KANHAIYALAL Vs. SITABAI

JUDGEMENT

(1.) This appeal is by the claimants for grant of compensation on account of death of Lokesh. Appellants filed claim petition under section 166 of the Motor Vehicles Act in the court of Second Motor Accidents Claims Tribunal, Shivpuri, claiming compensation of Rs. 4,60,000. Deceased Lokesh was son of the appellants. Deceased was driving a vehicle bearing registration No. MP 13-C 2886 on 28.2.1994 under the employment of owner of motor vehicle, Ramdev. Ramdev was also travelling in the said jeep. Jeep met with an accident which resulted in the death of Lokesh and Ramdev. The claimants-appellants are father and mother of the deceased Lokesh. Claims Tribunal after considering the evidence on record has dismissed the claim application holding therein that for the negligence of deceased Lokesh claimants are not entitled for any compensation.

(2.) The counsel for appellants submitted that Claims Tribunal has not considered the amended provisions of Motor Vehicles Act. He submitted that after the amendment in section 163-A of the Motor Vehicles Act it is not necessary to prove negligence of the driver. It is sufficient that driver was under the employment of the owner and the claimants are entitled for compensation. The counsel for respondent submitted that section 163-A is prospective in nature and it is not applicable to present case. He submitted that accident had occurred on 28.2.1994 whereas the Act was amended on 14.11.1994. The counsel for respondent submitted that since the provision was not available on the date of accident, petitioners are not entitled for the benefit of section 163-A of the Act. The counsel for the appellants submitted that on the date of amendment their application was pending, therefore, provisions of section 163-A will be applicable. Only question involved in the case is whether section 163-A of the Act has a retrospective operation or prospective operation. Section 163-A is inserted by Act 54 of 1994 which came into force with effect from 14.11.1994. Section 163-A of the Motor Vehicles Act as inserted by amending Act creates a new right in favour of the claimants and this right is similar to section 140 of the Motor Vehicles Act, 1988. This amendment creates a new liability on the owners of the vehicles and, therefore, it is to be governed by the rule that unless legislature makes it retrospectively operative its operation shall be prospective only.

(3.) Full Bench of this court had considered the scope of amendment in section 140 of the Motor Vehicles Act in the case of Jivra Khan v. Shiv Charan Das, 1999 ACJ 771 (MP). The question was framed and referred to Full Bench: "Whether section 140 of the Motor Vehicles Act of 1988 is retrospective in operation for the reason section 144 thereof expressly says that the provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force?" This court after considering the relevant provisions of the Act held that section 140 of the Motor Vehicles Act is not retrospective and it is further held that the rights and liabilities between the parties arise on the happening of the accident and that would be the date for determining quantum of compensation fixed under the law existing therein. Similar view is taken by another Full Bench of this court in the case of New India Assurance Co. Ltd. v. Nafis Begum, 1991 ACJ 960 (MP). Section 163 A of the Motor Vehicles Act confers a new right upon the claimants. This is a special provision as the payment of compensation is on structured formula basis irrespective of negligence. In this case the owner of motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation as indicated in the Second Schedule, is to be paid to the legal heirs of the victim as the case may be. It is admitted position that when the accident occurred and claim petition was filed, the said provision was not in existence. Appellants have filed an application under section 166 of the Motor Vehicles Act and have also claimed interim compensation under section 140 of the Motor Vehicles Act. The application was allowed and interim compensation was awarded. Section 140 of the Motor Vehicles Act provides for liability to pay compensation in said two cases on principle of no fault. Even if there is no fault or negligence, party is entitled for interim compensation on the ground of no fault. Sub-section (5) of section 140 provides that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163-A. Thus, any compensation paid in any other law shall be reduced while calculating compensation under section 163-A but it is not vice versa. Only question involved in the case is whether section 163-A has a retrospective operation or prospective operation.