Section 92-A of the Motor Vehicles Act, 1939 is not retrospective in operation.

( 1 ) TWO of my learned brothers, Dr. T. N. Singh and K. K. Verma, JJ. have, while disposing of M. A. No. 97/85, differed in their opinions on the question of enhancement of compensation payable to claimant/respondent for his son Pappu's death and Hon'ble the Chief Justice has been pleased to constitute this Bench for hearing the appeal.

( 2 ) A single accident gave rise to three claim petitions. All were disposed of by a common order by the Claims Tribunal. The owner and the driver preferred three appeals registered as M. A. No. 90/85, 97/85 and 98/85. In all the three cases, the respective claimants preferred cross-objections seeking enhancement. The three appeals, with respective cross-objections were heard by the Division Bench and disposed of by a common order, the two learned Judges recording separate opinions. They agreed in conclusion in so far as M. A. No. 90/85 and M. A. No. 98/85 were concerned. This M. A. No. 97/ 85 has survived for consideration of the questions as to whether Ramchandra (claimant)'s cross-objection has to be allowed and compensation awarded to him for his son's death enhanced; which of the defendants would be liable to compensate the claimants and to what extent. Facts relevant for the disposal of this appeal alone shall be noticed hereinafter.

( 3 ) THE appellant No. 2 is owner of the truck No. CPC 1996 which met with an accident on 28-2-1982. Pappu, aged 2 years, the minor son of the claimant/respondent No. 2 was one of the victims who died. The victims were travelling in the truck as passengers for hire. The truck had overturned.

( 4 ) RAMCHANDRA, the respondent No. 2, filed claim petition No. 31/82 claiming Rs. 1,02,000/ - as compensation for the death, of his son. The owner and driver filed written statements denying the facts averred by the claimant and pleading that the deceased persons were not passengers in the truck but they were sitting by the side of the road where the accident occurred on account of the brakes of the truck having failed. The insurer, respondent No. 1, took a plea, inter alia, that the vehicle was a goods vehicle which could not have carried the passengers for hire or reward and a material term of the insurance policy having been violated the insurance company stood exonerated.

( 5 ) THE Tribunal awarded an amount of Rs. 4,000/- as compensation for the death of minor Pappu. The driver and the owner made liable jointly and severally but the Insurance Co. was held excluded. The owner and driver have preferred the appeal while the claimant Ramchandra has filed cross-objections claiming an award of Rs. 50,000/- against the owner, the driver and the insurer.

( 6 ) WITH effect from 1-10-1982, came into force Section 92-A of the Motor Vehicles Act, 1939. No such claim was laid before or considered by the Tribunal. During the hearing of the appeal before the Division Bench, the claimant/respondent was permitted to amend the claim petition and cross-objection too, claiming no fault compensation.

( 7 ) AT this stage, it is not disputed that the driver was a duly licensed driver, Pappu was travelling in the truck as passenger, and the truck driver had taken money from the passengers for carrying them as such, of whom three including Pappu died in the accident. The tribunal has arrived at a finding that the accident was the result of rash or negligent driving of the driver. The finding has been confirmed by the Division Bench. One of the terms and conditions of the insurance policy in question is that it does not cover use of the insured vehicle for the conveyance of passengers for hire or reward.

( 8 ) THE order of the Division Bench has since been published in 1990 Acc CJ at page 495. It will still be useful to notice and highlight the salient features of how, on what points, and upon what reasoning, the two learned Judges have differed on the quantum of compensation and the liability of the insurance company to satisfy the award. '

( 9 ) K. K. Verma, J. on scrut