Judgment:
H.R. Panwar, J.
1. These appeals involve common question of law and facts arising out of same accident and, therefore, for convenience, they are disposed of by a common judgment.
2. Pulise Mallah, Firoz Devan, Abdul Hakim, Yusuf and Barkat met with an accident on 10.5.1993 arising out of use of a motor vehicle Truck No. RJ-12-G 152. These persons sustained injuries and ultimately succumbed to the injuries and as such death of aforesaid persons resulted due to motor vehicle accident arising out of use of motor vehicle. The legal representatives of the deceased persons filed separate claim petitions before Motor Accident Claims Tribunal, Bhilwara (hereinafter referred to as 'the Tribunal') claiming compensation under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') on the principle of 'no fault liability' as well as under Section 166 of the Act on the principle of 'fault liability'. By judgments and awards impugned dt. 13.11.2000, the Tribunal awarded a sum of Rs. 50,000/- in each case interim compensation under Section 140 of the Act on the principle of 'no fault liability' and held the insurance company liable.
3. I have heard learned Counsel for the parties. Perused the awards impugned.
4. learned Counsel for the appellant submits that the said accident occurred on 10.5.1993 and the compensation payable on the principle of 'no fault liability' in case of death as envisaged under Section 140 of the Act before its amendment, was Rs. 25,000/- in each case. He further submits that the amount of Rs. 25,000/- has been enhanced to Rs. 50,000/- by Amendment Act No. 54 of 1994 which came into force from 14.11.1994. He further submits that Amendment Act No. 54 of 1994 is not retrospective in operation and, therefore, the accident which took place prior to coming into force of the Amendment Act, compensation payable on the principle of 'no fault liability' was Rs. 25,000/- only. Undisputebly, the said accident occurred on 15.5.1993. By Sub-section (2) of Section 140 of the Act the amount of compensation of Rs. 25,000/- was increased to Rs. 50,000/- in case of death on the principle of 'no fault liability' w.e.f. 14.11.1994 and the operation of the said amendment was not given retrospective effect and as such, for the accident resulting in death prior to coming into force of the Amendment Act, Rs. 50,000/- as compensation could not have been awarded. Thus, the contention of the learned Counsel for the appellant in this regard deserves to be accepted and the compensation of Rs. 50,000/- awarded by the Tribunal is liable to be reduced to Rs. 25,000/-. Compensation payable under Section 140 of the Act was Rs. 25,000/- in each case.
5. In National Insurance Company v. Heera and Ors., RLW 1999 (1) (Raj.) 368, this Court held as under:
The amendment to Sub-section (2) of Section 140 of the Act is not a procedural law but it is substantive law which affects rights, obligations and liabilities already accrued to the owners of the vehicles and the claimants qua insurer on the date of accident.
6. It was further held that the said amendment cannot be given retrospective effect. Reliance was also placed on a judgment of the Hon'ble Supreme Court in Padma Srinivasan v. Premier Insurance Co. Ltd., : [1982]3SCR244 .
7. It is contended by the learned Counsel of the appellant that the insured has committed breach of policy and, therefore, the appellant Insurance Company cannot be held liable.
8. learned Counsel for the respondents submits that the compensation awarded by the Tribunal on the principle of 'no fault liability' and the defences, if any, available to the appellant insurance company has to be pleaded and proved by evidence which yet to be recorded as the claims filed on the basis of 'fault liability' under Section 166 of the Act are yet to be adjudicated. To award compensation on the principle of 'no fault liability', the Tribunal is first required to satisfy that the death has occurred due to accident arising out of use of a motor vehicle, owner or insurer, as the case may be, shall be jointly and severally liable to pay compensation in respect of such death in accordance with the provisions of Sub-section (2) of Section 140 of the Act.
9. Chapter X of the act provides Liability without fault in certain cases. Section 140 of the Act provides liability to pay compensation in certain cases on the principle of no fault. Sub-section (1) of Section 140 provides that 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. Sub-section (2) of Section 140 of the Act provides that 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 as it was applicable prior is Amendment Act No. Sub-section (3) of Section 140 of the Act provides that 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. Sub-section (4) of Section 140 of the Act provides that 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. Thus, while making the award under Chapter X of the Act, the Tribunal is required to satisfy that the death or permanent disablement of any person has resulted from an accident arising out of the use of motor vehicle or vehicles, owner of the vehicle or insurer, as the case may be, shall be liable to pay fixed amount as provided under Sub-section (2) of Section 140 of the Act. The claim of compensation for death or permanent disablement has to be disbursed expeditiously.
10. The provision for providing interim compensation on the principle of 'no fault liability' under chapter X of the Act clearly intends that in the event of death arising out of use of motor vehicle, legal representatives of the deceased persons must be paid compensation expeditiously and for that reason, under Section V of the Act, the claim is not required to be adjudicated like the claim filed under Section 166 of the Act on the principle of 'fault liability'. Defences, if any, available to the appellant insurance company can only be raised in the claim petition under Section 166 of the Act on the principle of 'fault liability' by joining the issue. The Tribunal after framing proper issues and recording evidence of the parties can only come to the conclusion with regard to the terms and condition of the policy and not otherwise.
11. Section 144 of the Act of Chapter X provides overriding effect. The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force. Thus, Section 144 overrides effect of any other provision of the Act including defence provided to the insurance company under Section 149(2) of the Act. Thus, the claim under Section 140 of the Act cannot be defeated by the insurer with the aid of the provisions of Section 149(2) of the Act.
12. Thus, from the provisions of Chapter X of the Act, it is clear that Section 144 of the Act has overriding effect on any other provision of the Act or any other law for the time being in force. So far as quantum of compensation awarded is concerned, it is Rs. 25,000/- and not Rs. 50,000/-. I have taken a similar view in New India Insurance Company v. Lola Ram and Ors., RLW 2001 (3) Raj. 1564.
13. In view of the aforesaid discussion, these appeals are partly allowed and the award of interim compensation passed by the Tribunal awarding Rs. 50,000/- to the respondent claimants of each deceased person under Section 140 of the Act is hereby reduced to Rs. 25,000/-. No order as to costs.