National Insurance Co. Ltd. vs Hari Narayan Ojha and Others

S.K. Chattopadhyaya, J.—This appeal is directed against the judgment dated 17.8.1996 passed u/s 140 of the Motor Vehicles Act, 1988 (in short ''the M.V. Act'') awarding a sum of Rs. 25,000 to the claimant/respondent No. 1 by way of interim compensation.

It is not in dispute that the impugned order was passed on 17.8.1996 and this appeal was filed on 20.12.1996 specifically mentioning that award has not yet been prepared. The Stamp Reporter by his stamp report dated 14.2.1997 gave a report that defects, limitation and stamp report will be made on depositing the amount required under proviso to Sub-section (1) of Section 173 of the M.V. Act, 1988 by the appellant. The said amount having been deposited, fresh stamp report was made on 17.2.1997 pointing out that the appeal was filed in time.

Mr. Roy appearing for the appellant submits that the order of the learned Tribunal is vitiated in law inasmuch as it has failed to notice that on 15.7.1994 the accident took place and on 14.11.1994 the amendment was made by the legislature in Section 140 of the M.V. Act enhancing the amount of compensation in respect of permanent disablement of any person from Rs. 12,000 to Rs. 25,000. He submits that when the accident occurred, the amendment provision was not there and under the unamended provision the amount of compensation payable under Sub-section (2) of Section 140 of the Act in respect of death of any person was Rs. 25,000 and the amount of compensation payable under the said Sub-section in respect of permanent disablement was Rs. 12,000. In support of his contention Mr. Roy has relied on a decision rendered by the Full Bench of the Kerala High Court in the case of The Oriental Insurance Co. Ltd. Vs. Sheela Ratnan and Others, , which has relied on the decision of the Apex Court in Padma Srinivasan Vs. Premier Insurance Company Limited, .

Mr. Ojha, on the other hand, strongly contended that no appeal is provided against an order passed u/s 140 of the M.V. Act and, as such, the instant appeal is not maintainable in law. Alternatively, he argued that even if the appeal is maintainable, it is barred by limitation of 34 days. Lastly, he submits that the amendment provision in Section 140 of the Act which came into force on 14.11.1994 cannot be made applicable in this case inasmuch as in view of Section 1(2) the provision shall come into force on such date as the Central Government may, by a notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any rule and any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

That first contention of Mr. Ojha that the appeal is not maintainable, in my view, is only to be noted and rejected. A Division Bench of this Court in the case of Oriental Insurance Co. Ltd. Vs. Mohiuddin Kureshi alias Md. Moya and Others , has held, inter alia, that an order, passed u/s 140 of the Act is an award and an appeal preferred by the aggrieved person is maintainable.

Second contention of Mr. Ojha that the appeal is barred by limitation, in my view, is also without any merit and must be rejected. Appeal has been provided u/s 173 of the Act and such appeal must be filed within 90 days from the date of award. In this case, admittedly the impugned order is dated 17.8.1996 which in view of the aforesaid Division Bench decision is an award against which the appellant has filed the appeal on 20.12.1996, i.e., well within time.

The third contention of Mr. Ojha that as because the State Government has not specified any particular date in respect of implementation of the amendment provision in Section 140 of the Act, the amended provision should be applicable, in my view, is also devoid of any merit. Referring to Rule 246(10) of the Bihar Motor Vehicles Rules, 1992, Mr. Ojha submits that the Claims Tribunal while passing the order, can make award of compensation of Rs. 25,000 in respect of permanent disablement to be paid by the owner or the insurer of the vehicle involved in the accident.

It appears that Section 140 of the Act is in Chapter X of the Act and the State Government was not authorised to make any rule in respect of Sections 140 to 144 of the Act. From a bare perusal of Bihar Motor Vehicles Rules, 1992 it will appear that the rules have been framed in exercise of the powers conferred by Sections 28, 38, 65, 95, 96, 107, 111, 138, 176 and 211 of the Motor Vehicles Act, 1988. Mr. Ojha has failed to point out the section under which the State Government has been empowered to make rules in respect of Chapter X of the Act which deals with the ''liability without fault in certain cases''.

Recently a Full Bench of the Kerala High Court in the case of The Oriental Insurance Co. Ltd. Vs. Sheela Ratnan and Others, , inter alia, has held that the provisions contained in Section 140(2) of the Act are substantive and not procedural in nature and, as such, right accrues and liability is incurred on the date of the accident and not on the date of consideration of the claim. In coming to the said conclusion the Full Bench has noticed several judgments of the Apex Court as well as other High Courts.

As in the case before the Full Bench, so in the instant case also Mr. Ojha has not been able to satisfy the court that the legislature intends to make substantive provisions of law, retrospective in operation by expressing its clear intention. The Full Bench has also taken into consideration the provisions as laid down in Section 144 of the Act as well as Section 6 of the General Clauses Act, 1897 and has held that Section 6 of the General Clauses Act, 1897 is not excluded in considering the effect of repeal of the Motor Vehicles Act, 1939.

Having given my anxious consideration to the facts and circumstances of the case I am of the view that the learned Tribunal utterly failed to consider the settled law in this regard before awarding a sum of Rs. 25,000 to respondent No. 1. In my view, respondent No. 1 is entitled to a sum of Rs. 12,000 inasmuch as admittedly the accident took place on 15.7.1994 and the amendment in Section 140 of the Act enhancing the amount of compensation has come into effect from 14.11.1994.

In the result, the appeal is allowed and the judgment and award of the Tribunal dated 17.8.1996 is set aside. The respondent No. 1 is entitled to withdraw a sum of Rs. 12,000 from the amount deposited by the appellant as required u/s 173 of the Act.