Case: Prakash Chandumal Khatri Vs. Suresh Pahilajrai Makhija

the Tribunal on the date of coming into operation of 1988 Act.7. Shri Agrawal invited our attention to the decision of single Judge reported in AIR 1986 Bombay 280 (Oriental Fire and General Insurance Co. Ltd., Goa v. Aleixo Fernandes) where it was held that the provisions of Section 92A of 1939 Act are retrospective in operation. The correctness of the decision of the single Judge was doubted by Division Bench of this Court in a judgment reported in AIR 1989 Bombay 325 (Indarjeet Singh and Co. v. Kamal Prakash Pawar). In our judgment, the conclusion of the single Judge that the provisions of Section 92A of 1939 Act were retrospective in nature is clearly erroneous. The liability to pay compensation on the doctrine of no fault liability can accrue only on the date of accident and in case the statutory provisions for payment of such compensation were not available on the date of the accident then the claimant cannot seek relief on that count. The issue is no longer res integra in view of the decision of the Supreme Court, reported in 1990 (1) Supreme Court Cases 356 (R. L. Gupta v. Jupitor General Insurance Company) where Mr. Justice Ranganath Misra, as he then was, speaking for the Bench observed that the compensation under the principle of no fault liability provided by the statute is prospective in operation. In our judgment, the reliance by Shri Agrawal on the decision of the single Judge is not correct and the decision relied upon is no longer a good law. Shri Agrawal placed strong reliance upon the decision of the Division Bench of Kerala High Court reported in 1990 Accidents Claims Journal 751 (United India Insurance Co. Ltd. v. Padmavathy) where Kerala High Court held that provisions of Section 140 of 1988 Act have retrospective application and the claimant is entitled to demand additional compensation than one prescribed under Section 92A of 1939 Act. The Kerala High Court was impressed by the fact that though Section 140 did not create a fresh right, it provided for enhancement of compensation due to errosion of value of currency and inflation in prices and costs. The Kerala High Court felt that the Parliament had retained the same right which has been conferred on the victim under Section 92A of 1939 Act but enhanced the compensation amount to make the right realistic. With respect, the Kerala High Court was right in observing that the Parliament increased the amount of compensation under the principle of no fault liability because of erosion of value of currency but we are unable to share the view that the said fact is enough to warrant the conclusion that the liability to pay enhanced compensation is retrospective in operation. With respect, such a view overlooks that the right and the corresponding liability accrues on the date of accident and that cause of action cannot be made dependent upon the legislative changes which may be effected during the pendency of the proceedings for seeking compensation. The liability is crystallised the moment the accident takes place and the person discharging the liability knows the quantum of compensation payable. The mere fact that such a compensation is not paid on the date of the accident or the application seeking compensation remains pending till the date of amendment of legislative provision prescribing enhanced compensation, cannot alter or impose additional liability or create any new right to demand additional compensation. We are, therefore, unable to agree with the view taken by the Kerala High Court.8. Shri Agrawal referred to the provisions of Section 144 of 1988 Act arid urged that the Section prescribes that the provisions of Chapter X shall have effect notwithstanding contained in any of the provisions of the Act or of any other Act for the time being in force. The learned counsel urged that Section 144 indicates that the liability to pay compensation at the rate prescribed under sub-section (2) of Section 140 must prevail over any of the provisions of any other law and that includes provisions of Section 92A of 1939 Act. It is not possible to accede to the submission because Section 144 does not take in its sweep the provisions of 1939 Act. An identical provision as Section 144 was enacted under Section 92E of 1939 Act and, in our judgment, both Section 92E and Section 144 referred to the right to claim compensation under any of the provisions of the Act or any other law for the time being in force and this right is independent of right to claim compensation on the principle of no fault liability. It would be appropriate to make reference to the provisions of Section 6(6) of the General Clauses Act, 1897 which, inter alia, provides that where any Central Act is repealed, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It is, therefore, obvious that the liability accrued during the operation of the Act of 1939 cannot be increased by reference to the provisions of sub-section (2) of Section 140 of 1988 Act as the said Act does not specifically or even by implication provides that the enhanced compensation is available even in respect of liability accrued under the repealed Act. In our judgment, the Tribunal was right in concluding that the appellants are entitled to compensation of only Rs. 15,000/- under no fault liability. Shri Agrawal submitted that the tribunal provided that in case the amount is not paid, within two weeks from the date of the, order, then the respondents shall pay interest at the rate of 12% per annum from the date of order till realisation. The learned counsel urged and, in our judgment, rightly that the interest should be made payable on the amount of Rs. 15,000/- right from the date of filing application for compensation i.e. December 17, 1988 and that modification is required in the order appealed against.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The right to receive compensation on the principle of no fault liability and the corresponding liability accrues on the date of the accident and is not made dependent on the legislative changes that may take place during the pendency of the application seeking compensation. In our judgment, on the first principle, it is not possible to accede to in the submission of Shri Agrawal that the provisions ofsubsection (2) of Section140 of the Act are retrospective in operation and would cover all the cases which are pending before the Tribunal on the date of coming into operation of 1988are, therefore, unable to agree with the view taken by the Kerala High Court.8. Shri Agrawal referred to the provisions of Section 144 of 1988 Act arid urged that the Section prescribes that the provisions of Chapter X shall have effect notwithstanding contained in any of the provisions of the Act or of any other Act for the time being in force. The learned counsel urged that Section 144 indicates that the liability to pay compensation at the rate prescribed undersubsection (2) of Section140 must prevail over any of the provisions of any other law and that includes provisions of Section 92A of 1939 Act. It is not possible to accede to the submission because Section 144 does not take in its sweep the provisions of 1939 Act. An identical provision as Section 144 was enacted under Section 92E of 1939 Act and, in our judgment, both Section 92E and Section 144 referred to the right to claim compensation under any of the provisions of the Act or any other law for the time being in force and this right is independent of right to claim compensation on the principle of no fault liability. It would be appropriate to make reference to the provisions of Section 6(6) of the General Clauses Act, 1897 which, inter alia, provides that where any Central Act is repealed, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It is, therefore, obvious that the liability accrued during the operation of the Act of 1939 cannot be increased by reference to the provisions ofsubsection (2) of Section140 of 1988 Act as the said Act does not specifically or even by implication provides that the enhanced compensation is available even in respect of liability accrued under the repealed Act. In our judgment, the Tribunal was right in concluding that the appellants are entitled to compensation of only Rs. 15,000/under no fault liability. Shri Agrawal submitted that the tribunal provided that in case the amount is not paid, within two weeks from the date of the, order, then the respondents shall pay interest at the rate of 12% per annum from the date of order till realisation. The learned counsel urged and, in our judgment, rightly that the interest should be made payable on the amount of Rs. 15,000/right from the date of filing application for compensation i.e. December 17, 1988 and that modification is required in the order appealed against.