# ICICI Lombard General Insurance v. Suresh & Ors

- **Citation:** (2024) 2 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-11
- **Case number:** First Appeal From Order No. 1710 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/icici-lombard-general-insurance-v-suresh-ors-51463
- **Pages:** 8

## Headnote

Motor Vehicles Act, 1988- pecuniary limit for
filing of an appeal against an award of a Claims
Tribunal has been raised to 'one lakh rupees'
from the earlier limit of 'ten thousand rupees-
the effect of the Amending Act 32 of 2019-
70 INDIAN LAW REPORTS ALLAHABAD SERIES
preexisting right of appeal continues to existearlier law which created the right of appeal
must also exist to support the continuation of
that right-earlier law continues to exist for the
purpose of supporting the preexisting right of
appeal- that law must govern the exercise and
enforcement of that right of appeal -objection
of stamp reporter unsustainable. (E-9)

Cases cited:

## Text

2 All. ICICI Lombard General Insurance Vs. Suresh & Ors.
69
appellant has failed to prove that he
normally resides at Lucknow. Therefore,
once the claim petition has been returned, it
can be filed by the appellant before the
Bench of tribunal, which is competent to
decide the same.

23. In the present case, as submitted
by learned counsel for the appellant, the
pleadings are complete and evidence has
also been adduced by the appellant and
relevant document in evidence by the
respondent has also been placed on record,
which could not be disputed, therefore,
since the claim petition was filed in the
year, 2011 and the issue has been decided
by means of the impugned judgment and
order dated 06.07.2018 and the Chairman
of the Tribunal has a power to transfer the
case on an application moved by the
applicant, this Court is of the view that in
place of returning the claim petition to the
applicant/appellant, the liberty should have
been granted to the applicant to move an
application
before
the
Chairman
for
transfer of the case or the tribunal itself
could have directed to put up the matter
before the Chairman to consider for
transfer of the case in the interest of justice
and to save the time of the tribunal in the
facts and circumstances of the case.

24. This Court also, in FAFO no.767
of 2012 (Pankaj Kumar vs Union of India),
relied by learned counsel for the appellant,
has held that the applicant can also apply
for transfer of the case to the Chairman.

25. In view of above and considering
the over all facts and circumstances of the
case, the impugned judgment and order
dated 06.07.2018 is set aside only to the
extent it directs to return the claim petition
to the appellant/applicant Anil Kumar
Chaturvedi and modifies it to the effect that
the appellant may move to the Chairman
for transfer of the case to the appropriate
Bench of the tribunal having jurisdiction to
hear and decide the claim.

26. It is further provided that in case,
the
application
is
moved
by
the
applicant/appellant before the Chairman
within a period of four weeks from today,
the
Chairman
shall
take
appropriate
decision on the application within a period
of four weeks thereafter in light of the
observations made above by this Court in
this order. Consequences shall follow
accordingly as per law.

27. With the aforesaid, the appeal is
partly allowed only to the aforesaid extent.
No order as to costs.
----------
(2024) 2 ILRA 69
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

First Appeal From Order No. 1710 of 2023

ICICI Lombard General Insurance
 ...Appellant
Versus
Suresh & Ors. ...Respondents

Counsel for the Appellant:
Sri Rahul Sahai, Sri Aditya Parihar

Counsel for the Respondents:

Maintainability of appeal u/s 173(2) of the
Motor Vehicles Act, 1988- pecuniary limit for
filing of an appeal against an award of a Claims
Tribunal has been raised to 'one lakh rupees'
from the earlier limit of 'ten thousand rupees-
the effect of the Amending Act 32 of 2019-
70 INDIAN LAW REPORTS ALLAHABAD SERIES
preexisting right of appeal continues to existearlier law which created the right of appeal
must also exist to support the continuation of
that right-earlier law continues to exist for the
purpose of supporting the preexisting right of
appeal- that law must govern the exercise and
enforcement of that right of appeal -objection
of stamp reporter unsustainable. (E-9)

Cases cited:

1. Jaswant Rao Vs Kamalabai & anr., AIR 1990
MP 354

2. Messrs. Hoosein Kasam Dada (India) Ltd. Vs
The St. of M.P. & ors., AIR 1953 SC 221

3. St. of Bombay Vs M/s. Supreme General Films
Exchange Ltd., (In C.A. No. 86 of '56) and Arati
Cotton Mills Ltd., AIR 1960 SC 980

4. Vitthalbhai Naranbhai Patel Vs Commissioner
of Sales Tax, M.P., Nagpur, AIR 1967 SC 344

5. Garikapati Veeraya Vs N. Subbiah Choudhary
& ors., AIR 1957 SC 540

6. St. of Bombay Vs M/s. Supreme General Films
Exchange Ltd. And Arati Cotton Mills Ltd., AIR
1960 SC 980

7. ECGC Limited Vs Mokul Shriram EPC JV ,
(2022) 6 SCC 704

8. Delhi Cloth and General Mills Co. Ltd. Vs CIT,
AIR 1927 PC 242

9. Sectionretary of St. for Social Sectionurity Vs
Tunnicliffe, (1991) 2 All ER 712

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Rahul Sahai, along with
Sri Aditya Singh Parihar, learned counsel
for the appellant. Sri Satya Deo Ojha,
learned counsel has also been heard.

2. A question has arisen with regard to
the maintainability of the instant appeal
under Section 173(2) of the Motor Vehicles
Act, 1988, in view of the report submitted
by the Stamp Reporter.

3. It is pointed out that the aforesaid
objection of the Stamp Reporter is based on
the amended provision contained under
sub-section (2) of Section 173, in terms of
which the pecuniary limit for filing of an
appeal against an award of a Claims
Tribunal, has been raised to 'one lakh
rupees' from the earlier limit of 'ten
thousand rupees'.

4. Contention of the counsel for the
appellant is that the right to file an appeal
being a vested right and having accrued on
the institution of the claim petition before
the Tribunal, the said right cannot be taken
away or curtailed by means of a subsequent
amendment, particularly, when the said
amendment does not have a retrospective
effect.

5. For a proper appreciation of the
controversy at hand, the provisions of
Section 173 of the Motor Vehicles Act,
1988, as it stood prior to the amendment of
the year 2019, and as it now stands
subsequent to coming into force the Motor
Vehicles (Amendment) Act, 2019 [Act 32
of 2019], are being reproduced in a tabular
form so as to facilitate comparison.

Pre Amendment

173.
Appeals.-(1)
Subject to the provisions
of sub-section (2), any
person aggrieved by an
award
of
a
Claims
Tribunal
may,
within
ninety days from the date
of the award, prefer an
appeal to the High Court:

Provided that
no appeal by the person
who is required to pay any
Post Amendment

173. Appeals.-(1) Subject
to the provisions of subsection
(2)
any
person
aggrieved by an award of a
Claims Tribunal may, within
ninety days from the date of
the award, prefer an appeal
to the High Court:

Provided
that
no appeal by the person who
is required to pay any
amount in terms of such
2 All. ICICI Lombard General Insurance Vs. Suresh & Ors.
71
amount in terms of such
award shall be entertained
by the High Court unless
he has deposited with it
twenty-five
thousand
rupees or fifty per cent of
the amount so awarded,
whichever is less, in the
manner directed by the
High Court:

Provided
further that the High Court
may entertain the appeal
after the expiry of the said
period of ninety days, if it
is
satisfied
that
the
appellant was prevented
by sufficient cause from
preferring the appeal in
time.

(2)
No
appeal shall lie against any
award
of
a
Claims
Tribunal if the amount in
dispute in the appeal is
less than ten thousand
rupees.
award shall be entertained by
the High Court unless he has
deposited with it twenty-five
thousand rupees or fifty per
cent. of the amount so
awarded, whichever is less,
in the manner directed by the
High Court:

Provided
further that the High Court
may entertain the appeal
after the expiry of the said
period of ninety days, if it is
satisfied that the appellant
was prevented by sufficient
cause from preferring the
appeal in time.

(2) No appeal
shall lie against any award of
a Claims Tribunal if the
amount in dispute in the
appeal is less than one lakh
rupees.

6.
 A
comparative
reading
of
provisions of Section 173, pre and post the
amendment would indicate that except for
substituting the amount 'one lakh' for the
amount 'ten thousand', the provision
remains the same as it was earlier.

7. The Amending Act 32 of 2019
provides that the various provisions of the
Act would come into force on the dates to
be notified by the Central Government.
Section 57 of the Amendment Act 2019,
which is with regard to the amendment
made to Section 173, was notified on
25.02.2022, to come into force w.e.f.
01.04.2022.

8. The question as to whether an
appeal under an earlier statute would lie
under a new enactment which comes into
operation consequent to repeal of the
earlier enactment and as to whether such
appeal would be subject to the same
conditions as were applicable to it under
the repealed Act, was considered by a
Division Bench of this Court in Oriental
Insurance Company Ltd. Haldwani Vs.
Dhanram Singh alias Dhan Singh and
Others1, and placing reliance on an earlier
Constitution
Bench
judgment
of
the
Supreme Court in Garikapati Veeraya Vs.
N. Subbiah Choudhary2, reiterated that
the right of an appeal is a vested right
which accrues to the litigant from the date
the lis commences and this vested right in
the appeal can be taken away by a
subsequent enactment, if it is so provided
expressly or by necessary intendment and
not otherwise.

9. It was accordingly held that an
appeal from a proceeding initiated under
Section 110A of the Motor Vehicles Act,
1939, would be maintainable under Section
173 of the Act 59 of 1988 and that the
provisions of the Old Act would continue to
apply to all appeals which arise from
proceedings
initiated
prior
to
the
enforcement of the New Act. It was made
clear that such appeals would not require to
comply with the provisions as laid down
under Section 173 of the New Act.

10. The question as to whether a right
of an appeal under the Old Act survives
even after it is repealed by a New Act, fell
for consideration before the Supreme Court
in Ramesh Singh and Another Vs. Cinta
Devi and Others3 and particularly the
question that was addressed, was as to
whether a right of appeal would accrue to a
claimant under the Motor Vehicles Act,
1939 (Old Act), on the institution of a claim
application in the Motor Accident Claims
Tribunal notwithstanding with its repeal by
the Motor Vehicles Act, 1988 (New Act).

11. The order passed by the High
Court dismissing the appeal on the ground
72 INDIAN LAW REPORTS ALLAHABAD SERIES
that the appellant had not deposited the
amount as required by the proviso to
Section 173 of the New Act, was subjected
to challenge. The Supreme Court took
notice of the decisions of the High Court of
Allahabad and the High Court of Madhya
Pradesh in Oriental Insurance Company
Ltd., Haldwani Vs. Dhanram Singh and
Others4, Jaswant Rao Vs. Kamalabai
and Another5, wherein it has been held
that the appellant's right to appeal without
being required to make the deposit under
first proviso to Section 173 of the New Act,
remained unaffected.

12. Further, noticing the earlier
decisions of the Supreme Court in Messrs.
Hoosein Kasam Dada (India) Ltd. Vs.
The State of M.P. And Others6, State of
Bombay Vs. M/s. Supreme General
Films Exchange Ltd., (In C.A. No. 86 of
'56) and Arati Cotton Mills Ltd.7 and
Vitthalbhai
Naranbhai
Patel
Vs.
Commissioner
of
Sales
Tax,
M.P.,
Nagpur8, it was concluded that unless the
New Act expressly or by necessary
implication,
makes
the
provisions
applicable retrospectively, the right to
appeal would crystallize in the appellant on
the institution of the application in the
Tribunal of first instance and that vested
right of appeal would not be dislodged by
the enactment of the New Act. It was
accordingly held that the appellant would
be entitled to file the appeal without being
required to make the deposit under the
proviso to Section 173 of the New Act.

13. The effect of change in the
condition of preferring an appeal was
considered in the decision in Messrs.
Hoosein Kasam Dada (India) Ltd. Vs.
The State of M.P. And Others9, and it
was held that the right of appeal from the
decision of an inferior Tribunal to a
superior Tribunal becomes vested in a party
when the proceedings are first initiated
before the inferior court, and such a vested
right cannot be taken away except by
express
enactment
or
by
necessary
intendment. It was also observed that an
intention to interfere with or to impair or
imperil such a vested right cannot be
presumed unless such intention is clearly
manifested by express words or necessary
implication.

14. The maintainability of appeal as
of right subsequent to changes in law was
subject
matter
of
consideration
in
Garikapati Veeraya Vs. N. Subbiah
Choudhary and others10 and after an
analysis of the legal position in regard to
the same, the following principles were laid
down:-

"23. From the decisions cited
above the following principles clearly
emerge:

(i) That the legal pursuit of a
remedy, suit, appeal and second appeal are
really but steps in a series of proceedings
all connected by an intrinsic unity and are
to be regarded as one legal proceeding.

(ii) The right of appeal is not a
mere matter of procedure but is a
substantive right.

(iii) The institution of the suit
carries with it the implication that all rights
of appeal then in force are preserved to the
parties thereto till the rest of the career of
the suit.

(iv) The right of appeal is a
vested right and such a right to enter the
superior Court accrues to the litigant and
exists as on and from the date the lis
commences and although it may be actually
exercised when the adverse judgment is
pronounced such right is to be governed by
the law prevailing at the date of the
2 All. ICICI Lombard General Insurance Vs. Suresh & Ors.
73
institution of the suit or proceeding and not
by the law that prevails at the date of its
decision or at the date of the filing of the
appeal.

(v) This vested right of appeal
can be taken away only by a subsequent
enactment, if it so provides expressly or by
necessary intendment and not otherwise."

15. The effect of putting a new
restriction or imposing a more onerous
condition on the right of appeal was
examined in State of Bombay Vs. M/s.
Supreme General Films Exchange Ltd.
and Arati Cotton Mills Ltd.11 and
following the judicial precedents on the
point, it was observed that an impairment
of the right of appeal by putting a new
restriction thereon or imposing a more
onerous condition would not be a matter of
procedure only, and an enactment having
the said effect would not be retrospective
unless it says so expressly or by necessary
intendment.

16. The effect of amendment of law
relating to appeal after commencement of
lis
was
again
subject
matter
of
consideration before a Constitution Bench
in Vitthalbhai Naranbhai Patel Vs.
Commissioner
of
Sales
Tax,
M.P.,
Nagpur12, and the view taken in Messrs.
Hoosein Kasam Dada (India) Ltd. Vs.
The State of M.P. and others13 case, was
reiterated by stating that when a lis
commences, all rights get crystallized and
no clog upon a likely appeal can be put,
unless the law was made retrospective,
expressly or by clear implication.

17. In a recent decision in ECGC
Limited Vs. Mokul Shriram EPC JV14,
in the context of an appeal arising out of
complaints filed prior to commencement of
the Consumer Protection Act, 2019, it was
held
that
an
appeal
filed
in
such
circumstances would be governed under the
Consumer Protection Act, 1986, and not
under the 2019 Act. The right of appeal, its
nature and scope and the extent to which
the such right may be modified by
amendment or repeal of the applicable
provisions of law, was examined and it was
held that the pre-existing right of appeal is
not destroyed by the amendment if the
amendment is not made retrospective by
express words or necessary intendment.

18. The foregoing discussion goes to
show that the right of appeal is not a mere
matter of procedure but is a substantive
right. It is a vested right which accrues to
the litigant on the date the lis commences
and this vested right cannot be taken away
by a subsequent enactment, unless it is so
provided
expressly
or
by
necessary
intendment.

19. The pursuit of a legal remedy, suit
or appeal are steps in a series of
proceedings all connected by an intrinsic
unity. The institution of the suit carries with
it the implication that the right of an appeal,
as in force, is preserved during the progress
of the proceedings. This right to enter the
superior court accrues to the litigant and
exists as on and from the date the lis
commences, and although it may actually
be exercised when the adverse judgment is
pronounced by the first court, the vested
right is to be governed by the law
prevailing on the date of institution of the
suit or proceeding and not by the law that
prevails on the date of its decision or on the
date of filing of the appeal.

20. There is a presumption that a
statute is prima facie prospective unless it
is expressly or by necessary implication
made to have a retrospective operation -
74 INDIAN LAW REPORTS ALLAHABAD SERIES
nova constitutio futuris formam imponere
debet non praeteritis, i.e. "a new law ought
to regulate what is to follow, not the past".
Once vested, the rights cannot be taken
away or retrospectively altered.

21.

In
the
words
of
Lord
Blanesburg, as stated in Delhi Cloth and
General Mills Co. Ltd. Vs. CIT15,
"provisions which touch a right in
existence at the passing of the statute are
not to be applied retrospectively in the
absence of express enactment or necessary
intendment".

22. In Maxwell Vs. Murphy16 it was
observed by Dixon, C.J, as follows:-

"7. The general rule of the
common law is that a statute changing the
law ought not, unless the intention appears
with reasonable certainty, to be understood
as applying to facts or events that have
already occurred in such a way as to confer
or impose or otherwise affect rights or
liabilities which the law had defined by
reference to the past events."

23. A similar view was expressed in
Secretary of State for Social Security
Vs. Tunnicliffe17 by Staughton, L.J, in
the following words:-

"...the true principle is that
Parliament is presumed not to have
intended to alter the law applicable to
past events and transactions in a manner
which is unfair to those concerned in
them,
unless
a
contrary
intention
appears."

24. In Sutherland on Statutory
Construction18, it has been stated as
follows:-

"29. ...Effect on vested rights

Under common law principles of
construction and interpretation the repeal of
a statute or the abrogation of a common
law principle operates to divest all the
rights accruing under the repealed statute or
the abrogated common law, and to halt all
proceedings not concluded prior to the
repeal. However, a right which has become
vested is not dependent upon the common
law or the statute under which it was
acquired for its assertion, but has an
independent existence. Consequently, the
repeal of the statute or the abrogation of the
common law from which it originated does
not efface a vested right, but it remains
enforceable without regard to the repeal."

25. Under English common law there
is a presumption that a statute does not
have "retrospective" effect. The statement
in Maxwell on The Interpretation of
Statutes19, which is often referred, is as
follows:

"Upon the presumption that the
legislature does not intend what is unjust
rests the leaning against giving certain
statutes a retrospective operation. They are
construed as operating only in cases or on
facts which come into existence after the
statutes were passed unless a retrospective
effect
is
clearly
intended.
It
is
a
fundamental rule of English law that no
statute shall be construed to have a
retrospective operation unless such a
construction appears very clearly in the
terms of the Act, or arises by necessary and
distinct implication."

26.

The
presumption
against
interference with vested rights rests on a
very simple rationale - it is often unfair for
a new legislation to intrude upon rights that
have validly and legally been acquired in
2 All. ICICI Lombard General Insurance Vs. Suresh & Ors.
75
the past. This presumption has been stated
with emphasis by Wright J. in In re
Athlumney20:

"Perhaps no rule of construction
is more firmly established than this - that a
retrospective operation is not to be given to
a statute so as to impair an existing right or
obligation..."

27. In the case at hand, the effect of
the Amending Act 32 of 2019, in respect of
Section 173 of the Motor Vehicles Act,
1988, is that in sub-section (2) thereof the
amount which was earlier specified as 'ten
thousand rupees', has been substituted by
an amount of 'one lakh rupees'. The effect
of the amendment thus is to raise the
pecuniary limit for filing of an appeal
against an award of a Claims Tribunal,
from 'ten thousand rupees' to 'one lakh
rupees'.

28. Section 57 of the Amending Act
2019, which is with regard to the
amendment made to Section 173, was
notified on 25.02.2022, to come into force
w.e.f. 01.04.2022.

29. The fact that the pre-existing right
of appeal continues to exist, must in its
turn, necessarily imply that the earlier law
which created the right of appeal must also
exist to support the continuation of that
right. As the earlier law continues to exist
for the purpose of supporting the preexisting right of appeal, that law must
govern the exercise and enforcement of that
right of appeal and there would be no
question
of
the
amended
provision
preventing the exercise of that right or
acting as a clog upon the right which had
crystallized earlier.

30. An amending statute cannot be
read in a manner so as to take away, alter,
abrogate, impair or extinguish vested rights
acquired under existing laws, or create a
new obligation, impose a new duty or
attach a new disability, in respect of
transactions already past.

31. The right of appeal having been
conferred by statute and, therefore, being a
vested right, the effect of the amendment
would have to be seen in the context as to
whether it keeps alive the old rights or
whether it manifests an intention to destroy
them. It would be required to see as to
whether the effect of the amendment is to
obliterate the earlier statute and to destroy
its operation in future, or on the other hand
the amendment does not contemplate
alteration of the substantive right conferred
by the statute, but merely seeks to alter or
modify the procedure.

32. The right of appeal under the
unamended provision was a substantive
right, and it continues to be so under the
amended provision also; the only change
being with regard to enhancement of the
pecuniary limit for filing an appeal. It is
seen that the effect of the amendment is in
no manner to destroy or even to alter the
pre-existing rights. It would, therefore,
follow that the substantive right of appeal
which is in the nature of a vested right
would continue to be enforced as per the
pre-existing law without in any manner
being effected by Amending Act.

33.

In
construing
a
statutory
provision, the cardinal rule of construction
which is to be borne in mind by the courts
is that statutes should be interpreted, if
possible in a manner, so as to respect vested
rights. In the absence of anything in the
enactment to show that it is to have
retrospective
operation,
it
cannot
be
construed so as to have the effect of
76 INDIAN LAW REPORTS ALLAHABAD SERIES
altering the pre-existing law applicable to a
claim in litigation.

34. The claim petition, in the present
case, was filed sometime in the year 2016,
and was registered as M.A.C.P. No. 479 of
2016, and related to an accident stated to
have occurred on 08.06.2016. The claim
petition was decided in terms of an award
dated 03.08.2023, of the Motor Accident
Claims Tribunal, Jhansi against which the
instant appeal has been preferred.

35. The Amending Act of 2019 does
not take away the right of appeal. It also
does not substantially alter the pre-existing
provision of an appeal under Section 173;
the only modification being that the
pecuniary limit of filing of an appeal has
been raised from 'ten thousand rupees' to
'one lakh rupees'. The Amending Act of
2019 which was published in the gazette
dated
09.08.2019,
was
not
given
retrospective effect; rather in terms of subsection (2) of Section 1 of the Amending
Act, its provisions were to come into
force on different dates to be appointed
by
the
Central
Government,
by
notification in the official gazette. The
legislative intent was clearly to apply
the provisions of the Amending Act
prospectively.
Section
27
of
the
Amending Act, which relates to the
amendment to the pecuniary limit of
filing an appeal under Section 173, was
also prospectively applied in terms of
the
notification
dated
25.02.20222,
which
came
into
force
w.e.f.
01.04.2022.

36. The Amending Act neither
expressly nor by implication seeks to apply
the provision retrospectively; accordingly,
the right to appeal crystallized in the
appellant on the institution of the claim
petition before the Tribunal of first
instance, cannot be held to have been
dislodged by the Amending Act. The
appellant would, therefore, have to be held
entitled to file the appeal, as per the
unamended provision, without in any
manner being effected by the enhancement
of the pecuniary limit for filing of the
appeal in terms of the amended provision.

37. Accordingly, it is held that an
appeal against an award of the Claims
Tribunal, even if the amount in
dispute in the appeal is less than 'one
lakh rupees' would be entertainable
provided that the amount in dispute is
not less than 'ten thousand rupees',
and it relates to a claim petition filed
prior to 01.04.2022.

38. The objection of the Stamp
Reporter with regard to maintainability of
the appeal under Section 173(2) of the
Motor Vehicles Act, 1988, is therefore held
unsustainable.

39. Let the appeal be listed for
admission as fresh on 22.01.2024 before
the appropriate Bench.
----------
(2024) 2 ILRA 76
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 2095 of 2005

Smt. Munisha Devi & Ors. ...Appellants
Versus
Kalyan Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri R.O.V.S. Chauhan, Sri S.O.V.S. Chauhan