JUDGMENT
Shamsuddin Ahmed, J.
1. This appeal is directed against the judgment dismissing the claim for an award of compensation under Section 110-A of the Motor Vehicles Act passed by the learned Judge, Motor Accidents Claims Tribunal, Calcutta, 24-Parganas at Alipore in Motor Accident Claim Case No. 65 of. 1975.
2. The claimant’s case was that on 16.1.1975 at 1.30 p.m. Ajit Ghose aged about 7/8 years died as a result of motor accident involving a lorry bearing No. WBL 5852. The accident was claimed to have been caused by the carelessness and negligence on the part of the driver of the said lorry. O.P. No. 1, owner of the lorry, did not enter appearance and also did not contest the claim. The insurance company, O.P. No. 2, duly entered appearance and filed a written statement denying the allegation of negligence of driver of the vehicle.
3. The learned Judge in deciding the claimant’s case observed that in order to be entitled to compensation arising out of a death caused by a motor vehicle the claimant has to prove that the accident was caused by rash and negligent driving of the motor vehicle by its driver. The learned Judge held that in the instant case no negligence could be proved. The learned Judge held that as a result of the accident Ajit Ghosh died on 16.1.1975; but no negligence or rash driving could be established by the claimant. According to the learned Judge, PWs 1 and 2 did not see the accident at all. Before going into the merits on evidene of this appeal, we propose to consider the impact of Section 140 of the Motor Vehicles Act, 1988. Section 140 runs thus:
(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under Sub-section (1) in respect of the death of any person shall be a fixed sum of Rs. 25,000/- and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of Rs. 12.000/-.
(3) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under Sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility of such death or permanent disablement.
4. This section replaced Section 92-A of the Motor Vehicles Act of 1939 which came into force with effect from 1.10.1982.
5. It will appear from the facts of this case that when the accident took place neither Section 140 of 1988 Act nor Section 92-A of the 1939 Act came into force. On the date on which the accident involved in this case took place, the claim could only be granted if the petitioner could show that the driver of the vehicle concerned was either rash or negligent in driving the vehicle and the victim did not contribute in any way to the occurrence of the accident in which he became a victim. Section 140 has provided for no fault claim up to a limit; but it has not done away with the requirement of obtaining damages on the proof of negligence on the part of the driver and also proof of no contributory negligence on the part of the victim. Section 141 of the Act of 1988 provides that the right to claim compensation under Section 140 in respect of death or permanent disablement of any person shall be in addition to any other right to claim compensation in respect of the same under any other provisions of the Act or any other law for the time being in force. Therefore, it cannot be said that the law of tort which applied to cases of damages involving motor accident has not been abrogated altogether. In terms of the provisions of Section 140 an amount of Rs. 25,000/- for death and Rs. 12,000/- for permanent disablement can be awarded without proof of any wrongful act or neglect or default on the part of the owner of the vehicle concerned and it cannot be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made. The amount cannot also be reduced on any ground. The question that has cropped up for our consideration is if the provisions of Section 140 can be applied in a pending appeal in respect of a claim case cause of action of which arose prior to this section or Section 92-A of the previous Act came into force.
6. Answer to this question must depend on the determination of the nature of the section, namely, whether it is substantive or adjective in character. In a decision reported in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC), the Supreme Court made an observation that Section 92-A of the 1939 Act was clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or the driver of the motor vehicle before claiming any compensation for death or permanent disablement caused on account of a motor vehicle accident. It further held that to that extent the substantive law of the country stands modified. In another decision reported in R.L. Gupta v. Jupiter General Insurance Company , the court observed that an amount of Rs. 20.000/- awarded as compensation is in keeping in view of the quantum of no fault liability now provided by the statute prospectively. It will appear in both the decisions that the Supreme Court was not considering the nature of entire Section 140 of the Motor Vehicles Act. In the latter case, it made the observation as justification for awarding an amount of Rs. 20,000/- being awarded as compensation for death in the absence of any other evidence. While relying on the amount prescribed by Section 140 or Section 92-A of the previous Act, the court made an observation that the statute applied prospectively. The other provisions, namely, the impact of Sub-sections (3) and (4) of Section 140 was not considered by the Supreme Court at all. In the former decision, the. Supreme Court only observed that because of Section 92-A of the 1939 Act, the substantive law on the sub-section has been modified. In neither of these two cases the Supreme Court was considering Section 140 or Section 92-A which is similar in nature in its entirety. In an unreported decision a Division Bench of this Court in Gitarani Dutta v. Govinda Ch. Karmakar First Appeal No. 368 of 1972, considered the question whether Section 140 is retrospective in its operation. The Division Bench observed that in view of the findings arrived at in the appeal the consideration of this point was rather redundant. In the case under consideration, the Division Bench determined the compensation of Rs. 27.720/-. Therefore, it was not necessary for them to consider whether Section 140 is at all retrospective. But the Bench held that since they had been addressed on this point, they are inclined to express their views, They came to the conclusion that Section 92-A inserted in 1939 Act by an amendment of 1982 came into force only on 1.10.1982. Section 92-A of the former Act was repealed by Section 1(3) of the 1988 Act providing that the latter Act will come into force on such date as the Central Government may, by notification in the Official Gazette, decide. 1.7.1989 is the date determined by notification. From the language of the section the court was of the view that there is nothing to indicate that the sections were made retrospective in their operation even by implication. According to them, the provision was substantive law and it cannot be retrospective in its operation unless made so by the express provision or by necessary implication and accordingly held that these sections are prospective in operation. The learned advocate appearing for the appellant has drawn our attenttion to a decision reported in Oriental Fire and General Insurance Co. Ltd. v. Shantabai S. Dhume 1987 ACJ 198 (Bombay). The court held that Section 92-A is to be applied to all pending cases irrespective of the date on which the accident occurred. Mr. Ajit Bhusan Majumdar, learned advocate, was requested by us to address us on the point. He has referred to decisions reported in 1991 ACJ 476 [Sic. Dorakonda V. Seshachalapathi v. Vijayawada Co-op. Central Bank and T. Srinivasulu Reddy v. C. Govardhana Naidu ] and submitted that Section 140 or Section 92-A of the former Act can be applied to pending cases. Before expressing our views on the point, it has to be decided whether Section 140 is substantive or procedural in character. We have earlier quoted the section in its entirety. Sub-section (3) provided that the claimant is not required to plead and establish that death or permanent disablement in respect of which the claim has been made was due to a wrongful act, neglect or default on the pa4rt of the owner and Sub-section (4) provided that claim for compensation cannot be defeated by reason of any contribution made by a victim. Sub-section (1) lays down that liability for payment of compensation for death or permanent disablement arising out of use of motor vehicle shall be on the owner of the vehicle in accordance with the provisions of Section 140. Sub-section (2) limits that compensation under Sub-section (1). In respect of death it is Rs. 25,000/- and in respect of permanent disablement a fixed sum of Rs. 12,000/- only. Sub-sections (3) and (4) provide, as we have already indicated, that evidence with regard to negligence is not required to be adduced in such a case. It further provided that contributory negligence will not entitle the Tribunal to reduce the amount of compensation fixed by Sub-section (2). There is no doubt that combined effect of Sub-section (1) and Sub-section (2) is of substantive nature. It substantively provides that in place of the prevailing law of Tort no negligence need to be proved in a case where amount of compensation does not exceed Rs. 25,000/- in case of death or Rs. 12,000 for permanent disablement. But Sub-sections (3) and (4) appear to us to be absolutely procedural in nature. It only abrogates the law of procedure regarding production of evidence on the basis of which compensation can be awarded. Even now some requirements of Section 140 have to be proved to enable a person to obtain compensation under that section. But such onus will not relate to the negligence on the part of the owner of the vehicle. Since it only waives the earlier procedure to establish negligence, it must be treated as a law of procedure. If it is a law of procedure, it can be retrospectively effective. If it has no retrospective operation, it will lead us to a very strange situation. In a case where cause of action arose prior to Section 92-A of the former Act having come into force and a case where cause of action which arose subsequent to Section 92-A having come into operation and both the cases being tried on the same date before a Tribunal, the Tribunal would be compelled to apply two different procedures in these two different cases in relation to the admission of evidence. This will lead to discrimination in the matter of procedure in a court of law in respect of the same matter only on the ground that the cause of action of these two cases has arisen on two different dates. In our view, Section 140 of the Motor Vehicles Act has made provisions for payment of compensation in certain cases on the principle of no fault only by amending the procedural law. So far it provided that Sub-section (1) will govern the compensation to be paid by the owner of a vehicle up to limit mentioned in Sub-section (2) it is really substantive in nature. But its objective is achieved by amending the procedural law.
7. No person can have a vested right in a case of prosecution or defence in the manner prescribed for the time being by or for the court in which he sues and if there is an Act which alters the mode of procedure he has no other right than to proceed according to. the altered mode.
8. We may also note that the law that alters the legal rules of evidence and receives less or different testimony than required at the time of the commission of the offence in order to convict the offender must be treated as ex-post facto law and such a law generally takes effect retrospectively. Provisions of Section 140 of the Motor Vehicles Act contained in Sub-sections (3) and (4) will be treated as ex-post facto law as it alters the legal rules of evidence, in so far as to the requirement of establishing the negligence on the part of the driver of the offending vehicle is concerned.
9. It will appear from the objects and reasons of introduction of Chapter VII-A in 19.39 Act that for securing the compensation of a specified amount, it will not be necessary to prove any wrongful act or negligence on the part of the owner of the vehicle; the right to claim the compensation aforesaid is without prejudice to the right to claim the higher compensation on the basis of the wrongful act or negligence of the owner or the driver of the vehicle. In order to meet, to some extent, the responsibility of the owner of the vehicle for the deaths and injuries, there has been a view throughout the world to make the liability for damages arising out of motor vehicle accident as a liability without fault. In order to meet the above social demand Chapter VII-A was introduced. Present Section 140 is really in substance Section 92-A of the former Act excepting the fixed amount of compensation. There is no doubt that Section 140 fulfils an urgent need and it is a beneficial legislation to benefit the persons who suffer either death or permanent disablement because of an accident involving a motor vehicle. Such accidents are rampant nowadays on the roads in India. Section 140 no doubt fulfils an urgent social need. In a decision reported in Lakshmi Narayan Gain v. Niranjan Modak AIR 1985 SC 111, the court observed that a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties relying on the observation of the Supreme Court in Dayawati v. Inderjit AIR 1966 SC 1423, “If the new law speaks in language, which expressly or by clear intendment takes in even pending matters the court of trial as well as the court of appeal must take note of an intention so expressed and the court of appeal may give effect to such a law even after the judgment of the court of first instance.” This particular piece of legislation having been enacted to advance social cause and provisions relating to procedure having been made to obviate the difficulties being faced by a common litigant, we must construe that this section is retrospective in so far as it applies to the pending proceeding before the Tribunal or in appeal. Accordingly, in our view Section 140 is attracted to the present case as well.
10. In the instant case PW 1, S.K. Sinha, an A.S.I. of Police attached to Lalbazar, proved the fact that lorry bearing No. WBL 5852 knocked down one Ajit Ghosh who died on the spot. It also named the driver of the lorry. In cross-examination, he stated that he has no personal knowledge. PW 2 was Basanti Rani Ghosh. She claimed that Ajit Ghosh, the victim, was her son. Evidence adduced firmly established that Ajit Ghosh died as a result of a motor accident involving WBL 5852 and the principle can very well be applied to receive compensation for the death of her son.
11. Accordingly, we allow the appeal and set aside the impugned judgment and order -passed by the learned Tribunal and direct the respondents to pay a compensation of Rs. 25,000/- to the appellant minus and amount if paid in the meantime. In the special facts of the case we do not award any interest No decree need be drawn up. Let a xerox copy of this judgment be given to the learned advocates for the parties, on their complying with the usual formalities in this regard.
Siba Prasad Rajkhowa, J.
12. I agree.