P. Nestalamma K. Akkullamma vs S. Adibabu and Others

Jagannadha Rao, J.—Two questions arise for decision in these two appeals. The first question is whether the provision in section 92 A of the motor vehicles Act, 1939 (for short "the Act"), with regard to the liability on the principal of "no fault" brought in by Act 47 of 1982, is retrospective in nature. The second question is whether, on the facts of each of these two appeals, negligence on the part of the driver of the vehicle is made out.

C. M. A. No. 1006 of 1981 arises out of O. P. No. 54 of 1980, while C. M. A. No. 47 of 1982 arise out of O. P. No. 51 of 1980. These two original petitions and some other original petitions were disposed of by the Motor Accidents Claims Tribunal, East Godavari at Rajahmundry by a common judgment. The Tribunal came to the conclusion that the evidence adduced on behalf of the claimants did not establish negligence on the part of the driver of the vehicle at the time when the two persons in question died consequent to the accident that occurred on October 13, 1979. On the basis of the said finding, the Tribunal dismissed the original petitions. Against the said judgment in respect of the two original petitions, these two appeals are preferred in this court.

In these appeals, it is contended by learned counsel for the appellants that, in any event, the claimants are entitled to a sum of Rs. 15,000 in each of these cases in view of the provision contained in section 92 A of the Act, introduced by the Amendment Act 47 of 1982, with effect from october 1, 1982. It is argued that said provision is retrospective in nature and applies even in respect of accidents which had taken place prior to October 1, 1982. Alternatively, it is argued that the evidence adduced on behalf of the claimants established negligence on the part of the drive of the vehicle and that, therefore, the Tribunal ought to have awarded reasonable damages in respect of the death of these two persons.

On the other hand, it is contended by Sri. S. V. S. R. Somayajulu, learned counsel for the insurance company, that the provision introduced in section 92 A of the Motor Vehicles Act is not retrospective and that that section applies only to cases where the accident occurred subsequent to October 1, 1982. Alternatively, he contended that the finduing of the lower court that there was no negligence on the part of the drive is correct.

Initially, I shall deal with the First point. u/s 92 A, Parliament ontroduced the principal of compensation in "no fault" cases, that is to say, irrespective of the question of negligence on the part of the drive of the vehicle. That provision was introduced by Act No. 47 of 1982, with effect from October 1, 1982. In the present case, the accident occurred on December 30, 1979, and the original petitions were filed in 1980, and disposed by the Tribunal on August 28, 1981. August the said judgment,the present appeals have been preferred and are pending.

The question that arises is whether the provision contained in section 92 A can be applied to these cases in which the accident occurred prior to the introduction of section 92 A. It is argued for the appellants that the provision is a piece of welfare legislation and that the intention of Parliament was that the same should be applied retrospectively. On the other hand, it is argued for the respondents that from the fact that the statute imposes an additional liability on the insurance company, it follows that the Act was not intended to be retrospective unless there is any express provision in the statute or there is a necessary implication.

I am of the view that the intention of Parliament is not to give retrospective effect to section 92 A of the Act, inasmuch as the section imposes a new and additional liability on the insurance company which was not in existence on the date of the accident. Hence, the said provision cannot be construed as having retrospective effect. In other words, it is the date of the accident that is relevant and the liability has to be computed with reference to the statutory provision in force as on the date of the accident.

A similar question arose before the Supreme Court in Padma Srinivasan Vs. Premier Insurance Company Limited, . In that case, the supreme Court was dealing with the amendment to the Motor Vehicles Act under 56 of 1969, by which the liability of the insurance company was raised from Rs. 20,000 to Rs. 50,000. Their Lordships of the Supreme Court Pointed out that the policy contained an undertaking by the insurance company to become liable in respect of "liability as to one under Chapter 8 of the Motor Vehicles Act, 1939," and that the said undertaking has to be construed along with provisions of the statute as on the date of the accident. Their Lordship observed as follows (at page 336):

"If the parties to a contract agree that one shall pay to the other damages for a breach of the contract in accordance with the law contained in any particular statute, without identifying the law as the provision which is in force on the date of the contract, the law which will apply for determining the quantum of damages is the one ehich is in force on the date on which the breach of contract is committed, that being the date on which on which the contract was made."

They further observed as follws (at page 337):

"The application of a law to the facts which come into existence after that law has come into force does not involve giving retrospective operation to the law, merely because the facts to which the law is being applied are relatable to a contract or an instrument which had come into operation prior to the date on which the law itself had come into force."

The Supreme court then observed that (at page 336):

"... the words ''liability as the one under Chapter VIII of the Motor Vehicles Act, 1939,'' mean liability as determinable under Chapter VIII at the relevant time, that is to say, at the time when the liability arises. Since the liability of the insurer to pay a claim under a motor accident policy arises on the occurrence of the accident and not until then, one must necessarily have regard to the state of the law obtaining at the time of the accident for determining the extent of the insurer''s liability a statutory policy. In this behalf , the governing factor for determining the application of the appropriate law is not the date on which the policy of insurance came into force but the date on which the cause of action accrued for enforcing liability arising under the terms of the policy."

from the aforesaid ruling, it is clear that in cases where the statute is amended subsequent to the grant of an insurance policy and the accident occurred subsequent to the amendment of the law, then the liability of the insurance company under the policy would be as per the amended law inasmuch as the liability arose on the date of the accident. However, in cases where there is an amendment to the law subsequent to the grant of the policy, but the accident occurred prior to the date of the amendment of the law, then the liability of the insurance company will be according to the law that was in force on the date of the accident prior to the amendment.

In these two cases before me, there is a clear endorsement in the policy, exhibit B-3, that the limit of liability is "such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939". In view of the above said condition of the policy, it is clear that the liability of the insurance company will be as on the date when the accident occurred. Inasmuch as section 92 A was not in forcr on the date of the accident, the appellants cannot rely on the provisions of section 92 A. I, therefore, reject the first contention.

The secound contention of learned counsel for the appellants is that the court below no doubt came to the conclusion that negligence on the part of the driver of the vehicle was not made out. But it is contended by learned counsel for the appealnts that the evidence clearlt establishes negligence on the part of the driver. I shall now refer to his this evidence.

PW-1 is rhe wife of Appa Rao who died in the accident and she is the petitioner-claimant in O.P.No. 51 of 1980. She says that the deceased was aged 30 years at the time of the accident. She further says that the seceased was working as a coolie in Sri Ramadas Motor Transport Parcel Service and was earning Rs. 15 to Rs. 20 per day. She came to the village atfer the accident occurred and went to the General Hospital and found that her husband died. Now she, along with her two childern who were aged 13 years and 6 years, resectively, was living with her parents. It is suggested to her that she had remarried afer the death of her husband and was living in onother village. It is also suggested to her that the deceased was earing only Rs. 6 per day as a coolie.

PW-2 is the first petitioner in O. P. No. 54 of 1980. The other petitioners are her father-in-law and mother-in-law. Her husband also died in the same accident. Her husband is a cycle rickshaw puller. She does not know whether her husband had onother wife name setharatnam, shown as petitioner in O. P. No. 132 of 1980 or about her having a son. Her husband was earning Rs. 10 to 20 per day by pulling a cycle rickshaw. It is suggested to her that is not the wife of the deceased and thet she has set up a false case and that one Seetharatnam is the wife of Appa Rao.

PW-3 is the father of the deceased who is concerned in O. P. No. 54 of 1980. HE speaks to the fact that PW-2 is the daughther-in- law and that PW-2 married his son and he further states that the deceased was earing Rs. 10 to Rs. 15 per day by pulling the cycle rickshaw.

PW-4 is the petitioner in O. P. No. 132 of 1980. She has not filed any appeal. Pw-5 is the father of Pw-4 and it is not necessary to consider his evidence. The above is the evidence of the family members of the deceased. I shall now refer to the evidence of persons who clamed to be eye-witnesses to the accident.

Pw-6 is one Nagaraju who is also a rickshaw puller. He says that he was turning back from Metlapalem with his rickshaw and reached Kobberichetlapalem near an arrack shop at 3.30 p.m. and found two persons, namely, the deceased sitting on the front rod of the cycle while the cycle was being driven by the other person. That cycle was proceeding in front pf PW-6 on the left side of the road, 20 yards ahead of the witness. Then the bus which was coming from the direction of Yanam and was proceeding towards Kakinada passed by tge side of PW-6 at high speed and rashly and negligently proceeded further and hit the cycle on which the deceased and another person were going together . Both the persons fell down. One person died on the spot while the other was severely injured. the bus halted after going a few yards. The injured person was taken to hospital in another van while the dead body was left on the spot. He went to his house and then informed the parents of the deceased and PW-4. In cross- examination, he no doubt stated that he attended the court when PW-4 gave evidence, but it is not clear whether he was present inside the court hall. His house is next to the house of the deceased (in O. P. No. 54 of 1980). He further stated in the cross-examination that he and the cycle of the deceased were all going in the same direction. The bus came from behind him and proceeded further for about 20 yards and then hit the cycle. Merely because the bus was proceeding in front of the witness and he could not actually see the bus hitting the two person, his evidence cannot be disbelieved. The witness was also proceeding in the same direction and he was able to see what happened before the accident and what happened immediately atfer the accident. Having regard to such a situation, his evidence cannot be disbelieved.

PW-8 is working in the arrack depot at Kobberichetlapalem. He states that he was present at the arrack depot. the bus came from Yanam direction towards Kakinada and rashly and fast at a high speed without blowing the horn and hit the cycle. The two person on the cycle were injured; one of them died on the spot and the other was taken to the hospital. The cycle was smashed and the front wheel of the cycle got separated from it. In cross- examination, he stated that there was no specific name given to the arrack shop. He and one Dharma Raju were the salesmen at the arrack shop. He stated that there was no pendal and that the compound was not enclosed. Exhibit B-2, photograph, was put to him a with a view to see that there was a pendal. But it is not clear when this photograph was taken and the pendal was erected. From that fact alone, his evidence cannot be disbelieved. It is true that he stated that he did not know whether Dharma Raju was the owner of the arrack shop. But, in my opinion, it is not meant that he was working in the arrack shop. After all, the witness may not be knowing as to who is in management of the arrack shop and as to who is the owner of the shop.

RW-1 is the driver of the vehicle and he no doubt states that he was not driving the vehicle negligently or rashly. But, having regard to the evidence of Pw-6 and 8, I am not inclined to accept the evidence of RW-1.

RW-2 is Dharma Raju who is working as a salesman in the arrack shop. He states that the licence of the depot was standing in his name. From that evidence, it does not follow that PW-8 was speaking false. As already stated, Pw-8 may not be knowing the distinction between the manager of the shop and the actual licensee. In view of the evidence of PWs-6 and 8, I am of the view that the appellants have made out a case that the vehicle was being driven rashly and negligently by RW-1 and that it accordingly hit the cycle on which the two deceased persons were travelling. Reversing the finding of the Tribunal, I hold that the appellants have established negligence on the part of the driver.

Having regard to the income mentioned by PWs-1 and 2, I am of the view that the compensation of Rs. 15,000 would be adequate in each of these two cases.

For the aforesaid reasons, the appeals are allowed and a decree is passed in favour of the claimants in these two original petitions for a sum of Rs. 15,000. The Tribunal is directed to make necessary apportionment between the various claimants. No costs.