JUDGMENT
Rama Jois, J.
1. In these three appeals presented under Section 110 — D of the Motor Vehicles Act, 1939, the following common question of law arises for consideration:
Whether the No Fault Liability in the case of death caused by a motor accident, is Rs. 15,000/- as fixed in Section 92A of the 1939 Act which was in force on the date of accident, which gave rise to the claim petitions out of which these appeals arise, or Rs. 25,000/- as fixed in Section 140 of the Motor Vehicles Act, 1988, which came into force on 1-7-1989, which was in force on the date on which the Tribunal made the orders?
2. These appeals have come up for orders and by consent of the learned Counsel appearing for the parties, they have been taken up for final hearing and are disposed of by this common order.
3. Brief facts of the case are these:-
(a) M.F.A. No. 189611990:- The accident which resulted in the death of the deceased took place on 25-5-1989. The claim petition was filed on 9-6-1989. In the claim petition, an interim award in respect of No Fault Liability as required to be made under Section 92A of the Motor Vehicles Act, 1939, was sought for. When this matter was pending, on 1-7-1989 Motor Vehicles Act, 1988 came into force. Section 140 of 1988 Act is the corresponding provision to Section 92A of the 1939 Act. under Section 140 No Fault Liability in the case of death is fixed at Rs. 25,000/- After 1988 Act came into force, an order , was made by the Tribunal on 19-6-1990 awarding interim compensation of Rs. 15,000/-under Section 92A of the 1939 Act. Aggrieved by the said order, contending that compensation of Rs. 20.000/- should have been awarded as No Fault Liability under Section 140 of the 1988 Act, as it had already come into force on 1-7-1989, this appeal is presented by the claimants.
(b) M.F.A. No. 2080/1989:- The accident which resulted in the death of the deceased took place on 23-9-1988. The interim award on the ground of No Fault Liability was made on 28-8-1989 and the Tribunal held that the amount of No Fault Liability payable was Rs. 25,000/- under Sectioni40 of the 1988 Act, as the said Act had come into force prior to the date of passing of the interim award. Aggrieved by the said order, the Insurance Company has presented the appeal.
(c) M.F.A. No. 716/1990:- In this case the accident which resulted in the death of the deceased took place on 31-1-1989. The claim petition was presented on 3-2-1989. The Tribunal held, as regards No Fault Liability it was only Rs. 15,000/- under Section 92A of the 1939 Act, as that was the Act which was in force on the date of accident. Aggrieved by the order of the Tribunal, the claimants have presented the appeal contending that as Section 140 of 1988 Act had already come into force prior to the date of making of the interim award, the compensation of Rs. 25,000/- should have been awarded under Section 140 of the 1988 Act. It is in these circumstances, the question set out earlier arises for consideration.
4. For the first time, Section 92A was introduced into the 1939 Act creating No Fault Liability. The said Section reads:-
LIABILITY TO PAY COMPENSATION IN CERTAIN CASES ON THE PRINCIPLE OF NO FAULT: 92A.
(1) Where the 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 fifteen thousand rupees 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 seven thousand five hundred rupees.
(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 on 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 dealhor permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
As can be seen from the above provision in a claim petition presented under Section 110A of the Act once the involvement of the vehicle concerned in the accident which resulted in the death of the deceased is established, the owner of the vehicle becomes liable to pay a sum of Rs. 15,000/- to the claimant irrespective of the existence or otherwise of the negligence on the part of the driver of the vehicle. The said liability is also extended to the insurer if the vehicle concerned was insured and the risk concerned was covered by the Insurance Policy. In all the three cases, there is no dispute that on the date the accident took place, it was Section 92A of the 1939 Act which was in force.
5. The Motor Vehicles Act, 1988 was brought into force with effect from 1-7-1989. By Section 217 of the said Act the 1939 Act was repealed. Section 140 of the 1988 Act is the corresponding Section 92A of the 1939 Act. The said Section reads:
140. LIABILITY TO PAY COMPENSATION IN CERTAIN CASES ON
THE PRINCIPLE OF NO FAULT —
(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 vehicle 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 twenty-five thousand rupees 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 twelve thousand rupees.
(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 for such death or permanent disablement.
6. Section 140 also incorporates the ‘No Fault Liability’, the quantum of compensation payable, however, is enhanced from Rs. 15,000/- to Rs. 25,000/- in the case of death and from Rs.7,500/- in the case of permanent disablement to Rs. 12,000/-. The question for consideration is whether compensation could be awarded at the/ate prescribed under Section 140 of the 1988 Act on the ground that the said Section had come into force prior to the date on which the award was made.
7. The learned Counsel for the appellants in M.F. A. No. 716 of 1990 contended that the amount of compensation which could be awarded for No Fault Liability on and after 1.7.1989 on which date the 1988 Act came into force was the amount prescribed in Section 140 of the Act and therefore the Tribunal was not justified in awarding compensation of Rs. 15,000/- only applying Section 92A of the 1939 Act. In support of his contention the learned Counsel relied on Section 217 of the 1988 Act. The relevant portion of Section reads:
217. REPEAL AND SAVINGS:- (1) The Motor Vehicles Act, 1939 (4 of 1939) and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this Section referred to as the repealed enactments) are hereby repealed.
(2) Notwithstanding the repeal by sub — section (1) of the repealed enactments:
(a) any notification, rule, regulation, order or notice issued, or any appointment or declaration made, or exemption granted, or any confiscation made, or any penalty or fine imposed, any for feature, cancellation or any other thing done, or any other action taken under the repealed enactments, and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been issued, made granted, done or taken under the corresponding provision of this Act;
xxx xxx xxx
(4) The mention of particular matters in this section shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
8. The learned Counsel for the claimants submitted that in view of Section 217 (2) claim petitions presented under Section 110A of the 1939 Act and the claim for interim compensation made under Section 92A of the 1939 Act has to be regarded as claims under the 1988 Act and consequently claimants are entitled to compensation at the rate fixed in Section 140 of the 1988 Act. The contention is M/s conceived, Section 217 (a) only saved statutory notifications and orders and actions already made or taken under the 1939 Act by the authorities acting under the 1939 Act, subject to the same not being inconsistent with the provisions of the 1988 Act. To illustrate what it means is an award passed under the 1939 Act is enforceable even after the new Act came into force. But as far as the liability incurred under Section 92A of the 1939 Act is concerned the provision which is relevant Clause (4) of Section 217. As can be seen from Sub-section (4) of Section 217 of the 1988 Act, Section 6 of the General Clauses Act is made applicable, in respect of matters not expressly mentioned in Section 217 of the 1988 Act. Section 6 of the General Clauses Act reads:-
6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or here after to be made, then, unless a different intention appears, the repeal shall not –
(a) revive any thing not in force or existing at the time at which the repeal lakes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under ; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
A reading of Section 6 (c) of the General Clauses Act indicates that the repeal of the 1939 Act does not affect any liability incurred under the repealed enactment. Further, in view of Section 6(e) of the General Clauses Act any legal proceedings which had been initiated under the 1939 Act continues as if the repealing Act. i.e. 1988 Act had not been passed. Therefore it is clear a claim petition under Section 110-Aof the 1939 Act, has to be decided as if the 1939 Act had not been repealed. From this it follows, the liability to pay compensation on the ground of no fault which had been incurred on the date of the accident remains unaffected and could be enforced in a legal proceeding instituted under Section 110-A of the 1939 Act, even after the 1988 Act came into force.
9. The learned Counsel for the Insurance Company submitted that the principle applicable in a case of this type is that the liability has to be determined with reference to the law which was in force as on the date on which the accident took place i.e., the dale on which the liability was incurred or the cause of action arose. In support of this contention, the learned Counsel relied on the judgment of the Supreme Court in the case of Padma Srinivasan v. Premier Insurance Co. Ltd. . In the said case, the question for consideration was, whether the liability of the Insurance Company depended upon the policy of insurance which had been issued in conformity with the liability imposed under Section 95 (2) of the Motor Vehicles Act which was in force on the date of issue of the policy or whether the liability of the Insurance Company was according to the amended provision which had come into force before the date of accident and during the period when the insurance policy issued earlier was in force. The Supreme Court held that the liability of the Insurance Company has to be determined with reference to the legal provision as it Stood on the date of the accident. The relevant facts set out in paragraph — 5 of the judgment reads:-
The question which arises for consideration is whether the insurer’s liability for third party risks under the statutory policy must be held to be limited to Rs. 20,000/- according to the relevant legal provision as it existed on the date on which the policy came into force or, whether, that liability can be extended to Rs. 30,000/- in accordance with the legal provision as it stood on the date of the accident, the accident having occurred during the currency of the policy. The relevant dates which have to be borne, in mind in this behalf are these: The insurance policy came into force on June 30,1969 and covered the period from June 30,1969 to June 29,1970; the amendment by which the statutory liability of the insurer was increased from Rs. 20,000/-to Rs. 50,000/- came into force on March 2,1970; and the accident which gave rise to these proceedings occurred on April 5, 1970.
As can be seen from the above paragraph, according to Section 95 (2) of the Motor Vehicles Act, the Insurance Company had issued an insurance policy on 30th June, 1969 upto the period ending 29th June 1970. During this period Section 95 was amended and the amended provision came into force from 2nd March 1970 and according to the amended provision, the liability of the Insurance Company was enhanced to Rs. 50,000/- The accident which gave rise to the claim petition in that case occurred on 5th April, 1970 i.e. after the amendment of Section 95 (2) by which date the liability of the Insurance Company had been increased to Rs. 50,000/- The stand of the Insurance Company was that as they had already issued the policy and under that they had covered the liability only to the extent of Rs, 20,000/- the subsequent change of law did not result in increasing their liability. Whereas the stand taken by the claimant was that though the liability of the Insurance, Company was Rs. 20,000/- under the policy as the policy was issued only in conformity with Section 95 (2) of the Act on the date when the policy was issued and Section 95(2) was amended with effect from 2-3-1970, and according to the amended provision, the liability of the Insurance Company was Rs. 50,000/- the liability imposed by the Act prevails over the insurance policy.
10. The Supreme Court upheld the contention of the claimant. In doing so, the principle laid down by the Supreme Court was that, in order to find out the liability of the Insurance Company one should find out as to what was the liability under the law on the date of the accident. In our opinion, the above ratio applies on all fours to the question arising for consideration in these cases. There fore, what we have to find out is, what was the provision of law which was in force on the date of the accident, which also happens to be the date of cause of action, On this question there is no dispute at all. It is common ground that it is the date of accident which gave rise to the claim petitions out of which the above appeals arise before us and on that date Section 95 (2) of the 1939 Act was in force. Therefore, No Fault Liability of the owner of the vehicle as well as of the insurer concerned was Rs. 15,000/-according to Section 92A of the said Act. Section 140 of the 1988 Act came into force only on 1-7-1989 subsequent to the date of accident. The enhanced compensation of Rs. 25,000/ – in the case of death as No Fault Liability payable under Section 140 of the 1988 Act would apply only in respect of accidents which have taken place on or after 1-7-1989 and not before that date.
11. The learned Counsel for the appellants in M.F.A. No. l896of 1990 and M.F.A-No 716 of 1990 relied on the judgment of the Supreme Court in Lakshmi Narayan Guin v. Niranjan Modak in support of his contention that any change in the law which had taken place during the pendency of the appeal has to be taken into account. The case arose out of the West Bangal Premises Tenancy Act. Section 13 of the said Act provided that no order or decree for the recovery of possession shall be made by any Court in a landlord’s suit for eviction against a tenant except on certain enumerated grounds. Though the area in which the premises concerned in that case was not covered by the provisions of the Act, when the matter was pending before the trial Court, during the pendency of the appeal the Act was extended to the area concerned. The Supreme Court held that Section 13 of that Act which prohibited passing of decree of eviction against a tenant except on the enumerated grounds applied not only to decree to be passed by a trial Court but also to a decree to be passed by an Appellate Court as the appeal was continuation of the suit. On this principle the Supreme Court held though extension of the Rent Control Act to the area took place during the pendency of the appeal as the embargo placed on the passing of a decree for eviction against a tenant applied to the Appellate Court also, the Legislative command operated as jurisdictional bar on the Appellate Court also. In our opinion, the ratio of the said decision is not at all apposite to the question arising for consideration in these cases. On the other hand, the ratio of the decision in Padma Srinivasan’s case (supra) in which the Supreme Court has clearly laid down that liability of the insurer would depend upon the legal provision as it stood on the date of the accident applies to these cases. Further this is a case in which the repealing enactment has expressly made Section 6 of the General Clauses Act applicable, which saves the rights and liabilities under the repealed law. There is nothing in the provision of Section 217 or any other provision in the 1988 Act which increases the No Fault Liability of the owner or of the insurer with retrospective effect. When the Legislature has not chosen to enhance the liability in respect of cases instituted under the 1939 Act, it is not permissible to increase the liability by interpretation.
12. The learned Counsel for the appellants in the two appeals relied on the Judgment of the Bombay High Court in Oriental Fire & General Insurance Co. Ltd. v. Smt. Shantabai S. Dhume AIR 1987 Bombay 52. In the said decision, the Bombay High Court relying on the judgment of the Supreme Court in Lakshmi Narayan Guin (supra) held that No Fault Liability according to Section 95 (2) of the 1939 Act applies even to accidents which had taken place prior to the coming into force of Section 92-A with effect from 1-10-1982. As explained by us earlier, the ratio of the decision of the Supreme Court in Laxmi Narayan Guin (supra) is inapposite to the question of law arising for consideration in this case. On the other hand, the ratio of the decision of the Supreme Court in Padma Srinivasan (supra) fully covers the question of law arising for decision in this case. The said decision was not brought to the notice of the learned judge of the Bombay High Court. With great respect we are unable to agree with the view that the No Fault Liability created under Section 92A applies to accidents which took place prior to the date on which the said Section came into force, when the Parliament has not chosen to give retrospective effect to Section 92A of the 1939 Act. Therefore, we are unable to agree with the principle laid down in the said case which makes the quantum of No Fault Liability fixed under Section 140 of the 1988 Act applicable to all pending cases which means not only cases arising out of accidents which have taken place after Section 92A came into force, but also to accidents which took place prior to the date on which Section 92A of the Act came into force.
13. In the result, we answer the question set out first as follows:
No Fault Liability in the case of death caused by a motor accident is Rs. 15,000/- as fixed in Section 92A of the Motor Vehicles Act, 1939 which was in force on the date of the accident, which gave rise to the claim petitions, out of which the appeals arise and not Rs. 25,000/-as fixed in Section 140 of the Motor Vehicles Act, 1988, which came into force on 1 -7-1989 i.e., subsequent to the dale of accident merely because that Section was in force on the date on which the Tribunal made the order.
14. In the result, we make the following order:
(a) M.F.A.No.1896/1990:-
(i) The Appeal is dismissed.
(ii) Sri S.P. shankar, learned Standing Counsel for the 2nd respondent is permitted to file his Vakalath for the Insurance Company within 2 weeks.
(b) M.F.A. No. 2080/1989:-
(i) The Appeal is allowed.
(ii) The interim award made by the Tribunal is modified, in that the compensation is reduced from Rs. 25,000/- to Rs. 15,000/-.
(c) M.F.A .No. 716/1990:-
(i) The Appeal is dismissed.
(ii) Sri C.K. Kambeyanda, learned Counsel for respondent — 2 is permitted to file his vakalath within 2 weeks.
