I. Ayiponnu (died), M. Singammal and R. Ramu vs General Manager, Tamil Nadu State Transport Corporation (Kumbakonam Division), Kumbakonam and Durai

A. Ramamurthi, J.—The claimant in MACT OP No. 159 of 1987 on the file of Motor Accident Claims Tribunal, Pudukottai, has filed the

present appeal aggrieved against the award dated 15/11/1988, The 1st claimant died during the pendency of the appeal and, as such, claimants 2

and 3 were brought on record as the legal heirs. The case in brief is as follows:-The deceased Lakshmanan aged about 22 was owning a mini van

bearing No. TNP 5244 and earning a sum of Rs. 3,000/= per month as hire charges. He was a bachelor and the family depended on his income.

On 04.06.1986 at about 4.45 p.m. he was driving the mini van in Thanjavur Pudukottai Road and when nearing Perungalur Village, the 2nd

respondent drove the bus belonging to the 1st respondent Corporation bus bearing No. TML 5069 attempted to overtake the said mini lorry and

caused this accident and as a result of which, the mini lorry capsized and the said Lakshmanan sustained injuries. He was taken to the Government

Hospital, Pudukottai, wherein he died at about 5.15 p.m. The claimant claimed a sum of Rs. 2,00,000/= by way of compensation.

The respondents contended that the accident took place because of the negligence of deceased Lakshmanan. Further more, the deceased had no

valid licence to drive the mini lorry. One Kamaraj was the real driver of the mini lorry. Hence, no compensation is payable to the claimant.

The tribunal on the basis of evidence of P.Ws.1 and 2, and R.W.1 and Exs.A-1 toA-10 dismissed the claim application on the ground that the

accident took place due to the negligence of the deceased. However, the Tribunal also fixed the quantum of compensation at Rs. 63,000/=. The

1st appellant being the legal heir of the deceased Lakshmanan has preferred the present appeal.

The 1st respondent was served as early as 23.01.1991. The 2nd respondent has been given up. In spite of service on the 1st respondent,

neither they appeared nor engaged any counsel.

Heard the learned counsel for the appellants.

There is no dispute that the deceased Lakshmanan died in the road traffic accident which took place on 04.06.1986 at about 4.45 p.m. in

Thanjavur Pudukottai Road near Perungalur Village. The tribunal dismissed the claim application on the ground that the claimant failed to establish

that there was any negligence on the part of the driver of the Corporation bus and the accident took place only due to the negligence of the

deceased. Learned counsel for the appellants contended that even assuming that the claimants are not entitled to any compensation, however under

no fault liability u/s 92(A) of Motor Vehicles Act, now amended u/s 140 of Motor Vehicles Act, they are entitled to claim a sum of Rs. 50,000/=.

I have carefully perused the order passed by the court below. The claimant, no doubt, failed to establish that the accident occurred due to the

rash and negligent driving of the driver of the bus. Moreover, the deceased was having only a licence to drive light motor vehicles and he was not

possessed of any valid licence. Hence, the finding by the tribunal that the accident occurred due to the negligence of the deceased is proper and

correct and no interference is called for.

The only question that has to be considered is whether the claimants are entitled to claim compensation under no fault liability. Admittedly, the

occurrence took place on 04.06.1986 and, as such, section 92(A) of Motor Vehicles Act will have application. Perusal of the section indicates

that under no fault class liability, the claimants would be entitled to a sum of Rs. 15,000/= only. But the learned counsel for the appellants relied

upon the decisions reported in Fathima and Others Vs. Sathish Kumar Jolly and Another, and National Insurance Co. Ltd. and Another Vs. Usha

Debi and Another, ) in support of his contention that the claimants would be entitled to get a sum of Rs. 50,000/= under no fault liability. It is seen

from these decisions that although the occurrence took place prior to 1989, u/s 140 of 1988 Act will have retrospective effect. In short, the claim

petitions which are pending before the tribunals or the courts in appeal at the time of introduction of this provision for no fault liability require to be

considered and disposed of keeping it in view. I am of the view that the principle in these decisions can be made applicable to the case on hand.

By invoking section 140 of the Amended Act, there is no difficulty in coming to the conclusion that the claimants would be entitled to claim a sum

of Rs. 50,000/= by way of compensation under no fault clause. It is unfortunate that the court below has dismissed the claim petition in entirety,

without awarding compensation under no fault clause. If the tribunal has properly applied with section 92-A, then the claimant would have received

only Rs. 15,000/=; but in view of the dismissal, the claimants have come forward with the appeal and now they have taken advantage of the

amended Act and, as such, they are entitled to claim Rs. 50,000/= under no fault clause. For the reasons stated above, the appeal is allowed and a

sum of Rs. 50,000/= is fixed as compensation under no fault liability payable by the 1st respondent. The 1st respondent is directed to deposit the

amount in a period of eight weeks from this date, failing which, the appellants are entitled to claim interest at 9% from the date of petition till date of

deposit. On such deposit, the claimants are entitled to withdraw the amount. No costs.