S.92-A of the Motor Vehicles Act, 1939 is not retrospective and cannot apply to cases of accidents occurring before 1-10-1982.

Jagannadha Rao, C J.

This Reference is made to a Full Bench by a Division Bench of this Court by order dated 29-8-1988 for consideration of the correctness of the decision of the Division Bench of this Court in Vilasini v. K.S.R.T.C.,1988(1) KLT 915, and other cases following it or taking the same view. The said Division Bench in Vilasini's case had taken the view that S.92-A of the Motor Vehicles Act, 1939 is retrospective in application and was applicable to cases of accidents occurring prior to 1-10-1982, the date on which S.92-A came into force. The Division Bench, which has referred this matter to the Full Bench, has referred to the conflict of decisions in the various High Courts and thought that, prima facie, Vilasini's case requires reconsideration.

2. Before we go into the main question, we shall briefly advert to the facts and findings in the referring order. One Damodaran died in a motor accident on 9-4-1977 and the claim was filed as M.V.(O.P.) No.22 of 1979 on 30-8-1979 in the Motor Accidents Claims Tribunal, Thiruvananthapuram, by his wife, three sons and daughters seeking compensation in a sum of Rs.40,000/-. Two other children of Damodaran were impleaded as respondents 4 and 5 in the M. V.O.P. The case stood transferred to the Motor Accidents Claims Tribunal, Alleppey and was registered as M.V.(O.P.) No.22 of 1982. The Motor Accients Claims Tribunal, Alleppey, passed an award on 15-1-1983 holding the owner of the vehicle (first respondent) vicariously liable for the negligence of the driver (2nd respondent) and held that the Insurance Company (3rd respondent) was liable to indemnify the respondents 1 and 2 for the compensation payable by them. The deceased Damodaran, having died at the age of 68 years, the Motor Accidents Claims Tribunal arrived at a consolidated figure of Rs.1950/- towards the total compensation and apportioned the same between petitioners 1 to 4 only with interest at 6% from 30-8-1979 to date of payment. The third respondent was directed to pay the amount in three months. No argument was advanced before the Motor Accidents Claims Tribunal under S.92A. In the appeal filed in this Court on 10-2-1983, ground No. 12 was, taken that, the appellants were en titled to compensation under S.92-A of the Motor Vehicles Act, 1939. The balance of Rs.38,050/- was claimed in the Appeal.

3. When the Appeal came up before a Division Bench of this Court, they went into the merits and held that the 'total compensation' as awarded by the Tribunal was just and fair and that "no interference is called for in this appeal". The Division Bench then considered the submission based on S.92-A and referred the matter to a Full Bench. That is how the matter has come up before us.

4. We have heard elaborate arguments by Sri. Pirappancode V.S. Sudheer for the appellants and of Sri.T.K.M. Unnithan for the Insurance Company, and of Smt. Elizabeth Mathai Idiculla for the owner of the vehicle and the driver. In the connected case, M.F. A. 358 of 1984, which we are dealing with separately, we found that the case could now be disposed of on other grounds. But counsel there, Sri. V. Chitambaresh for the appellants and Sri.B.S. Krishnan also made submissions in regard to S.92-A.

5. Learned counsel for the appellants submitted that S.92-A in Chapter VII-A is retrospective and applicable to cases of accidents resulting in death or permanent disability even if such accidents occurred before 1-10-1982. The submission was that S.92-A(3) is merely procedural and lays down a rule of evidence as to mode of proof of negligence and is therefore retrospective. Reliance was also placed on the words 'has resulted' in S.92-A(1) and the words 'arising out of and 'has been' in S.92-A(3) for contending that the death or permanent disablement could have even taken place before 1-10-1982, and also upon S.92-E which gives overriding effect to the provisions in Chap. VII-A. It is also contended that the Statement of Objects and Reasons mentions