Mohd. Arshad v. Messrs Naimuddin Nasimuddin And Another

S.B Sinha, J.:— This miscellaneous appeal arises out of a judgment and award dated 26th July, 1983 passed by Sri Om Prakash, Judicial Commissioner, Ranchi in Miscellaneous Judicial Case No. 106 of 1982, whereby and whereunder the application for claim filed by the appellant in terms of Section 110A of the Motor Vehicles Act (hereinafter referred to as ‘the Act’), was dismissed as not maintainable.

2. The facts of the case lie in a very narrow compass. The appellant, who was aged about 26 years, was working as a cleaner on a monthly salary of Rs. 300/- under Messers Naimuddin Nasimuddin, the respondent No. 1 in this appeal. On 16-7-1981 while he was travelling in a bus bearing registration No. ORN 475 in course of his duty met with an accident when the said bus was coming from Rourkela to Ranchi near village Korian Dembo Toli.

3. According to the appellant, while the bus was taking a turn after crossing a culvert a about 7.30 A.M, a truck bearing registration No. BRV 6285 came from the opposite side and collided with the bus on its right side towards the rear portion. According to the appellant the bus fell down and be suffered multiple injuries including fracture of pelvis and partial loss of eye-sight. The appellant was hospitalised on 17-9-1981 and was discharged on 28-10-1981.

4. The appellant stated in his application for claim that by reason of the aforementioned accident, he has become permanently disabled and thus he having been lost his earning capacity, filed the said application claiming compensation under Section 110A of the said Act to the extent of Rs. 50,000/- inter alia on the ground that he was the only earning member of his family consisting of his parents, wife and children.

5. Before the Tribunal below, the employer filed a written statement denying its liability to pay any compensation and in the alternative, it was stated that the bus in question being inured with Oriental Fire and General Insurance Company Limited, the liability, if arty, was that of the said insurer.

6. In the written statement, filed on behalf of the Oriental hire and General Insurance Company Limited, it was stated that there was no act of rashness or negligence on the part of the driver in driving the bus in question and such, the insurer is not liable to pay any compensation.

7. On the aforementioned pleadings of the parties, the learned Tribunal below formulated 3 issues for determination which reads as follows:—

“(i) Whether the application under Section 110A of the M.V Act is maintainable?

(ii) Is the claimant entitled to receive any compensation? If so, to what extent and from whom?

(iii) Whether the claimant is entitled to any relief? If so, to what relief?

8. The learned Tribunal below held that in the instant case, the claimant did not allege any negligence on the part of the driver of the bus bearing registration No. ORN 475 and in fact, in his evidence exonerated the said driver and put the entire blame upon the driver of the truck in question.

9. On the basis of the aforementioned admission on the part of the appellant, the learned. Tribunal below held that no negligence having been proved on the part of the driver of the bus in question, the said application was not maintainable.

10. The learned Tribunal below, in this connection has relied upon a decision of a Full Bench of Madhya Pradesh High Court in Mangilal v. Parasram, [reported in AIR 1971 MP ???], wherein it was held that before compensation can be awarded to the claimant against the insurer, there must be a finding of negligence on the part of insured so as to make him as also the insurer liable in torts.

11. He further relied on in the case of Mangilal v. Parasram [reported in 1970 ACJ 86] and in the case of Jaswant Rai v. National Transport and General Co. Ltd. [reported in 1972 ACJ 21 as also in 1969 ACJ 327].

12. The learned Tribunal below also negatived the plea raised on behalf of the appellant to the effect that as in terms of the provisions of the said Act, an employee was entitled to file a claim for compensation both under the Workmen Compensation Act as also the Motor Vehicles Act, it was not necessary for him to prove any negligence.

13. Mr. M.Y Eqbal, learned counsel appearing on behalf of the appellant submitted that in view of the phraseology used in Section 110A of the said Act, it is not necessary for a claimant to prove negligence on the part of a claimant. The learned counsel submitted that the principles of torts are not applicable in such a case, as there is nothing in Chapter VIII of the Motor Vehicles Act to show that proof of negligence is a sin-qua-non for maintaining a claim for compensation and thus the learned Court below must be held to have misdirected itself in not allowing the application of claim filed on behalf of the appellant.

14. The learned counsel, in this connection, placed strong reliance in the case of Sheikhupura Transport Co. Ltd. v. Northern India Transport Insurance Co.† [reported in (1971) 1 SCC 785 : AIR 1971 SC 1624], in the case of Marine and General Insurance Co. Ltd. v. Balkriahna Ramchandra Nayan, reported in AIR 1977 Bom. 53] in the case of Bishan Devi v. Sirhaksh Singh [reported in (1980) 1 SCC 273 : AIR 1979 SC 1862] and in the case of Gujrat State Road Transport Corporation, Ahmedahad v. Ramanbhai Prabhatbhai [reported in (1987) 4 SCC 99 : AIR 1987 SC 1960].

15. The learned counsel further brought to my notice that in the last mentioned case, the Supreme Court held that its earlier judgment rendered in the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan [reported in (1977) 2 SCC 441 : AIR 1977 SC 1248], wherein a contrary view was taken, was merely on obiter.

16. The learned counsel further submitted that in view of the fact that the appellant could have filed an application for claim before the competent authority under the Workmen Compensation Act is also a clear pointer to the fact that as the claimant could elect his forum, the same standard of proof is necessary for proving his claim even before a Tribunal constituted under the said Act.

17. The learned counsel, in this connection has relied upon a decision in the case of Kanoria Overseas Corporation v. Damayanti Vyas [reported in 1982 ACJ 222], in the case of Trading Engineering, New Delhi v. Nirmala Devi, [reported in 1980 ACJ 230] and in the case of Oriental Fire and General Insurance Co. Ltd. v. Ram Sunder Dubey, [reported in 1983 TAC 182].

18. Mr. V Shivnath, learned counsel appearing on behalf of the respondents, on the other hand, submitted that it is now a settled law that proof of negligence is a sin-qua-non for maintaining an application for compensation under Section 110A of the said Act. The learned counsel submitted that general principles of torts are applicable in the facts and circumstances of this case and thus the said claim petition was rightly dismissed by the learned Tribunal below.

19. Learned counsel, in this connection, has relied upon the decision of the Madhya Pradesh High Court in the case of Mangilal v. Parasram, [reported in AIR 1971 MP 5], in the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan, [reported in (1977) 2 SCC 441 : AIR 1977 SC 1248], in the case of Pushpabai Parshottam Udeshi and others v. Ranjit Ginning and Pressing Co. Ltd. and another, [reported in (1977) 2 SCC 745 : AIR 1977 SC 1735] and in the case of Andhra Pradesh State Road Transport Corporation, Hyderabad v. Dodda Somayajulu, [reported in AIR 1982 AP 436].

20. In view of the rival contentions of the parties, as noticed hereinbefore, the point that arises for consideration is as to whether a proof of negligence is necessary for maintaining an application for claim under the said Act.

21. Section 110 of the Motor Vehicles Act reads as follows:

“110. Claims Tribunals.—(1) A State Government may, by notification in the official Gazette constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as claims tribunals) for such area as may he specified in the notification for the purpose of the adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily to, injury persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both:

Provided that where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his opinion, refer the claim to a civil court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim.

Explanation.—For removal of doubts, it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles” includesc laims for compensation under Section 92-A.

(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.

(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he—

(a) is, or has been, a Judge of a High Court; or

(b) is, or has been, a District Judge; or

(c) is qualified for appointment as a Judge of the High Court.

(4) Where two or more, Claims Tribunals are constituted for any area, the State Government may, by general or special order, regulate the distribution of business among them.

22. True it is that the said provision does not expressly state the applicability of proof of negligence in order to enable a tribunal to determine an amount of compensation payable to a victim and/or his dependant in case of death or bodily injury or demages to property which might have occasioned by reason of use of a motor vehicle.

23. A Division Bench decision of the Bombay High Court in Marine General Company Limited (supra) upon construction of the provisions of Section 110 and other relevant provisions of Chapter VIII of the Motor Vehicles Act held that it is not necessary to prove any negligence on the part of the claimant. In the said decision, the Bombay High Court expressly dissented from the views of the Full Bench of the Madhya Pradesh High Court in Mangilal v. Parasram and others case (supra) and held that Section 110 to 110-F of the said Act not only contain procedural matter, but also contains substantive provision of law, whereby and whereunder the general principles of tort have been excluded.

24. Vaidya, J. speaking for the Bench states thus:—

“The time has now come when instead of involving the insurance company, which now, so far as this country is concerned, is in the public sector, and the citizens injured in automobile accidents, in costly and lengthy litigation, what is needed is a sure position in law. There is generally prolonged litigation in such cases. In the absence of any words used by the legislature to underpin the liability as a liability with respect to negligence or any other specific tort or tort generally that liability must be held to in respect of injuries one caused as a result of the “use” of motor vehicle unless there is some reason recognised by law for exempting the user from that liability.

It is true that there are cross-current of thoughts in the matter. Even in England judges have taken different views with regard to the necessity for proof of fault in actions for personal injuries caused by accidents. Salmond's Law of Torts has summed up this discussion with the following words:—

“It is reasonable to conclude that there is still room for the law of torts. Basic cover against disasters may be provided by national insurance, but there is a popular feeling that those who have intentionally or carelessly caused harm to others should pay for the manage which they have caused. Tort law is concerned not only with cash, but also with appeasement, justice and fairness. Experience with industrial accidents shows that social welfare and common law damages may welt co-exist. Perhaps tons should not be abolished, but amended and supplemented, it can deal better than insurance with property damage and mental suffering, and can also provide for the restoration of earnings above the minimal level. For statutory benefits have the disadvantage that they are not in any way related to the loss suffered, as common law compensation is however, inadequately. There is room for much more inquiry as to the relationship between the law of torts and the welfare state. The whole problem of alternative remedies needs to be re-examined.”

In the light of this fundamental and basic nature of the law of torts, I am of the view that whether we apply the law of torts or not, the liablility to pay ‘just’ compensation arises when the injuries are caused by the use of the motor vehicle. The Tribunal has power to determine what is ‘just’ compensation irrespective of whether the defendant was at fault or was negligent or careless or not. When a person is injured by use of a vehicle, that itself is an infringement of a right. That person must, therefore, have a remedy of recovering compensation from the person whose vehicle has caused injury. That, according to me, is the scheme of the provisions contained in Section 110 to 110-F of the Motor Vehicles Act. Principles of law of negligence were relevant for determining the quantum of damages and the person liable to pay it like any other principle to the followed in the administration of justice.”

25. The Supreme Court in Sheikhpura Transport Company Limited's case (supra) did not decide the question as to whether the proof of negligence is a sin-qua-non for entertainment of a claim application filed by the Accidents Claim Tribunal.

26. On the other hand, the Supreme Court in the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan [reported in (1977) 2 SCC 441 : AIR 1977 SC 1248], expressly over-ruled the decision of the Andhra Pradesh High Court, Haji Zukaria v. Naoshir Cama [reported in AIR 1976 AP 171] and reversed the reasonings of the Bombay High Court in Marine and General Insurance Co. Ltd. v. Balkrishna Ramchandra Nayan [AIR 1977 Bom 53] aforementioned.

27. True it is that this decision has been held to be an ‘obiter’ in Gujrat State Road Transport Corporation's case [reported in AIR 1987 SC 1960].

28. However, in that decision the Supreme Court did not take into consideration those earlier decisions of the Supreme Court in the case of Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. Pvt. Ltd. [reported in (1977) 2 SCC 745 : AIR 1977 SC 1735] as also the case of Bishan Devi v. Sirbaksh Singh [reported in (1980) 1 SCC 273 : AIR 1979 SC 1862].

29. Before embarking upon a discussion on the vexed question, notice must be taken of the development of law, in this regard.

30. Motor Vehicles Act, 1939 was enacted to consolidate and amend the law relating to motor vehicles. The said Act is a self-contained Code.

31. Section 110 to 113-F of the said Act were intoroduced in the year 1956 by Act No. 100 of 1956 with effect from 16-2-1956.

32. It has been held in several decisions that upon the constitution of a tribunal in terms of section 110 of the said Act, the jurisdiction of the Civil Court becomes barred in terms of the provisions contained in Section 110 to 110-F thereof as a complete machinery has been evolved in order to grant compensation in respect of bodily injury suffered or a death of a person or for damages caused to the property arising out of use to motor vehicles. [See (1975) 2 SCC 840 : AIR 1976 SC 237].

33. Proviso to Section 110, however, enables a claimant to get his claim referred to a civil court wherein a sum more than Rs. 2000/- is claimed by way of compensation in respect of damage to the property.

34. Prior to coming into force of Amending Act of 1956, such a claim of compensation could be filed only in a Civil Court. In a suit filed before a Civil Court claiming damages owing to the death or bodily injury to a person arising out of an accident of a motor vehicle, the plaintiff was bound to prove a tortuous act on the part of the driver. By reason of the provisions contained in Sections 110A to 110F of the said Act, the Parliament did Dot create any new right upon a person who has suffered losses by reason of an accident, nor created any statutory liability upon the driver or owner of the vehicle and/or the Insurance Company which was not prevailing under the common law of torts.

35. Prior to coming into force of the Motor Vehicles (Amendment) Act, 1956, compensation in respect of a death of a person arising out of an accident could be claimed under the Fatal Accident Acts or under the Workmen Compensation Act.

36. The Parliament in its wisdom made the owner of a motor vehicle, statutory reliable to enter into a contract of insurance so that in case an award is made against him, he may be indemnified by the insurer to the extent of its statutory liability as also in order to enable the claimant to realise the fruit of the award from the Insurer directly.

37. Section 110C(1) confers power on a Claims Tribunal to prevent an abuse of the insurance policy taken by the owners by permitting the insurance companies to take over the defence of the owner when there is a dispute between the claimant and the owners and contest the claim on all or any on the grounds that are available to the owners against whom the claim has been made.

38. Section 110D provides for the right of appeal to the High Court against an award of the Claims Tribunal.

39. The Courts in India, having found the difficulties faced by a claimant in prosecuting a claim for compensation and/or rigours of proof of negligence had all along been expressing pious wishes and observations calling upon the Parliament to suitably amend the law so as to lessen the rigours of burden of proof for the purpose of embracing within its fold a case where compensation can be awarded to a victim of an accident for no fault of the driver of the vehicle in question.

40. The Courts in India also found that in a case of hit and run, it was not possible for a person who has suffered bodily injury or to the dependants of a deceased to claim any amount of compensation before the Claims Tribunal.

41. In order to meet its social obligations and in answer to the call of the Courts rendered in various decisions; the Parliament brought in Chapter VII-A as also inserted Sections 109A to 109C for grant of such reliefs by reason of the Motor Vehicles (Amendment) Act, 1982 (Act No. 47/82).

42. It is true that there is no indication under Sections 110, 110A, 110B and 110C of the Motor Vehicles Act that compensation can be awarded by the Claims Tribunal only when negligence on the part of the driver of the vehicle concerned is established, but the said provisions do not lay down any criteria for awarding a compensation nor do they, as noticed hereinbefore, establish any new right in favour of the claimant.

43. As noticed hereinbefore, in terms of the provisions of the aforementioned Act, merely an alternative forum has been created whereby speedy disposal of the claim cases were expected in lieu of a suit in a Civil Court.

44. In construing the provisions of Sections 110A to 110F of the said Act, it must be borne in mind that different criterias have not been laid down for awarding compensation arising out of tan accident involving death or bodily injury of a person on the one hand and damage to the property on the other. A compensation is payable on both grounds, if any damage is occasioned by use of the motor vehicle. However, proviso to Section 110 makes the position absolutely clear that the jurisdiction of the Civil Court is not excluded in the matter of a claim for compensation, if such a claim exceeds a sum of Rs. 2000/- in a case where damages have been caused to the properties of the claimant.

45. Thus, it would given rise to incongruous situation as whereas in a suit, if it is tried by Civil Court in respect of damage caused to the properties, negligence on the part of the driver of the vehicle has to be proved, but such proof of negligence is not necessary in a case of death or bodily injury of a person.

46. There cannot be any doubt whatsoever that Act No. 47 of 1982 was enacted to supress the said mischief and thereby a different treatment altogether has been meeted to the claimants whose case falls under Chapter VIIA of the said Act.

47. Further, the very fact that the Insurance Company has been made liable to indemnify the owner goes to show that a proof of negligence is a condition precedent for making the Insurance Company liable to pay the amount of compensation on behalf of the owner to the extent or its statutory liability, if any.

48. The Parliament is presumed to know the law existing at the time of enacting a statute. If it wanted to make any departure in relation to entertainment of a claim without the proof of negligence and without taking recourse of the general law of torts, it could have said so in unmistakable terms-while enacting the amending Act of 1956.

49. Section 110, as noticed hereinbefore, empowers a Motor Accident Claims Tribunal to entertain a claim of compensation but the said provision does not deal with the question as to who is to be held liable and in what circumstances, damages caused or any bodily injury sustaining, resulting from an accident.

50. The Supreme Court in the case of Pushpabai Parsottam Udeshi v. Ranjit Ginning and Pressing Co. Ltd. [reported in (1977) 2 SCC 745 : AIR 1977 SC 1735] held that negligence has to be pleaded and proved but in a given case, equity may demand that the doctrine of “res-ipsa locuitor” should be invoked.

51. Negligence in any form whatsoever is the basis for award of damages under the law of torts. A person becomes liable for damages to the other only when some loss, injury or damages is caused to the later by reason of any act of ommission or commission on the part of the former or his authorised agent or employee.

52. Thus, to do what is forbidden or not to do what a person is liable to do, is the basis for awarding damages against him.

53. Till there had been a statutory exclusion of the aforementioned rule by insertion of Chapter VIIA of the Motor Vehicles Act and formation of scheme in terms of Sections 109A to 109C thereof, the general law of torts were thus applicable.

54. This aspect of the matter has been highlighted by the Supreme Court in Bishan Devi v. Sirbaksh Singh [reported in (1980) 1 SCC 273 : AIR 1979 SC 1862]. In the said decision the Supreme Court expressed its anguish that despite repeated observations by Courts of law, the law was not amended by the Parliament. This is evident from the following observations of the Supreme Court:

“The instant case brings into focus the difficulties experienced by dependants in obtaining relief before the Motor Accidents Claims Tribunal. The victim in this case Bhagwan Das was run over by a motor vehicle on the night between 8th July, 1961 leaving behind him his wife Bishan Devi and four minor children. For eighteen long years they have been before Courts asking for some compensation for the death of their bread-winer due to rash and negligent driving of a motor vehicle.

One is tempted to remark that they would have been better off but for their hope of getting some relief in Courts. They not only had to spend their time in Courts but to borrow to fight for their rights. It is common knowledge that such helpless and desperate condition is exploited by unscrupulous persons who manage to get away with the bulk of the compensation money if and when the claimants succeed in getting it.”

55. Having expressed its anguish thus, the Supreme Court stated the law in the following term:

“The law as it stands requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving. The burden thus placed is very heavy and difficult to discharge by the claimant. The records of police investigation are not made available to the Tribunal. The officers who investigated the accident are seldom available to give evidence before the Claims Tribunal and assist in coming to a proper conclusion. The insurance company in quite a few cases, as in the present one, takes an unreasonable stand and raises all sorts of untenable pleas just to thwart relief to the dependants. In many of the claims it turns out to be beyond the capacity of the claimant to maintain his claim in a Court of law.”

56. The law, as is evident, requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving. Having stated the law thus. The Supreme Court again reiterated the difficulties faced by the claimant in discharging its burden of proof.

57. The Supreme Court, thereafter, took into consideration various other decisions on the point but despite the same held as follows:—

“Unless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer and give effect to the law as it exists today”

(Under lining is mine)

58. The Supreme Court, thereafter expressed the hope that some reliefs would be provided for by legislature in amending the law.

59. The decision of the Supreme Court in the case of Bishan Devi, is binding upon this Court.

60. True it is that the Supreme Court in Gujrat State Road Transport Corporation's case [reported in (1987) 4 SCC 99 : AIR 1987 SC 1960] observed that the decision of the Supreme Court in the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan [reported in (1977) 2 SCC 441 : AIR 1977 SC 1248] was obiter.

61. However, upon an analysis of the aforementioned judgment, it would he evident that the Supreme Court itself held that in terms of Section 92A of the Motor Vehicles Act, the claimant is no longer required to plead and establish that the death or permanent disablement in respect of which the claim has been made, was owing to any wrongful act, neglect or default of the owner or owners of the vehicles or vehicle concerned or of any other person.

62. It was held by the Supreme Court to that extent the substantive law of the country stands modified.

(underlining is mine).

63. The Supreme Court also took into consideration the effect of Section 92A of the said Act and made observations in the following terms:—

“It is thus seen that to a limited extent relief has been granted under Section 92-A of the Act to the legal representatives of the victims who have died on account of motor vehicles accidents Now they can claim Rs. 15,000/- without proof of any negligence on the part of the owner of the vehicle or of any other person. This part of the Act is clearly a departure from the usual common by principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent bisablement caused on account of a motor vehicle accident.’

(Underlining is mine)

64. Thus, there is absolutely no doubt that the Supreme Court while interpreting the provisions of the said Act, came to the conclusion that the claim ants have been granted the relief to the extent that it is not necessary for him to prove negligence in view of Section 92A of the Act. This decision of the Supreme Court in Gujrat State Road Transport Corporation's case, therefore, is of no assistance for the purpose of construe ton of Sections 110 to 110F of the Motor Vehicles Act.

65. In any event, the Supreme Court having not noticed its earlier Division Bench decisions in the case of Pushpabai Parshottam Udeshi v. Ranjit Ginning and Pressing Co. Pvt. Ltd. [reported in (1977) 2 SCC 745 : AIR 1977 SC 1735] and the case of Bishan Devi v. Sirbaksh Singh [reported in (1980) 1 SCC 273 : AIR 1979 SC 1862], this Court is bound to follow the earlier Division Bench decisions in preference to the later Division Bench decision of the Supreme Court.

66. As, it is now well-known that if there is any conflict in the decisions of two Division Benches of the Supreme Court, the earlier decision shall prevail.

67. In the case of Pushpabai Parshottam Udeshi (supra) as also in the case of Bishan Devi (supra), the Supreme Court decided the law involved in the said case specifically which arose for consideration therein.

68. Reference in this connection may be made to Jaiswal Medical Hall v. Union of India [reported in 1988 PLJR 243] and Oriental Fire and General Insurance Co. v. Smt. Panapati Devi [reported in AIR 1989 Patna 183].

69. Further, in my opinion, as the Supreme Court itself in the Gujrat State Road Transport Corporation's case held that the law has undergone a change by reason of the amending Act, 1982, it must be held that law as stood prior to coming into force of the said amendment Act, the decisions of the Supreme Court which interpreted the law, as it then existed, must prevail.

70. However, the matter thus rest there. It is now well-known that appeal is a continuation of suit. In this view of the matter, the present appeal must be held to be a continuation of claim petition filed by the appellant.

71. In the case of Mithilesh Kumari v. Prem Bihari Khan [reported in (1989) II SCC 95], it has been held that the appeal being a continuation of the suit, the Court can take into consideration the changes effected by a subsequent legislation. Although, not so specifically stated in the decision of the Supreme Court in Gujrat State Road Transport Corporation's case [reported in (1987) 4 SCC 99 : AIR 1987 SC 1960], but the said decision also is a pointer of the aforementioned fact. However, taking into consideration the social philosophy and public policy involved in Motor Vehicles (Amendment) Act, 1982, it may be held that the said Amending Act is retrospective in its operation.

72. The question which however arises for consideration is as to whether the provision of Section 92A of the Motor Vehicles Act, as amended in the year 1982 has retrospective operation or not.

73. Section 92A of the Motor Vehicles Act reads as follows:—

“Liability to pay compensation in certain cases on the principle of no fault.—(1) Where the death or permanent disablement of any person has resulted from an ancient arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles shall jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.

(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifteen thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any personal shall be a fixed sum of seven thousand five hundred rupees.

(3) In any claim for compensation under sub-section (1) the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful Act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.

(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the persons in respect of whose death or permanent disablement the claim has been made nor shall be quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such or permanent disablement.

74. Section 92-C of the said Act which is material for the purpose of this, reads as follows:—

“Permanent disablement.—For the purposes of this chapter permanent disablement of a person shall be deemed to have resulted from an ancident of the nature referred to in sub-section (1) of Section 92-A if such person has suffered by reason of accident an injury or injuries involving—

(a) Permanent privation of the sight of either eye or hearing of either can or privation of any member or joint; or

(b) destruction or permanent impairing of the powers of any member or joint; or

(c) Permanent disfiguration of the head or fact.”

75. Section 92B provides that right to claim for compensation for death or permanent disablement shall be any advantage to any right to a claim for compensation in respect thereof under another such provision of this Act or another law for the time being in force.

76. This part of the Act has thus to be held to be in clear departure from the usual common law principles that a proof of negligence on the part of the owner or driver of the motor vehicle is a pre-condition for claiming compensation for the death or permanent disablement caused to the person on account of use of a motor vehicle and to that extent the substantial law of the country stands modified.

77. It is now well-known that the provisions were introduced in view of the judicial views expressed from time to time having regard to the difficulties of the claimants in securing adequate evidence to prove negligence and the nature and the circumstances in which road accident occurred.

78. Reference in this connection may be made to in Cunningham v. Harrison, [reported in 1974 ACJ 219] and State Of Haryana v. Darshana Devi (Smt) & Others, [reported in 1979 ACJ 205].

79. In the case of Bisan Devi v. Sirbakash Singh, [reported in (1980) 1 SCC 273 : AIR 1979 SC 1862], the Supreme Court again made similar observations and quoted with approval various other decisions wherein such observations were made.

80. The Court in the case of Concord of India Insurance Company Limited v. Nirmala Devi, [reported in 1980 ACJ 55], emphasised the need of payment of some compensation in the case of death or permanent disablement of a person arising out of use of a motor vehicle where negligent act/fault on the part of the driver of a motor vehicle or more than one vehicle cannot be proved in the following terms:

“The statement of objects and reasons of the Amendment Act clearly indicates that it was to remove the evil and mischief referred to above that the new provision was enacted. The incidence of road accidents by motor vehicles had reached serious proportions and the victim of the accidents are generally pedestrians belonging to the less affluent sections of society and the provisions of the Act as to compensation in respect of accidents could be availed of only in cases of accidents which could be proved to have taken place as a result of a wrongful act or negligence on the part of the owners or drivers of the vehicles. In the statement of objects and reasons it is stated as follows:

“Having regard to the nature of circumstances in which road accidents take place, in a number of cases, it is difficult to secure adequate evidence to prove negligence. Further, in what are known as ‘hit-and-run’ accidents, by reason of the identity of the vehicle involved in the accident not being known, the persons affected cannot prefer any claims for compensation. It is, therefore, considered necessary to amend the Act suitably to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions first for compensation without proof of fault or negligence on the part of the owner or driver of the vehicle and, secondly, for compensation by way of solatium in cases in which the identity of the vehicle causing an accident is unknown.”

81. The statements of objects and reasons of the aforementioned Act, 1982 show that the amendment in the said Act was introduced taking into consideration, such motor vehicle accidents wherein victim thereof are general pedestrian belonging to the less affluent section of the society. It was further stated therein that having regard to the nature of circumstances in which road accidents take place in a number of cases adequate evidence to prove negligence is difficult to be found. It was, therefore, considered necessary to amend the said Act suitably by way of enforcement of road safety measure and to make such measures of social justices suitable, provisions were made for first payment of compensation without prove or fault or negligence on the part of the owner or driver of the vehicle and for compensation by way of solatium in the cases in which the identity of vehicles causing accident is unknown.

82. True it is that statement of objects and reasons cannot be taken into consideration for the purpose of interpretation of the statute. However, the same can be looked into for considering the history of the legislation and thereby to know the object and purport thereof.

83. Francis Bennton in his Statutory Interpretation observed “the statement of law on the subject in Maxwell on the Interpretation of Statutes in the following emphatic term i.e

“Its a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implications, and although his statement has received frequent judicial approval; it is however too dognatically framed and describes as a rule what is really no more than a presumption which in the instant case, may be outweighed by other factors”.

84. In Section 115 of said treaties, the learned Author states thus:—

“The guides to legislative intention consist of various rules, principles, presumptions and linguistic canons applied at common law or laid down by statute for assisting in statutory interpretation. In this Code they are collectively referred to as the guides to legislative intention or the interpretative criteria”.

85. By reason of the provision of the aforementioned amending Act of 1982 which has been enacted as a measure of social justice, the same was meant to subserve the public good.

86. In Section 227, the learned author states:

“It is the basic principle of legal policy that law should serve is public interest. The Court, when considering in relation to the facts of the instant case, which of the opposing construction of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle, it should therefore strive to avoid adopting a construction which is in any way adverse to the public interest”.

87. In Nothman v. London Borough of Barnet (reported in 1979 Vol. 1, All England Law Reports page 142 at page 148], it is stated that Parliament is presumed to act reasonably. Similar view has been taken in Williams and Glyn's Bank Ltd. v. Boland, [reported in 1980 (2) All ER 408], where it has been held that justice includes social justices.

88. Reference in this connection may also be made in Mahadeo Oil Mills v. S.D.M Araria, [reported in AIR 1978 Pat 86].

89. In the case of Lingappa Pochanna v. State of Maharashtra, [reported in (1985) 1 SCC 479 : AIR 1985 SC 389], it has been held that conferring special protection to the members of the Scheduled Tribe would be an act of distributive justice.

90. In the case of L.B of Hammorsmith v. Harrisom [reported, in 1981 2. All England Law Reports page 588], the statute in question was applied to a pending action.

91. It is now well-settled that a social welfare legislation may be held to have a retrospective operation.

92. There cannot be any doubt, that Section 92A of the said Act was enacted by way of a social welfare legislation and for the benefit of the victims of a motor vehicle accident.

93. By reason of the provisions contained in Section 110 of the said Act, a person receiving bodily injury or the dependants of a person who died in an accident arising out of the use of a motor vehicle could file a claim petition before the Motor Vehicle Accidents Claim Tribunal in terms of Section 110A thereof.

94. It is true, as has been held earlier that before coming into force of the Motor Vehicles Amendment Act, 1982, it was obligatory on the part of the claimant to prove negligence. However, in a given case, if the principles of res ipsa loquitur is made applicable, in that event the burden of proof that an accident has not occurred owing to the negligence or rash driving on the part of the driver of the motor vehicle concerned, will be upon the driver/owner of the motor vehicles.

95. It is now well-known that even in a case where contributory negligence is pleaded, the onus to prove the same is upon the person who sets up such a plea.

96. The Parliament, therefore, by reason of Section 92A only relieved the claimant to prove negligence on the part of the driver in a limited case.

97. The provision of Section 92A of the Act, for the purpose of its construction, may also be considered from another angle. In order to enable a person for obtaining compensation in terms of Section 92A, the claimant only does not have to prove that the death or permanent disablement occurred owing to any wrongful act, neglect or default of the owner.

98. This is in the realm of law of evidence. In Sodhi Transport Co. v. State of U.P, [reported in (1986) 2 SCC 486 : AIR 1986 SC 1099], it was held that the Parliament has a right to lay down the law with regard to ‘conclusive evidence’.

99. In Imperial Tobacco Ltd. v. Attorney-General [reported in (1979) (2) 592], it was held as follows:—

“The basic principles are not in doubt. The object of all procedural rules is to enable justice to be done between the parties consistently with the public interest. So, the choice between Courts of concurrent jurisdiction must always depend on where and how justice can best be done. Many factors have to be considered but, where the conflict lies between courts of civil and criminal jurisdiction, the most important consideration is the obvious one; Criminal Courts exist to deal with criminal matters, and their procedural rules are designed for that purpose. It is only in those relatively rare cases where the sole issue is one of law that a case can be made for the High Court to assume jurisdiction. This is because, there being no issue of fact, to be determined, trial by jury is otiose, the issue of guilt will be determined by the Judge of the Crown Court on submissions of law, leading inevitably to a formal direction to the jury to acquit or convict, as the case may be The criminal procedure, is no better designed indeed it is often less well adapted than the civil procedure to determine pure question of law. Appeals in either case lie to the same Court. Where issues of law can best be determined, therefore, is essentially a question of convenience in the true sense of that word”.

100. The changes in law which create a bar in the maintainability of the suit or to be, embargo upon a defence being raised has been held by the Court of India to have application also for pending appeals.

101. In A.G v. Vernuzza [reported in 1960 All England Law Reports 97], the law which was brought in force during the pendency of a suit was applied, in a pending proceeding.

102. In Bharat Singh v. Management of New Delhi Tuberculosis Centre, [reported in (1986) 2 SCC 614 : AIR 1986 SC 842], the Supreme Court held that Section 17B applies to an award which was passed prior 21-8-1984, when the said provision came into force and held that the said provision applied to a pending proceeding also.

103. In that case, the Supreme Court held that Section 17B of the Industrial Disputes Act is retrospective in its operation.

104. It was further held that construction of the said provision in a manner, detrimental to workman would lead to defeat its object.

105. It is now well-known that it is not essential that the legislature if it intends to apply statute to a pending proceeding must enact and express so in a provision to that effect.

106. In Smt. Kalawanti v. State of Himachal Pradesh, [reported in AIR 1989 HP 5], a Division Bench of the said Court while awarding an interim compensation for a death of patient owing to the professional negligence of a doctor adopted the same principles as contained in Section 92A of the Motor Vehicles Act, as a reasonable sum by way of an ad interim or interim measure of a palliative nature.

107. In Devji v. Anwarkhan, [reported in AIR 1989 MP 101], a learned single Judge of the Madhya Pradesh High Court enhanced the compensation to Rs. 15,000/- on the analogies of Section 92A of the Motor Vehicles Act, where the tribunal awarded a sum of Rs. 4200/- as compensation to the claimants, in a case where the death occurred in an accident in the year 1977.

108. As indicated hereinbefore, in a case of this nature, the statute even if not held to have any retrospective operation, may operate in a pending litigation inasmuch as, as stated hereinbefore, by reason of the impugned provision merely a change in the law of evidence has been brought in.

109. Reference in case may also be made to in Mithilesh Knmari v. Prem Behari Khare, [reported in (1989) 2 SCC 95], wherein the Supreme Court held that:

110. Benami Transaction (Prohibition) Act, 1988 applies to an appeal pending before the Supreme Court although the cause of action for the suit arose prior to coming into force of the said Act. It was held in the aforementioned case that qualifying or disqualifying statute is retrospective.

111. Further, the said Act contends a non-obstante clause in Section 92E of the said Act.

112. Taking thus the scheme and object of the Act, I am of the view that the provisions of Section 92A of the said Act are applicable in the instant case.

113. In New India Insurance Co. v. Smt. Sharda Devi, [reported in 1988 PLJR 535], I had the occasion to apply Section 92A of the Act in relation to an accident which took place on 2nd July, 1977 i.e prior to come into force the Amendment Act, 1947/82.

114. True it is that in that case the question as to whether Section 92A of the Act should be given retrospective effect or not, was not specifically considered.

115. However, it appears that there is a clearage of opinion amongst different High Courts as to whether the Section 92A of the said Act is retrospective in its operation.

116. The Rajasthan High Court in Yashoda Kumari v. Rajasthan Road Transport Corporation [reported in 1984 ACJ 716], a Division Bench of the Allahabad High Court in Ram Mani Gupta v. Mohammad Ibrahim [reported in 1985 ACJ 476] and Madhya Pradesh High Court in Natwas Transport Co. Pvt. Ltd. v. R.T.O, [reported in AIR 1989 MP 105], held that Section 92A of the Act hive no retrospective effect; whereas the Bombay High Court in Oriental Fire and General Insurance Co. Ltd. v. Shantabai S. Dhum, [reported in 1987 ACJ 198] and a Division bench of the Kerala High Court in P.J Johnson v. Astrofiel Armadorn S.A of Panama, [reported in AIR 1989 Ker. 95] held that Section 92A being a social welfare legislation, the same will have retrospective effect.

117. For the reasons stated hereinbefore, I respectfully agree with the views of Bombay High Court and Kerala High Court respectively and with utmost respect express my inability to subscribe to the views of the Rajasthan, Allahabad and Madhya Pradesh High Courts in the aforementioned cases.

118. In this view of the matter the appeal is allowed in part. It is held that the appellant is entitled to a sum of Rs. 7,500/- in terms of Section 92A of the Act. The said amount shall be payable by the insurer-respondent.

119. In the facts and circumstances of this case, the insurer-respondent shall also bear the costs of this appeal.

Appeal allowed partly.