MALIK SHARIEF-UD-DIN, J. ( 1 ) (ORAL ).-THE appellant is aggrieved of an awarddated 26th of July, 1980 passed by the Motor Accident Claimstribunal allowing a sum of Rs. 36,000 as compensation infavour of respondents No. 1, 2 and 3 in the appeal. This followeda claim petition, under section 110-A of the Motor Vehicles Acton the ground that one Tilak Raj husband of respondent No. 2herein died in a motor accident which took place on the lightintervening 6th February and 7th February 1971 at about 1. 30a. M. at G. T. Road, near Seelampur. ( 2 ) THE facts as disclosed in the claim petition are that onthe aforesaid date and time the deceased along with five moreoccupants was travelling in car No. DRP 34 from Delhi Shahdarato Delhi. At the relevant time Shri Mahinder Kumar Jain the appellant is stated to have been driving the car rashly and negligently and when it reached near Seelampur police post the appellant suddenly swerved to the right and hit violently against atree on the extreme right tide of the road as a result of whichout of the six occupants of the car two died on the spot whileothers received injuries. The car was also alleged to have beenbadly smashed in the accident. The deceased Tilak Raj was oneof the dead passengers. Respondent No. 2 in the claim petitionwas the owner of the ear which was insured with respondentno. 3 in the claim petition. The driver and the owner of thecar had denied that the accident took place as a result of rashand negligent driving by the appellant. The plea of the insurancecompany was that it cannot be held liable as the deceased wasadmittedly a passenger and under the provisions of section 95of the Motor Vehicles Act of 1939 a passenger in the car isneither required to be covered nor was he entitled to recoverunder the policy referred to. ( 3 ) MR. Kaul urged that the Tribunal was in error in holdingthat the accident took place as a result of rash and negligentdriving of the offending car by the appellant. The fact that theaccident took place is not in dispute. The fact that the deceasedtilak Raj died as a result of this accident is not in dispute. Themanner in which the accident took place is also not in dispute. The fact that theaccident took place is not in dispute. The fact that the deceasedtilak Raj died as a result of this accident is not in dispute. Themanner in which the accident took place is also not in dispute. In the claim petition the appellant had taken two specific pleas;firstly that due to sudden appearance of a stray animal on lheroad he had to swerve the car to a side and eventually struckagainst a tree resulting in the accident and death and secondlythat there was a mechanical failure of brakes. These two specificpleas have not been proved by him so much so that he hasfailed to appear even as a witness for himself. The Tribunalwas, therefore, justified in discarding this plea as an afterthought. ( 4 ) IN support of their plea of negligence and rashness thepetitioners in the claim petition examined Public Witness 5 Satwant Singhwho as an eye witness deposed that he saw the car being drivenat a fast speed as a result of which this accident took place. Hehas explained his presence because his house is situated nearbyand at the time of the incident he was parking his three wheeler. He was the person who was first examined by the police on thespot. His presence on the spot is sufficiently explained. "the Tribunal further felt that this was a case where the doctrine ofres ipsa loquiter would apply as the appellant had admitted thefactual position and the fact that the accident was inevitable orunavoidable was a matter, the burden of proof of which on thecircumstances of this case would shift to the appellant. I may atonce point out that the aforesaid doctrine is based on the groundthat the facts of the case speak for itself. In the present case,the fact of accident, the death of the passengers is not deniedand a specific case was set up by the appellant to absolve himself of negligence or rashness which is that the accident occurred due to the intervention of a stray cattle and failure of brakes. In my view, the Tribunal was right in holding that these are factswhich it was the duty of the appellant to prove. But having failedto appear in the witness box it must be presumed that the accident took place in a manner different than the one suggested bythe appellant. In my view, the Tribunal was right in holding that these are factswhich it was the duty of the appellant to prove. But having failedto appear in the witness box it must be presumed that the accident took place in a manner different than the one suggested bythe appellant. ( 5 ) THE present case, the fact that the car struck against atree violently on the extreme right side of the road cannot bedisputed at all. This fact alone goes to show that the car wasbeing driven at a reckless speed as a result of which it went outof control sad struck violently against a tree. It does appearthat the appellant had to serve the vehicle to the right and maybe because of some intervention but then if the appellant hadtaken proper care in driving the vehicle at the proper speed itwould have been within his power to control the same. Theobegligence in such cases essentially lies in not taking proper precautions against an impending accident. I would, on the facts andcircumstances of this case, therefore, concur with the finding ofthe Tribunal that the accident occurred due to rash and negligence driving by the appellant. ( 6 ) THE next point that was urged before me by Mr. Kaul onbehalf of the appellant is in respect of the interpretation of theinsurance policy. Mr. Kaul invited my attention to section 2 ofthe Insurance Policy titled liability to third party. In particular, areference was made to sub-clause (a ). His contention is that thiscovers the case of any person. I am unable to agree with thiscontention because this clause has been subject to constructionby the Supreme Court in the case of Pushpabai Purshottamudeshi and others vs. M/s. Ranjit Ginning and Pressing Companyand another, 1977 A. C. J. 343 (1) and the Supreme Court has totally turned down an argument which is being advanced beforeme now. Alternatively, Mr. Kaul submitted that the expressionin section 95 (b) (i) namely any person is comprehensive enough. to cover the case of the appellant and that the insurance company, therefore, must be held liable for payment of compensation. The answer to this argument is also provided by the observations of the Supreme Court in the case supra. ( 7 ) NEXT Mr. Kaul submitted that the expressionin section 95 (b) (i) namely any person is comprehensive enough. to cover the case of the appellant and that the insurance company, therefore, must be held liable for payment of compensation. The answer to this argument is also provided by the observations of the Supreme Court in the case supra. ( 7 ) NEXT Mr. Kaul submitted that the Motor Vehicles Act, inso far as the claims arising out of the accidents are concerned, is a piece of welfare legislation and must be liberally construed in favour of the third parties. His contention is that theexception to section 95 (1) has been done away with, rathertotally repealed, in the Motor Vehicles Act, 1988 and sines theexception is no more to be found in the scheme of the Motorvehicles Act as it existed today it must be impliedly deduced thatthis will have a retrospective effect which makes the insurancecompany liable. In this connection he is deriving sustenancefrom Benaras Ban k Ltd. v. Shri Sri Prakasha Bhagwan Das andors. AIR (33) 1946 Allahabad 269 (2 ). I do not agree withmr. Kaul. In that case it was an amendment of section 235 ofthe Companies Act wherein it was specifically provided (hat. thelimitation within which theliquidator of a company could proceed against the management of the company for breach oftrust would be three years and it was so held on the scheme ofthe amendment that section 235 as amended is a section of procedure containing a rule of limitation. It is an established principle that in the case of an alteration of a substantive law asopposed to a mere law of procedure, an intention adversely toaffect the subject, in the sense of depriving him of some accruedright or interest, is not to be deduced. Section 95 of the Motorvehicle Act casts a duty and confirs a right and creates also aliability. It is in the nature of a substantive law. The repeal ofany portion thereof in a subsequent amendment will in no wayaffect the rights and liabilities created at a particular stage of thedevelopment of law unless it is expressly provided by the legislation. No such deduction can be made by way of implication. It is in the nature of a substantive law. The repeal ofany portion thereof in a subsequent amendment will in no wayaffect the rights and liabilities created at a particular stage of thedevelopment of law unless it is expressly provided by the legislation. No such deduction can be made by way of implication. In the present case, therefore, I agree with the finding of thetribunal that since the deceased was a gratuitous passenger, theliability of the insurance company is not covered by the provisons of section 95 of the Motor Vehicles Act unless, of course,there is a specific provision to cover such a risk on payment ofextra premium. Even in such cases it will be limited to the express stipulation provided in the policy. It is always open for aninsurer to take out a policy beyond the scope of section 95 ofthe Motor Vehicles Act. In any case the terms of the policy inthis case are the same as the one that was subject of constructionby the Supreme Court in 1977 ACJ 343 supra. I may go alittle further to add that the facts in this case more or less aresubstantially the same. ( 8 ) MR. Kaul has next made a grievance in respect of thefact that the widow of the deceased admittedly had remarriedin January 1977 and, therefore, she can no more be dependenton the deceased and to that extent the award should be modified. He has invited my attention to the fact that an application to thiseffect was made before this court when the appeal was movedconsequent to which a notice was given to the opposite party andit was admitted by the opposite party that the widow was remarried on 24th of January 1977. By an order of this courtdated 20th of October 1981 it was observed that in view of thisadmission there is no need for recording any evidence in respectof this fact. This is an admitted position as at present, whiledealing with the dependency and income the Tribunal foundthat the income of the deceased was Rs. 3001- per month andafter deducting one-third on account of his personal expenses thedependency was brought down to Rs. 2001- per month, that is, asum of Rs. 24001- per annum. The dependents were the mother,the widow and the infant child. This shows that the Tribunalhad allowed Rs. 8001- per annum to each of the dependents. 3001- per month andafter deducting one-third on account of his personal expenses thedependency was brought down to Rs. 2001- per month, that is, asum of Rs. 24001- per annum. The dependents were the mother,the widow and the infant child. This shows that the Tribunalhad allowed Rs. 8001- per annum to each of the dependents. Admittedly, now the widow is no more dependent on the deceasedfrom 24th of January, 1977. So the multiplier of 15 in her casewill not be applicable. In her case a multiplier only of 6 yearswill be relevant. A sum of Rs. 7200. 00 as such will have to bededucted from the total amount awarded. The total amount ofcompensation, therefore, to which the respondents No. 1, 2 and3 in this appeal are entitled to will be Rs. 28,800. 00 This will beexculding the interest which the Tribunal has allowed at the rateof 6% per annum from the date of award till the date of realisation the amount is not paid within two months as directed bythe Tribunal. ( 9 ) NOW, while concluding I may make a reference to thecontention of Mr. Kaul that he has made an application beingc. M. 2899/89 for allowing him to place on record the certifiedcopy of the judgement of the Criminal Court dated 17th ofdecember 1976 by which the accused was acquitted in the criminal case in respect of this accident after the criminal courtheld that the fact of rash and negligent driving was not proved. I allow the application. Let the order be placed on the record. As to the effect of the order I may at once add that this will notin any way interfere with the finding of the Civil Court whichis based on independent evidence. If there is a finding of acriminal court holding a driver of a vehicle responsible for rashand negligent driving that would prima facie provide evidenceof rash and negligent driving. But converse is not true. Withthis observation the appeal is dismissed subject to the modification made in the amount that the respondents 1 and 3 will beentitled to.