Smt. Ramwati vs Sh. Yamin And Ors.
2006 Latest Caselaw 830 Del

JUDGMENT

Sanjiv Khanna, J.

Page 1917

1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act, for short) has been filed by Mrs. Ramwati-claimant for enhancement of compensation. As per the findings of the learned Tribunal, the appellant Mrs. Ramwati lost her husband aged 72 years in a motor accident on being hit by a truck bearing No. UP 15-2015 on 26th November, 1990. At that time the appellant's husband, Mr. Ranbir Singh was going on foot to get milk for the family.

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2. As the age of the deceased was 72 years at the time of his death, learned Tribunal has awarded compensation of Rs. 31,680/- towards loss of dependency. In addition, learned Tribunal has awarded Rs. 2000/- towards loss of consortium and Rs. 1000/- towards funeral charges. The total compensation was rounded to Rs. 35,000/-.

3. Learned Counsel for the appellant relied upon Section 140 of the Act and submitted that minimum compensation in case of no fault liability was enhanced from Rs. 25,000/- to Rs. 50,000/- with effect from 14th November, 1994. It was submitted that the appellant was entitled to benefit of this amendment. It was also submitted that the amendment was retrospective and applied to all pending proceedings regardless of the date of death or the date of the accident. In this regard he relied upon Khatoonbi and Ors. v. Privipalsingh and Anr. (1999) 2 ACC 202. Learned Counsel appearing for the insurance company, on the other hand, argued to the contrary and relied upon two judgments of the Supreme Court in the case of Padma Srinivasan v. Premier Insurance Company Limited and Kerala State Electricity Board and Anr. v. Valsala K. and Anr. .

4. To decide the controversy, some dates may be noticed. The deceased, Mr. Ranbir Singh expired on 26th November, 1990. He was at the time of his death 72 years old. At that time under Section 140 of the Act, compensation payable was Rs. 25,000/-. Section 140 was amended by Act, 54 of 1994 with effect from 14th November, 1994 and the compensation payable under the said Section was enhanced to Rs. 50,000/-. The award deciding the claim petition was made on 1st September, 2000 i.e. after compensation payable under Section 140 of the Act was enhanced to Rs. 50,000/-.

5. The question of quantum of compensation payable in cases of death under various enactments has been considered and examined by the Supreme Court in several cases. In Rathi Menon v. Union of India , the Supreme Court examined the question of compensation payable under the provisions of the Railways Act, 1989 with reference to Section 124A that was introduced by Railway (Amendment) Act, 28 of 1994 for awarding of compensation in cases of untoward incident, in contra distinction to cases where compensation was payable to victims of accidents. For the purpose of quantum of compensation, reference was made to the Railway Accidents (Compensation) Rules, 1990 made by the Central Government pursuant to power conferred on it by Section 129 of the Railways Act, 1989. The said rules were amended with effect from 1st November, 1997 and the compensation payable was enhanced in case of death from Rs. 2,00,000/- to Rs. 4,00,000/- and in cases of amputation below shoulder with stump less Page 1919 than 8 inches from tip of acromion from Rs. 1,40,000/- to Rs. 3,20,000/-. In Rathi Menon (supra) the untoward accident had taken place on 3rd September, 1996, which resulted in a young commerce graduate girl of 22 years suffering amputation of one hand and one leg and becoming para plegic. Thus, the untowards incident had taken place in 1996, before the compensation was enhanced with effect from 1st November, 1997. Referring to Sections 128, 124 and 124A of the Railways Act, 1989 and it was held that compensation payable under the Act did not affect right of claimant to claim compensation under any other law for the time being enforced. The only embargo placed by the said Section was that a person could not be avail himself of both the remedies i.e. under the Railways Act, 1989 and under the normal law. The Court felt that the increase in compensation with effect from 1st November, 1997 would lead to woeful discrimination and asinine consequences in case it was not given retroactive operation. The Court felt that the Government never intended to discriminate between the two victims depending on the date of the accident and the enhancement of compensation by the Government was to update the compensatory amount in view of the falling value of the Rupee and the impact of cost of living. It was also noticed that the compensation payable had been enhanced almost after 8 years. In this decision reference was made to earlier decisions of the Supreme Court in the case of Pratap Narayan Singh Deo v. Srinivas Sabata and Anr. , P.A. Narayanan v. Union of India and Ors. and Maghar Singh v. Jashwant Singh . P.A. Narayanan's (supra) case was distinguished on the ground that compensation in the said case was awarded in a writ petition and in any case the compensation so awarded was in terms of the Rules framed under the Railways Act, 1989, though the date of the accident was 3rd January, 1981. The other two cases distinguished on the ground that they related to claims made under the Workmens Compensation Act, 1923 and under the provisions of the said Act compensation was linked with the monthly wages of a workman concerned. It was also held that the compensation under the said Act was payable on the date when the injury was sustained and not on the date the Commissioner passed the order. Reference was also made to Section 4A of the Workmens' Compensation Act, 1923 under which penalty in appropriate cases could be imposed and the fact that under the said Act interest was payable from the date of accident till payment.

6. In the same decision Supreme Court also referred to another decision of the Supreme Court in the New India Assurance Company Limited v. V.K. Neelakandan (1999) 8 SCC 256. This again was a case of compensation under the Workmens' Compensation Act, 1923 and while referring to the amendments made in the said Act, it was held that the benefit conferred by an amendment Page 1920 should be granted if the same amendment had come into effect before the case was finally adjudicated. However, this decision was referred to in the case of Kerala State Electricity Board and Anr. v. Valsala K. and Anr. and held to be wrongly decided in view of the earlier decision of the Pratap Narayan Singh Deo's case(supra).

6. The above decision of the Supreme Court in Rathi Menon's case has been followed in the case of N. Parameswaran Pillai and Anr. v. Union of India and Anr. . This again was a case of compensation payable under the Railways Act, 1989 for an accident which had occurred on 17th July, 1997. It was held that the enhanced compensation payable as a result of the amendment after the date of accident under the Railway Accidents and untoward Incidents (Compensation) Rules, 1999 was applicable.

7. In Padma Srinivasan's case (supra), the Supreme Court was concerned with the Motor Vehicles Act, 1939 and while dealing with the said Act, it was held as under:

6. The High Court, in its judgment, has referred to the principles governing retrospectivity of statutes and has held by the application of those principles that the amendment introduced by Amending Act 56 of 1969 is prospective in nature and cannot be given any retrospective effect. We consider that the High Court, with respect, has failed to appreciate the true nature of the issue before it. The certificate of insurance, Ex. P-9, which was issued by the respondent's agent on May 31, 1969 for the period June 30, 1969 to June 29, 1970 shows that the respondent-insurer had undertaken "liability as the one under Chapter VIII of the Motor Vehicles Act, 1939". That must mean liability as determinable under Chapter VIII at the relevant time, that is to say, at the time when the liability arises. Since the liability of the insurer to pay a claim under a motor accident policy arises on the occurrence of the accident and not until then, one must necessarily have regard to the state of the law obtaining at the time of the accident for determining the extent of the insurer's liability under a statutory policy. In this behalf, the governing factor for determining the application of the appropriate law is not the date on which the policy of insurance came into force but the date on which the cause of action accrued for enforcing liability arising under the terms of the policy. Page 1921 That we consider to be a reasonable manner in which to understand and interpret the contract of insurance entered into by the insured and the insurer in this case. The contracting parties did not incorporate the provisions of Chapter VIII of the Act in their contract. That is to say, they did not identify the liability of the promisor on the basis of the provisions of Chapter VIII as they stood on the date when the contract was made. They merely referred to the provisions of Chapter VIII, which means "the provisions of Chapter VIII in force at any given time", the given time being the date on which the right to sue accrues or, correspondingly, the liability arises. If the parties to a contract agree that one shall pay to the other damages for breach of contract in accordance with the law contained in any particular statute, without identifying the law as the provision which is in force on the date of the contract, the law which will apply for determining the quantum of damages is the one which is in force on the date on which the breach of contract is committed, that being the date on which the cause of action arises, and not the law which was in force on the date on which the contract was made.

8. Similarly, in the case of Kerala State Electricity Board (supra), the relevant date for determination of rights and liabilities of the parties under the Workemens Compensation Act, 1923 was held to be the date of accident. Thus, the date of the accident is the date on which the cause of action arises and the date on which the compensation amount was quantified and the award passed is not the date on which the cause of action arises. Reference in this regard can also be made to another judgment of the Supreme Court in the case of M.K. Kunhimohammed v. P.A. Ahmed Kutty . This case was again under the Motor Vehicles Act, 1939 but the amendments made in 1982 were not given retrospective effect.

9. In view of the above case law, it is apparent that the Supreme Court has drawn a distinction in cases of compensation under the Railways Act, 1989 on one hand and Workmens Compensation Act, 1923 as well as the motor accidents claims under the Motor Vehicles Act, 1939 and 1988 on the other hand. I do not think, therefore, the amendment made in Section 140 enhancing the amount of compensation in case of no fault liability with effect from 14th November, 1994 can be given retrospective effect.

10. Regarding the quantum of compensation, I feel that the compensation awarded deserves to be enhanced, specially for the loss of consortium and for funeral expenses as the beneficiary in the present case is an old spouse. Only Rs. 2000/- has been awarded towards loss of consortium and Rs. 1000/- has been awarded towards funeral expenses. Both the amounts are on the lower side. The claimant herein is an aged widow and has lost a life companion at an old age due to a tragic accident and she deserves an appropriate compensation on account of loss of consortium. It is in the old age that a married couple requires maximum comfort and company of each other. Loosing a companion in a tragic accident like a road accident at that age always Page 1922 leaves behind a vacuum that can never be fully compensated. Accordingly, I enhance the compensation from Rs. 2000/- to Rs. 12,000/- on account of loss of consortium. Similarly the funeral expenses are enhanced from Rs. 1000/- to Rs. 2,500/-. In addition, I feel that the claimant should be awarded another sum of Rs. 2,500/- towards loss of estate as provided in the Second Schedule of the Motor Vehicles Act, 1988.

11. Thus, the total compensation stands enhanced from Rs. 35,000/- to Rs. 49,000/-.

12. The appeal is accordingly disposed of. However in view of the facts and circumstances of the case there will be no order as to costs.