United India Insurance Co. Ltd. vs A.S. Choudhury and Others

S.N. Phukan, J.—This appeal is directed against the order dated 24.3.1990 passed by the learned Member, Motor Accidents Claims Tribunal, Barpeta, in M.A.C. Case No. 10 (B) of 1985. By the said order the learned Member passed an order u/s 92-A of the Motor Vehicles Act, 1939 and awarded an interim compensation of Rs. 60,000/- in respect of the four persons who died as a result of the accident. The compensation was awarded at the rate of Rs. 15,000/- for each death and to be paid by the insurance company, who is an appellant herein. The claim petition was filed by the husband for the deceased wife and his sons aged 5 years and 6 years and one daughter aged 3 years. All the deceased persons were travelling in bus No. ASZ 3685. The accident took place on 11.2.1979 at about 2.30 a.m. at Bannarhala Bridge under Barpeta Police Station. The claim petition was filed claiming compensation of Rs. 3,00,000/-.

Though an appeal has been filed against the stay order, the appeal is not maintainable, as decided by this court in State of Assam Vs. Pranesh Debnath and Others, It was also held by this court in the above decision that a revision petition would lie.

At the prayer of the learned counsel for the appellant the present memo of appeal was treated as a revision petition and I propose to dispose of the matter by this order.

The only point urged by Mr. Bhuyan is that the impugned order u/s 92-A of the Motor Vehicles Act, 1939, is not legal and valid, as the accident took place on 11.2.1979 but the above section was introduced by amending Act No. 47 of 1982; the Act received the assent of the President on 31.8.1982 and was published in the official Gazette on 1.9.1982. In the Act it was provided that provisions of the amending Act may be brought into force by notification and accordingly the above Section 92-A was brought into force with effect from 1.10.1982 and not from the date of notification of the amending Act in the Gazette. In support, the learned counsel has placed reliance in the decision of the Apex Court in R.L. Gupta and Others Vs. Jupitor General Insurance Company and Others, and the Full Bench decision of Madhya Pradesh High Court in New India Assurance Co. Ltd., Gwalior Vs. Nafis Begam and Others, Learned counsel has fairly submitted that there are decisions of other High Courts wherein it was held that the provision of Section 92-A of the Motor Vehicles Act has retrospective effect. However, keeping in view the above decision of the Apex Court, the Full Bench of Madhya Pradesh High Court held that the above provision cannot be given retrospective effect.

If I hold that Section 92-A shall have only prospective effect the impugned order will be bad in law.

In R.L. Gupta and Others Vs. Jupitor General Insurance Company and Others, Apex Court (para 5) held as follows:

We assess compensation for each of them at Rs. 20,000/- in the absence of any specific evidence. This is keeping in view the quantum of no fault liability now provided by the statute prospectively. The net result is that appeal is allowed in part and following two reliefs are granted....

(Emphasis supplied)

Thus, from the above it appears that the Apex Court considered the said provision of the Motor Vehicles Act and held stating clearly that the provisions for no fault liability u/s 92-A of the Act shall apply prospectively. Therefore, Section 92-A shall have only prospective effect.

In New India Assurance Co. Ltd., Gwalior Vs. Nafis Begam and Others, Madhya Pradesh High Court also held that provisions of Section 92-A cannot be availed of by the parties involved in accidents which took place before 1.10.1982. In coming to the above conclusion the High Court also considered the above observation of the Apex Court in R.L. Gupta and Others Vs. Jupitor General Insurance Company and Others, The High Court has dealt with elaborately as to why the above provision will not have retrospective effect and in doing so also kept in mind that the above piece of legislation is a social welfare legislation. In arriving at the above decision the High Court took note of the decision of the Apex Court in Padma Srinivasan v. Premier Insurance Co. Ltd. 1982 ACJ 191 (SC) and quoted para 6 of the said decision which runs as follows:

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 law obtaining at the time of the accident for determining the extent of the insurer''s liability under 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.

The High Court was also influenced by the fact that the Section 92-A was brought into force with effect from 1.10.1982 and not from the date on which the amending Act was published in the official Gazette and held that it was a sure indication that the legislature never intended to give benefit of the new provisions from a prior date.

I am in respectful agreement with the law laid down by the Full Bench of the Madhya Pradesh High Court and hold that Section 92-A of the Motor Vehicles Act has got prospective effect. Therefore, in the case in hand, as the accident took place on 11.2.1979, the claimant cannot get the benefit of the said Section 92-A.

Mr. Bhuyan has fairly stated that this is only an interim measure for awarding compensation and this will not affect the ultimate result of the case. According to the learned counsel, if the insurance company is found liable for any amount as per law, it would be paid as per award.

For what is stated above, I find merit in the present petition. Accordingly, it is allowed by setting aside the impugned order dated 24.3.1990 passed by the learned Member, Motor Accidents Claims Tribunal in M.A.C. Case No. 10 (B) of 1985. As the opposite party has not appeared, I do not award any costs.