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High Court Of Orissa
R. K. PATRA
NEW INDIA ASSURANCE CO.LTD. - Appellant
Versus
SULOCHANA BEWA - Respondent
MISC. APPEAL 259 Of 1991
Decided On : 09/28/1994
MOTOR VEHICLES ACT - SECTION 173 - RIGHT OF APPEAL - VESTED RIGHT - DEPOSIT OF AWARD AMOUNT - APPLICABILITY OF NEW ACT - SECTION 217 - GENERAL CLAUSES ACT, SECTION 6 - INTERPRETATION - EFFECT OF REPEAL - SAVING CLAUSE - RETROSPECTIVITY - SUBSTANTIVE RIGHT - PROCEDURE - DISTINCTION.
Fact of the Case:
The case involves multiple appeals against a common judgment of the Motor Accident Claims Tribunal, Cuttack, arising from a fatal accident caused by a truck insured with the appellant insurance company. The claimants, including the deceased's family and injured passengers, sought compensation for the accident. The insurance company challenged the awards, arguing that the claimants were not entitled to compensation and that the Tribunal erred in granting it.
Finding of the Court:
The court held that the right of appeal is a vested right that accrues to a litigant at the commencement of a lis and is governed by the law prevailing at the date of the institution of the suit or proceeding, not by the law prevailing at the date of its decision or appeal. The court found that the accident and claim petitions occurred before the enactment of the Motor Vehicles Act, 1988 (New Act), which repealed the Motor Vehicles Act, 1939 (1939 Act). Therefore, the right of appeal vested in the parties at the commencement of the lis was governed by the 1939 Act.
Issues: 1. Whether the requirement to deposit a certain amount of the award by the appellant under the New Act is applicable to appeals arising from proceedings commenced under the 1939 Act? 2. Whether the claimants, who were traveling in the truck as owners of their goods, are entitled to compensation under the 1939 Act? 3. Whether the evidence supports the finding that one of the injured claimants was a coolie in the truck.
Ratio Decidendi: 1. The court interpreted Section 217 of the New Act and Section 6 of the General Clauses Act to conclude that legal proceedings commenced before the repeal of the 1939 Act are to be continued or enforced as if the repealing Act had not been passed. The court held that the requirement to deposit a certain amount of the award by the appellant under the New Act is not applicable to appeals arising from proceedings commenced under the 1939 Act, as it would impair a substantive right and the New Act is not retrospective. 2. The court relied on a Full Bench decision of the Orissa High Court, which held that the owner of goods who hires a goods vehicle does not become a person traveling in the vehicle in pursuance of a contract of employment. Therefore, the court held that the claimants, who were traveling in the truck as owners of their goods, are not entitled to compensation under the 1939 Act. 3. The court examined the evidence on record and found it sufficient to support the finding that one of the injured claimants was a coolie in the truck.
Final Decision: 1. The court dismissed the appeals filed by the insurance company challenging the awards granted to the deceased's family and the injured coolie. 2. The court allowed the appeals filed by the insurance company challenging the awards granted to the claimants who were traveling in the truck as owners of their goods.
R. K. PATRA, J.
( 1 ) THE aforesaid appeals (except Misc. Appeal No. 241 of 1991 filed by the claimants) have been filed by the Insurance Company challenging a common judgment of the Second Motor Accident Claims Tribunal, Cuttack, by which it has disposed of seven claim petitions. As all the appeals are analogous and arise out of the same judgment, they were heard together and are disposed of by this judgment.
( 2 ) THE common case of the claimants is that on 7-1-1987 at about 6 p. m. the offending truck bearing registration number OSU 2478 belonging to Harmohan Das who is one of the respondents and insured with the appellant was coming in high speed from Paradeep towards Chandikhole. At Hazari Chhak on the Paradeep-Chandikhole Express High Way the said truck suddenly swerved to its left and then capsized. On account of this accident which was due to rash and negligent driving of the driver of the truck, the helper Birabar Behera, a pedestrian Misra Abid Baig died due to the injuries sustained by them and other five claimants who were travelling in the truck (four of them as owners of goods and fifth one as a coolie) got bodily injuries on their persons. On consideration of evidence on record, the Tribunal held that the accident took place due to the rash and negligent driving of the driver of the offending truck resulting in the death of two persons and injuries to other claimants. The Tribunal then considered each of the claims made by the claimants and granted compensation, the details of which are as follows :appeal No. Misc. Case No. Nature of Claim amount Awarded1. M. A. No. 259/91 66 of 1987 death 30,000/-2. M. A. No. 260/91 61 of 1987 injury 5,000/-3. M. A. No. 261/91 64 of 1987 injury 5,000/-4. M. A. No. 262/91 85 of 1987 injury 3,000/-5. M. A. No. 263/91 86 of 1987 injury 10,000/-6. M. A. No. 264/91 315 of 1987 death 30,000/-7. M. A. No. 265/91 317 of 1987 injury 3,000/-Misc. Appeal No. 241 of 1991 filed by the claimants who are the widow and father of the deceased Birabar Behera is for enhancement of the compensation to Rs. 20,000/-, their claim case being Misc. Case No. 66 of 1987.
( 3 ) SHRI R. N. Mohanty, learned counsel appearing for some of the claimant-respondents, relying on the decision of a Division Bench of Karnataka High Court in New India Assurance Co. Ltd. v. Mahadev Jatta Naik, 1992 (1) ACJ 100, and a decision of the Full Bench of the Madhya Pradesh High Court in Gaya Prasad v. Suresh Kumar, 1992 (2) ACJ 200 raised preliminary objection that the insurer having not deposited the necessary amount of the award as required in the fist proviso to sub-section (1) of Section 173 of the Motor Vehicles Act 1988 (hereinafter referred to as 'the New Act'), the appeals field by the insurer are not maintainable. Shri Roy, learned counsel appearing for the insurer-appellants, relying on a judgment of this Court in Oriental Insurance Co. Ltd. v. Parbati Mohanta, 1993 (1) ACJ 550 submitted that the vested right accrued to the appellant on the basis of the claim petitions which were made prior to the New Act came into force cannot be taken away and as such the appellant is not obliged to comply with the requirement of deposit of the necessary amount of the award.
( 4 ) THE accident took place on 7-1-1987 when the Motor Vehicles Act, 1939 was in force. The claim petitions were also made when the said Act was in force. The 1939 Act was repealed by the New Act which has come into force with effect from 1-7-1989. The impugned judgment was passed after coming into force of the New Act and the appeals have been filed against the said judgment.
( 5 ) SUB-SECTION (1) of Section 217 of the New Act has expressly repealed the 1939 Act. What would be the legal position in case of repeal followed by fresh legislation on the same subject was considered by the Supreme in Qudarat Ullah v. Municipal Board Bareilly, AIR 1974 SC 396 at p 402 it was observed as follows:";in cases where a repeal is followed by a fresh legislation on th
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