Judgment:
Syed Bashir-Ud-Din, J.
1. On Uri-Baramulla Road at Dandanakhan Sheeri passenger bus No. JKO 726 while plying on road on 7.6.1989, met a fatal accident when boulder(s) struck the vehicle and the vehicle was flung into nalla, resulting in deaths and injuries to a number of passengers. The respective heirs of the dead passengers filed claim petitions before Motor Accidents Claims Tribunal (District and Sessions Judge), Baramulla. Simultaneously with the main claim petitions applications for interim award were also filed. The Tribunal on 16.6.1997, ordered the payment of interim award of Rs. 25,000 in favour of the heirs of the deceased passengers to be shared by the insurance company and owner of the vehicle in the ratio of 3:2. In other words sums of Rs. 15,000 and Rs. 10,000 were to be borne by insurance company and owner respectively. Payment of this Rs. 10,000 part of the interim award by the owner has been challenged in appeal before this court. The orders providing interim award to the heirs of the deceased in terms as above, have been challenged by the appellants, in number of appeals which have been clubbed and heard together in so far as common question of fact and law is involved in all these cases and a common judgment/decision would govern all the cases.
2. After hearing the counsel for the parties, this court vide its order dated 19.2.98 found all the appeals against the interim awards, as incompetent, but treated the appeals, for reasons recorded thereto, as revisions. At the request of the counsel for the parties, the notice to the other heirs of each victim in all the cases have been dispensed with.
3. The matter has been heard and record examined. The facts and circumstances necessary for our purposes, which merit to be taken note of with brevity, are reproduced as below:
The passenger bus No. JKO 726 which was overloaded with passengers while travelling from Baramulla to Malapora, met with an accident at Dandanakhan Sheeri. The cause of accident was that heavy stones and boulder(s) rolled down the slopes and struck the bus. With the result that on account of impact of striking stones and boulders, the bus was thrown off the road down below resulting in death and injury to a number of passengers. The bus is covered by the insurance cover. The insurance policy has been issued by United Insurance sic New India Assurance Co. Ltd. The heirs of the deceased passengers as well as the injured filed claim petitions before the M.A.C.T. at Baramulla. Alongside applications for interim award were also moved. The M.A.C.T. (learned District and Sessions Judge), Baramulla on examination of the matter allowed the applications and amount of Rs. 25,000 was awarded by way of interim relief to the heirs of each deceased passenger with the rider, that out of this amount insurance company will pay Rs. 15,000 and rest of the amount of Rs. 10,000 shall be paid by the owner of the vehicle. This was so as the Tribunal was of the opinion that the liability of the insurance company was limited and covered only to the extent of Rs. 15,000. The insurance company and the owner were directed to pay the amount with interest. This amount of Rs. 25,000 has been awarded under Section 140 of the Motor Vehicles Act, 1988.
4. The counsel for the revision petitioner submits that this case is covered by Section 92-A of Motor Vehicles Act, 1939 in so far as the accident has occurred on 7.6.1989, and not under Section 140 of the Motor Vehicles Act, 1988 which came into force w.e.f. 1.7.1989. He has cited Oriental Insurance Co. Ltd. v. Sheela Ratnan 1996 ACJ 1298 (Kerala), in support of his submission that Act of 1988 is only prospectively operable and has no retrospective operation. The accident having taken place at a time when Act of 1939 was in operation, therefore, under Section 92-A of Act of 1939, the interim award in case of death which the Tribunal was empowered to award was Rs. 15,000 only and not Rs. 25,000 as provided by the Act of 1988.
5. In Oriental Insurance Co. Ltd. v. Sheela Ratnan 1996 ACJ 1298 (Kerala), the court after analysing the case law on the subject of prospectivity/retrospectivity of application of provisions of Section 140 of Motor Vehicles Act, 1988, as amended by Act 54 of 1994, held that Act of 1988, the repealing Act, cannot be made applicable to claim put forward on the basis of an accident, which took place on a date before the repealing Act of 1988 came into force. Right accrues and liability is incurred for compensation (interim or otherwise) on date of accident and not date of consideration of claim.
6. Provisions of Section 140 of Act of 1988 corresponding to Section 92-A of Act of 1939 are not retrospective in application. The provisions of Section 92-A of the Act of 1939 are applicable in case of death arising out of an accident occurring before 1.7.1989 when the Act of 1988 was enforced. Section 92-A of Act of 1939 is essentially part of substantive law, which does not lay down any rule of procedure or evidence. It appears that the different provisions of the amended Act of 1988 commenced on different dates. When the amending Act gave different dates of commencement of different sections the presumption of prospectivity, as against retrospectivity, has to be preferred.
7. The accident having occurred prior to the date when the Act of 1988 came into force, award of interim compensation of Rs. 25,000 under Section 140 of the Act of 1988 is not correct. Section 140 of the Act of 1988 could not be made applicable to this case and the claimants' case for award of interim compensation, awarded on 'no fault liability basis' has to be judged on the provisions of Section 92-A of the Act of 1939.
8. The counsel for the insurance company after initial reticence concedes fairly this legal position. Once it is held that the interim compensation on no fault basis has to be adjudged as per the provisions of Section 92-A of the Act of 1939, the interim compensation which could have been awarded to the heirs of a deceased passenger, 'on no fault liability basis', in this case is Rs. 15,000 and not Rs. 25,000. The amount of Rs. 15,000 has been already awarded on no fault basis against the insurance company by the learned Presiding Officer of the Tribunal which part of the order has to be maintained. The other part of the impugned order of awarding further Rs. 10,000 in favour of the heirs of the deceased victim against the owner of the vehicle involved in the accident has to be set aside in so far as the liability for this amount as interim award on no fault basis is non-existent under the applicable law as on the date of the accident. The total amount which could have been sanctioned as interim compensation and the total liability for such interim compensation was fixed at Rs. 15,000 in case of death under Section 92-A of the Act of 1939. Therefore, any amount awarded as interim compensation in excess of this amount is without any legal basis and not covered by the law. The M.A.C.T. has taken an erroneous view of the applicable law and thereby applied the provisions of law not applicable to this case. Obviously, learned Presiding Officer of the Motor Accidents Claims Tribunal committed an error and failed to exercise its vested jurisdiction besides committing material irregularity, in exercise of jurisdiction.
9. With the result that the impugned order of the Tribunal is modified and set aside to the extent of award of Rs. 10,000 as compensation against the owner of the vehicle involved in the accident, resulting in death of the passengers leaving the question of inter se liability and its extent vis-a-vis the award to be determined between the insurance company and owner of the vehicle by the M.A.C.T. (or any other available forum under law) at the time of final decision. The question at this stage is left wide open, to be determined while awarding compensation, if any, finally. In all other respects the interim award of M.A.C.T., Baramulla, is maintained. The learned Presiding Officer of the Motor Accidents Claims Tribunal (District and Sessions Judge), Baramulla, shall do well to proceed to determine the claim for compensation of the claimants, now pending for last over eight years. The claims be processed, finalised and decided in terms of applicable law with expeditious despatch.