JIVRAKHAN PANCHRAM Vs. SHIVCHARANDAS

JUDGEMENT

(1.) This is a reference made by learned single Judge arising out of Motor Vehicles Act, 1988. The following question has been referred by learned single Judge for answer by the Full Bench :

(2.) Brief facts which are necessary for disposal of this reference are -

(3.) Aggrieved by the grant of award, an appeal was preferred before this Court and it was contended that the claimants are only entitled to a sum of Rs. 15,000/- under Section 92-A of the Act of 1939 and not for Rs. 25,000/- under Section 140 of the Act of 1988. It was submitted before the learned single Judge that Section 140 of the Act of 1988 is not retrospective in operation and, therefore, it will not cover the accidents which occurred prior to the Act of 1988. It was contended that by virtue of Section 217 of the Act of 1988, all proceedings pending under the Act of 1939 were saved by the aforesaid provision and it shall be deemed that Act of 1988 was not passed so far as the old proceedings are concerned. Learned single Judge made, reference of cases of Prakash Chandumal Khatri and Anr. v. Suresh Pahilajrai Makhija and Anr., 1992 ACJ 369, National Insurance Co. Ltd. v. Kamlabai and Anr., AIR 1990 MP 354 and Oriental Insurance Company Limited, Haldwani v. Dhanram Singh and Ors., AIR 1990 All. 104. As against this, it was submitted before the learned single Judge that the provisions of the Act of 1988 are retrospective in operation because of Section 144 of the Act of 1988 as it has overriding effect on existing law. Therefore, it was submitted that in view of Section 217 of the Act of 1988, which incorporates Section 6 of the General Clauses Act by reference as provided by sub-section (4) of Section 217, the existing law for the pending proceedings would be the Act of 1939. But the wordings of Section 144 of the Act of 1988 are to the effect that they have overriding effect over every other law including the existing law. Hence, it was contended that Chapter-X bearing Section 144 of the Act of 1988 will have retrospective operation and in support of this reliance was placed on the cases of United India Insurance Co. Ltd., v. Padmavathy and Ors., 1990 ACJ 751 (Kerala), New India Assurance Co. Ltd. v. Thankam, 1995 ACJ 440 (Kerala), Ouseph v. Antony and Ors., 1990 ACJ 57 (Kerala), Kamta Prasad and Anr. v. Jaggan & Co. Ltd. and Anr., 1996 ACJ 57 (Allahabad), M. K. Kunhimohammad v. P. A. Ahmedkutty and Ors., 1987 ACJ 872 (SC) and Oriental Insurance Co. Ltd. v. Ram Chander Dwivedi and Ors., 1991 ACJ 577 (Delhi). In this connection, reference was also made to the decision of this Court in the case of National Insurance Co. Ltd. v. Gangabai and Ors., 1991 ACJ 840, wherein a view was taken that Section 140 of the Act of 1988 is prospective and not retrospective. As against this, another decision of this Court given in the case of National Insurance Co. Ltd. v. Ram Kishore Soni and Ors., 1991 MPLJ 434 = 1991 ACJ 878 was referred to wherein it has been held that Section 140 of the Act of 1988 can be given retrospective operation as it is a social measure. Reference has also been made to a decision of Division Bench of this Court in the case of Govind Das and Anr. v. Yaqub Khan and Ors., 1996 ACJ 414, which has also taken the view that Section 140 of the Act of 1988 is not retrospective in operation. Reference was also made to two decisions of Kerala High Court - One given in the case of United India Insurance Co. Ltd. v. Padmavathy and Ors., 1990 ACJ 751 and New India Assurance Co. Ltd. v. Thankam, 1995 ACJ 440, wherein it has been held that Section 140 of the Act of 1988 is retrospective in operation. Hence, the learned single Judge has held that since the decision given by this Court takes the view that Section 140 of the Act of 1988 is not retrospective in operation, it requires reconsideration and hence he has referred this question for answer by the Full Bench. Learned Single Judge has not taken into consideration the implication of Section 144 of the Act of 1988 read with Section 217 of the said Act.