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The Hindustan Ideal Insurance Co. Ltd. Vs. Ainaparthi Vijayalakshmi and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Insurance
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 134 of 1972
Judge
Reported inAIR1976AP39
ActsMotor Vehicles Act, 1939 - Sections 95(2), 110-A and 110-B
AppellantThe Hindustan Ideal Insurance Co. Ltd.
RespondentAinaparthi Vijayalakshmi and ors.
Appellant AdvocateR. Kondaiah, Adv.
Respondent AdvocateM. Jagannadha Rao, Adv.
Excerpt:
.....provision governed case depends upon date of cause of action - date of cause of action was date of accident and death - insurer liable to pay compensation on date of death - held, enhanced compensation not payable to claimants of deceased. - - 110 of 1968 directing the appellant as well as the owner and the driver of the motor vehicle to pay a sum of rs. kondaiah, the learned counsel for the appellant, contend that the finding of the court below that the accident has resulted on account of the rash and negligent driving of the lorry driver is not correct and in any event the liability of his client as on the date of the accident, can at best be only rs. , speaking for the court, rules thus :it is perfectly true as stated therein that whenever an amended act has to be applied..........lorry slowly and blowing the horn the horse of the jatka got dazed and turned towards left and the jatka driver became panicky and could not control the horse and therefore the accident took place, but not on account of any rash and negligent driving of the lorry. as the accident took place due to the fault of the jatka driver no compensation need be paid.the appellant also took the stand that the road at the place of the accident was sloppy and narrow and the accident had taken place not due to the rah and negligent driving of the lorry driver but on account of the jatka driver becoming panicky and moving the jatka towards right and hence no compensation need be paid.3. the claimants examined the first petitioner as p.w. 3 and the brother of the deceased, rajagopala rao, who was.....
Judgment:

Kondaiah, J.

1. This Civil Miscellaneous Appeal by the appellant Insurance Company is directed against the award passed by the Motor Accidents Claims Tribunal (District Judge, West Godavari, Eluru) in Original Petition No. 110 of 1968 directing the appellant as well as the owner and the driver of the motor vehicle to pay a sum of Rs.22,000/- to the petitioner-claimants towards compensation for the death of one Visweswara Rao.

2. The material facts leading to this appeal may briefly be stated. At about 2.30 P.M. on 25-8-1968 on A. Visweswara Rao accompanied by his wife Vijayalakshmi, and his brother Rajagopala Rao, was travelling in the Jatka of Somireddy from Maruteru to Penugondas. When they just came near Maruternu a lorry bearing No. A.P.K. 7269 belonging to one K. Subbarao and driven by Md. Afuzza dashed against the Jatka as a result of which the said Visweswara Rao received a serious head injury and died at about 7.30 p.m. on the same day in the Government Hospital, Tanuku. The aforesaid lorry, which was involved in the accident, was insured with the appellant which was added as a third respondent before the Tribunal.

The first petitioner is the wife and the petitioners Nos. 2 to 4 are the sons and the 5th petitioner is the daughter of the deceased Visweswara Rao who was working at the time of his death as a Sub-Head in the South Central Railway on a salary of Rs. 475.80 per mensem. Admittedly, the respondents 1 to 5 herein and the applicants before the Tribunal are the only legal representatives of the deceased Visweswara Rao. They filed an application under Section 110A of the Motor Vehicles Act (hereinafter referred to as 'the Act') claiming compensation of Rs.50,000/- towards general damages under the head 'compensation' for the loss of earning person, namely, Visweswara Rao, who was the head of the family. The owner and driver of the vehicle and the insurer have been made, before the Tribunal, as respondents 1 to 3 respectively.

The first respondent denied his liability as, according to him, he did not know personally anything and he was at Khammam at the time of the accident. On inquiries he came to know that the accident took place on account of the negligence and inability of the Jatka drive, but not due to rash and negligent driving of his driver. The second respondent driver, admitting that he was driving the lorry at the relevant time, states that in spite of his driving the lorry slowly and blowing the horn the horse of the Jatka got dazed and turned towards left and the Jatka driver became panicky and could not control the horse and therefore the accident took place, but not on account of any rash and negligent driving of the lorry. As the accident took place due to the fault of the jatka driver no compensation need be paid.

The appellant also took the stand that the road at the place of the accident was sloppy and narrow and the accident had taken place not due to the rah and negligent driving of the lorry driver but on account of the jatka driver becoming panicky and moving the jatka towards right and hence no compensation need be paid.

3. The claimants examined the first petitioner as P.W. 3 and the brother of the deceased, Rajagopala Rao, who was accompanying the deceased at the time of the accident as P.W. 4, the driver of the Jatka, P. Somireddi, as P.W. 6 and a passerby called Gudimetla Bulliraju as P.W. 7 in support of their plea that the accident took place on account of the rash and negligent driving of the lorry driver and not due to the jatka driver becoming panicky. P.W. 1 is the Civil Assistant Surgeon at Tanuka hospital who conducted the post-mortem on the dead body of the deceased and gave the wound certificate. Ex. A-1 and the post-mortem certificate. Ex. A-2 She also examined the Jatka driver and found him injured and gave Ex. A-3 would certificate to him. She also examined P.Ws. 3 and 4 who were also injured and issued them the wound certificates. Exs. A-4 and A-5 respectively.

P.W. 2 is a photographer who has taken the photo. Ex. A-6 relating to the scene of offence. Ex. A-8 is a letter from the Senior Accounts Officer, Secunderabad, evidencing the salalry of the deceased as Rs.475.80 per month at the time of the accident and his age as forty four years. The respondents examined the lorry driver as R.W. 1 in support of their defence. The tribunal, accepting the evidence adduced on behalf of the claimants, came to the conclusion that the accident took place on account of the rash and negligent driving by R.W. 1 but not due to the negligence or mistake of the Jatka driver. Reliance also was placed on the finding of the Court of the Additional Judicial First Class Magistrate, Tanuka in its judgment in C.C. No. 3154 of 1968 dated 25-8-1968, that the driver was guilty of rash and negligent driving punishable under Section 304-A of the Indian Penal Code. The Magistrate has also sentenced the driver to one year rigorous imprisonment. The judgment in that calendar case has been exhibited as Ex. A-13 and the mediators' report attested by one of the panch witnesses, P.W. 5 is marked as Ex. A-14.

4. With regard to the quantum of compensation, the Tribunal was of the view that the deceased who was aged forty-four years at the time of the accident would have continued in service for a further period of eleven years, if he had survived, and that he cold have spent two-fifths of the salary for himself and the other three-fifths for the family. On that basis he found that for each year he could have spent Rs. 3060.00 on his family and calcuating the same for a period of eleven years a figure of Rs. 33,660/- was arrived at. But, however, taking into consideration the lump sum payment and also uncertainties in life it was reduced to Rs. 26,928/- after deducting 20% for the lump sum payment and uncertainties in life. The figure Rs.26,928/- was rounded off to Rs. 27,000/-. Out of the sum of Rs. 27,000/- an amount of Rs. 5,000/- (Rs. 3,000/- towards the amount received by P.W. 1 as provident fund after the death of the deceased and Rs. 2,000/- paid and finally the Tribunal awarded a sum of Rs. 22,000/- towards compensation against the three respondents. Hence this appeal by the Insurance Company. No appeal has been preferred by the respondents 1 and 2. The claimants have preferred a memorandum of cross-objections claiming more compensation.

5. Sri K. Ramagopal and R. Kondaiah, the learned counsel for the appellant, contend that the finding of the court below that the accident has resulted on account of the rash and negligent driving of the lorry driver is not correct and in any event the liability of his client as on the date of the accident, can at best be only Rs. 20,000/- and the subsequent amendment of Section 95 (2) (a) of the M.V. Act, 1939 enhancing the amount of Rs. 20,000/- to Rs. 50,000/- is only prospective but not retrospective and the court below erred in rejecting the claim of his client that it should be limited to only Rs. 20,000/- in so far as his client is concerned. This claim of the appellant is resisted by Mr. M. Jagannadharao, the learned counsel for the contesting respondents contending inter alia that the finding of the court below with regard to the accident is correct and the amendment is really retrospective in operation and in fact the amount of compensation awarded is inadequate and therefore must be enhanced.

6. We shall first examine the question whether the accident took place on account of rash and negligent driving by R.W. 1 or due to negligence of the Jatka driver. The answer to this question depends upon the evidence of P.Ws. 3, 4, 6 and 7 who were the eye witnesses to the occurrence. True as contended by the respondent's learned counsel, P.W.s. 3 and 4 are no other than the wife and brother of the deceased. Visweswara Rao and they were interested in supporting the claim. But, however, their presence at the time of the accident cannot be disputed. They were injured. They were travelling the ill-fated Jatka at the time of the accident along with the deceased. They spoke to the fact that the lorry came with a high speed and dashed against the Jatka and the accident has taken place only on account of the rash and negligent driving of the lorry by the driver. Their evidence is corroborated on all material particulars by P.W. 6 the Jatka driver, and P.W. 7 an independent 5 witnesses.

The trial court has accepted the evidence of these witnesses in preference to the version given by R.W. 1. R.W.1 is the lorry driver. He is certainly interested in saving himself by stating that he was not responsible for the accident. We may add that the criminal court had already found him guilty of the offence of rash and negligent driving and sentenced him to undergo rigorous imprisonment for a period of one year under Section 304-A of the Indian Penal Code. Taking into consideration all the evidence on record, we entirely agree with the court below that the accident was due to the rash and negligent driving by R.W. 1 but not due to the fault of P.W. 6, the Jatka driver.

7. It next fails for decision as to what exactly is the quantum of compensation that has to be awarded to the claimants by the Tribunal. The claimants claim a sum of Rs. 50,000/- as proper and reasonable compensation whereas the insurer contends that the sum of Rs. 22,000/- awarded by the Tribunal is excessive and, in any event, its liability must be confined to only Rs. 20,000/-.

8. Before examining whether the claimants are entitled to the enhancement of compensation from Rs. 22,000/- to Rs. 50,000/- it is convenient to first advert to the contention of the appellant that under no circumstances, its liability can be fixed higher than Rs. 20,000/-. The basis or foundation for this submission of the appellant is Section 95(2) of the Motor Vehicles Act, 1939 (hereinafter called the Act). The provisions of sub-section (2) to Section 95 of the Act are enacted to safeguard the interests of the insurer. The insurer is at liberty to raise any one or more of the objections permissible to him under Section 95(2) of the Act and avoid his liability. But however, it is not open to the insurer to raise any fresh grounds not specified in Section 95(2) of the Act for the purpose of avoiding his liability.

That apart, Section 95(2)(a) of the Act specifies the quantum of liability of the insurer inclusive of his liability, if any, arising under the workmen's Compensation Act, 1923, in respect of death or bodily injury to employees (other than the driver) where the vehicle involved is a goods vehicle. On August 25, 1968, when the deceased Visweswara Rao received a serious head injury in the accident and died in the same evening at the Government Hospital, Tanuku, the extent of the liability of the insurance company indicated in Section 95(2) of the Act was limited to a sum of Rs. 20,000/- only. The word 'Twenty' in Section 95(2) was substituted by the word 'fifty' by Section 54(b)(i) of the Motor Vehicles (Amendment) Act 56 of 1969 (hereinafter called the Amending Act) which came into force on March 2, 1970. Therefore, the maximum limit of the liability of the insurer which was only Rs. 20,000/- on 25-8-1968 was increased to a sum of Rs. 50,000/-. Hence on December 4, 1970, when the tribunal passed the award, the statutory maximum limit of the insurer's liability stood at Rs. 50,000/-. The pertinent question to be determined is whether it is the unamended provisions of Section 95(2) of the Act fixing the maximum liability of the insurer at Rs. 20,000/- or the amended provision of that section which increased the maximum limit of liability of the insurer to Rs. 50,000/- that govern the case on hand.

9. The answer to the aforesaid question depends upon the nature and character of the amendment of Section 95(2) of the Act made by Section 54(b)(i) of the Amending Act, increasing the maximum liability of the insurance company from Rs. 20,000/- to Rs. 50,000/-. If the amendment is prospective the unamended provisions of Section 95(2) would apply to the case on hand. If, on the other hand, the amendment is retrospective the amended provisions would govern the case. The question whether a particular amendment in a statute is prospective or retrospective was the subject-matter of several decided cases. Suffice it to refer to two leading decisions of the Supreme Court on this aspect in Shri Ram Narain v. Simla Banking and Industrial Co., : [1956]1SCR603 Jagannadhadas, J., speaking for the court, rules thus :

'It is perfectly true as stated therein that whenever an amended Act has to be applied subsequent to the date of the amendment the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. This is for the purpose of determining what the meaning of any particular provision of the Act as amended is, whether it is in the unamended part or in the amended part. But this is not the same thing as saying that the amendment itself must be taken to have been in existence as from the date of the earlier Act. That would be imputing to the amendment retrospective operation which could only be done if such retrospective operation is given by the amending Act, either expressly or by necessary implication.'

The same view has been reiterated by the Supreme Court in Garikapati v. Subbiah Choudhari, : [1957]1SCR488 . Therein, which considering the rule of construction applicable to an amending statute affecting the rights of the parties pending a proceeding, the learned Judge S.R. Das, C.J., observed thus :--

'The golden rule of construction is that, i the absence of anyting in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.'

It is, therefore, well settled that an amendment of a statute relating to substantive rights is normally prospective unless it is specifically indicated otherwise in the Amending Act or by necessary implication or intendment. Where the amendment does not affect the rights of the parties but changes or alters the procedure, it must considered to be retrospective. The amendment or substitution of the word 'fifty' for 'twenty' in Section 95 (2) of the Act is not of a procedural nature but it is of a substantive nature affecting the rights of the insurance companies as well as the claimants or dependents of deceased persons in motor accidents. If the amended provision is applied, the maximum limit of the insurance company's liability would be Rs. 50,000/- whereas if the unamended provision is applied, it would be only Rs. 20,000/-. We are of the firm view that the amendment in question is only prospective and it has no retrospective effect.

The finding of the tribunal that the amendment pertains to the procedural law and not substantive law and it has arte effet is erroneous and illegal. The tribunal did not apply its mind to the unamended and amended provisions of Section 95 (2) (a) of the Act and has not indicated in its award any reasons much less valid and justified, in support of its conclusion. The tribunal's view in this regard is unwarranted and perverse. The Tribunal failed to notice the well-settled rules of construction applicable to an amending statute affecting the rights of the parties as well as procedure and the decided cases of the Supreme Court.

10. We may approach the problem in another angle which we shall presently indicate. The question whether it is the unamended provision or the amended provision that governs the case on hand depends upon the date on which the right to claim compensation for the death or loss of the earning member, has accrued to the claimants or legal representatives of the deceased. The right to claim compensation from the insurance company as well as the owner and driver of the lorry accrued to the claimants on the date of the accident as a result of which Visweswara Rao died.

We may add that the cause of the action for the injured workman, or the dependents of the deceased workman arises against the employer at the time of the accident and on the date of the death of the deceased even under the Workmen's Compensation Act. Similarly, the cause of action for the claimants claiming compensation under Section 110-A of the Act (i.e. Motor Vehicles Act) against the insurer, owner and driver of the vehicle rises on the date of the accident as well as on the date of death of the deceased person. Hence, the right to claim compensation accrues only on the date of the accident or the death of the deceased. We are of the firm view that no cause of action would accrue or arise to the claimants either on the date of the application under Section 110-A or on the date of the passing of the award by the tribunal under Section 110-B of the Act for payment of compensation. This view of ours gains support or can be gathered from the very language of Section 110-A which provides for the filing of an application for compensation. The words 'arising out of an accident of the nature specified in sub-section (1) of Section 110' used in Section 110-A of the Act may be noticed. Section 110 also speaks of claims for compensation in respect of accidents involving the death of or bodily injuries to the persons arising out of the use of the Motor Vehicles.

On a careful reading of the provisions of Chapter VIII of the Act we have no hesitation to hold that the rights to claim compensation has, in fact, accrued of arisen to the claimants at the time and on the date of the very accident and the death of the deceased. The quantum of compensation has to be determined in accordance with the procedure prescribed under Chapter VIII of the Act and after affording reasonable opportunity to all the parties concerned. The maximum limit of the insurer's liability indicated in Section 95 (2) of the Act as on the date of the accident as well as on the date of death of the deceased would only govern the rights of the parties.

In other words, the insurer in the present case would be liable to all to that extent of the maximum amount indicated in Section 95 (2) (a) of the Act as it stood on the date of death of the deceased person but not more. We may add that the same view has been expressed by a Division Bench of the Orissa High Court in Sabita Pati v. Rameswar Singh, (1973) Acc CJ 319 at p. 330 (Ori). After noting the amendment of Section 95 (2) (a) of the Act with regard to the limits of Rs.20,000/- being enhanced to Rs. 50,000/- by the Amending Act, the learned Judge observed thus :--

'In view of the fact that at the time of accident the limit was Rs. 20,000/- the subsequent amendment would not apply to the case and the liability of the insurer would continue to be Rs. 20,000/- only as was provided in the statute at the time of accident.'

11. For all the reasons stated, we find that the maximum liability of the appellant-insurance company to pay compensation to the claimants in this case is only Rs. 20,000/- and not more, as specified in the unamended provisions of Sec. 95 (2) (a). In this view, we modify the award in so far as the liability of the insurance company is concerned, by limiting it to Rs. 20,000/- only instead of Rs. 22,000/-. However, we affirm the award of the tribunal in so far as the liability of the respondents 1 and 2, the driver and the owner of the lorry is concerned. In this view, it is unnecessary for us to go into the merits of the Memorandum of Cross-objections directed against the insurance company alone. The Civil Miscellaneous Appeal is allowed to the extent indicated and dismissed in other respects. There shall be no order as to costs. The cross-objections (at the S.R. stage) are also dismissed but without costs.

12. Appeal partly allowed.


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