of Section 140. The amount of compensation payable on the principle of 'no fault' in respect of death of a person was increased to Rs. 25,000. 00, while in case of permanent disablement to a sum of Rs. 12,000. 00. Section 217 of 1988 Act provides for 'repeal and savings' and sub-section (1) sets out that the Motor Vehicles Act, 1939 and any law corresponding in that Act in force in any State immediately before the commencement of 1988 Act stands repealed. On enactment of Motor Vechiles Act, 1988, the appellants whose claim for compensation on no fault basis was pending before the Motor Accidents Claims Tribunal filed a fresh application on 25/08/1989 at Ex. 9 claiming compensation of Rs. 25,000. 00 as prescribed under sub-section (2) of Section 140 of 1988 Act. The application was resisted by respondent No. 2 - the Insurance Company by pointing out that the liability to pay compensation under the principle of no fault liability accrued on the date when the accident took place, i. e. on July I, 1988 and the statutory liability was only Rs. 15,000. 00 on that date. The Insurance Compare claimed that the appellants would not be entitled to higher compensation on enactment of subsection (2) of Section 140 of 1988 Act. The contention raised by the Insurance Company found favour with the Tribunal and by order dated 26/07/1990, the respondents were directed to pay jointly and severally only Rs. 15,000, - as compensation on the principle of no fault liability within two weeks and failing which to pay the sum with interest at the rate of 12% per annum from the date of the order till realisation.