Rajasthan High Court - Jaipur
Mahaveer Prasad vs Manmohan And Ors. on 26 April, 1986
Equivalent citations: 1986WLN(UC)147
JUDGMENT Kishan Mal Lodha, J.
1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 (No. IV of 1939) (here in after referred to as 'the Act') is directed against the order dated August 5,1985 passed by the Motor Accidents Claims Tribunal, Churu ('the Tribunal' here in) under Section 92-A of the Act.
2. The claimants, who are respondents Nos. 1 and 2 filed claim for compensation as the death of Ashok alias Tappu has resulted from an accident which took place on May 5,1984 by Truck No. RJI 3382 in the way-Sujangarh to Salasar. In the claim under Section 110-A, a sum of Rs. 5,82,000 was claimed. An application under Section 92-A of the Act for ordering payment of a sum of Rs. 15,000/-. The Tribnnal, by its order dated August 5, 1984, ordered that a sum of Rs. 15,000/-be paid as compensation on the principle of 'no fault'. As the amount of Rs. 15,000/- was ordered to be paid by the owner-appellant, who was also the driver of the truck, he has filed this appeal praying that the Tribunal should have ordered for the payment of the aforesaid sum by respondent No. 3 United Insurance Company Limited, Madras ('the Insurance Company' here in).
3. A show cause notice was issued and in pursuance of that Mr. Rajesh Balia has appeared on behalf of the Insurance Company.
4. I have heard Mr. P.R. Choudhary for the appellant and Mr. Rajesh Balia for respondent No. 3.
5. The question that was pressed for my consideration in this appeal is whether the insurance company can be made liable for payment of the interim compensation under Section 92-A of the Act. It was contended by Mr. Choudhary that under Section 92-A, the order for payment of interim compensation can be made against the Insurance Company and as such the Tribunal has erred in law in giving direction to the appellant, who is owner of the truck in question. This submission of Mr. Choudhary, learned Counsel for the appellant was stoutly opposed by Mr. Rajesh Balia. It was submitted by him that in view of the proviso to Section 110-B of the Act, the order for payment of interim compensation cannot be made against the Insurance company. It was also urged that the order for interim compensation under Section 92-A of the Act can only be made against the owner and none else. I have considered the rival submissions.
6. Before proceeding further, it will be relevant to notice the relevant provisions of the Act. Section 92-A of the Act occurs in Chapter VII-A, which deals with the liability without fault in certain cases. It was inserted by Act No. XLVII of 1982 w.e.f. October 1, 1982. The material part of Section 92-A of the Act is as follows:
92A. Liability to any compensation in certain cases on the principle of no fault--
(1) Where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall or as the case may be, the owners of the vehicles shall, jointly, and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
Section 95 of the Act deals with the requirements of policies and limits of liability. Section 96 of the Act lays down that the insurers are required to satisfy judgments against persons injured in respect of third party risk. Claim petitions are filed under Section 110-A of the Act. Section 110-B provides for award of the Claims Tribunal. It is as under:
110-B. Award of the Claims Tribunal--
On receipt of an application for compensation made under Section 110-A the Claims Tribunal shall after giving the parties an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 100B may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be;
Provided that where such application makes a claim for compensation under Section 92 A in respect of the death or permanent disablement of any person, such claim and any other claim whether made in such application or otherwise for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter VII-A. According to Section 92-A, the owner of the vehicle is liable to pay compensation in respect of the death or disablement in accordance with the provisions of the section when the death or permanent disablement has resulted from an accident arising out of the use of the motor vehicle. The liability under Section 92-A of the Act is of course for the payment of the interim compensation. According to Section 110-B after enquiry, just compensation can be ordered to be paid to the claimants. A duty has been cast on the Tribunal to specify the amount, which is to be paid by the Insurance Company or the owner of & driver or owner or driver of the vehicle involved in the accident or by and or any of them as the case may be. In other words, Section 110-B provides for joint and several liability of the Insurance Company/ owner of the driver. Considerable emphasis has been laid by the learned Counsel for respondent Nos. 3 to the proviso appended to Section 110-B of the Act. According to the proviso, if any application is made under Section 92-A of the Act for payment of the interim compansation, that application is required to be disposed of according to the provisions of Chapter VII-A, and as such, contended the learned Counsel for the respondent, that the order can only be made against the owner of the vehicle involved in the accident under Section 92A of the Act.
7. In Oriental F. and G. Insurance Co. Ltd. v. Beasa Devi AIR 1985 P&H 97, Sections 92-A, 95(5), 96 and 110-B came up for consideration and whether the Tribunal was entitled to make award under Section 95A as soon as it comes to conclusion that vehicle of the owner was involved and insured. After examining the aforesaid provisions of the Act and also Section 92B, 92-E, it was observed as under:
In view of the above, we hold that the insurer is liable to satisfy the compensation claim arising from the accident with the insured vehicle to the extent of the amount that the policy of the insurance in terms of Section 95 happens to cover and therefore, to the extent of the policy cover the insurer without inquiring as to whether the amount awarded is under Section 92-A or otherwise shall be liable to pay the amount awarded to the person named in the awards.
A similar contention to the one, which was raised by the learned Counsel for respondent No. 3 before me, was also raised in Oriental F. &. G. Insurance Co.' s case AIR 1985 P&H 97 that the liability under Section 29A is envisaged only that of the owner and not of the insurer and that if the framers of the statute had in view the liability of the insurer, then they would instead of using the expression 'owner' have used the expression 'owner' or 'insurer' as the case may be. This was met by the learned Judge in the following words:
If his interpretation of Section 92-A is to be accepted then the compensation to be granted on the principle of fault liability too shall have to be paid by the owner alone by virtue of the provisions of subsection 1986 RLR 72 of Section 29B which provisions read that the person liable to pay compensation under Section 92-A is also liable to pay compensation in accordance with the right on the principle of fault.
The question posed in Mohd. Iqbal v. Bhimaiah AIR 1985 Ker 171 was whether Section 92-A contemplates the liability only against the owner or it should be fixed as contemplated under Section 110-B of the Act. After considering the provisions of Section 92-A and 110-B of the Act, it was held by the Division Bench of the Karnataka High Court as under:
Therefore, there is no substance in the contention that since Section 92-A speaks of the liability of the owner alone, the Insurance Company cannot be made liable for the compensation awarded, in the first place, under Section 92-A. In fact, prior to the incorporation of Section 110-A to F of the Motor Vehicles Act, no direct decree or award could be made against the insurer; the decree had to be obtained against the owner and he had to proceed against the Insurance Company to recover the amount as the Insurance Company has to indemnify the amount. That difficulty is overcome now by the Amended Section, as Section HOB now states that the liability can be saddled on the Insurance Company and that applies to the claim awarded under Section 92A.
Before a learned Single Judge of this Court in Kanhaiya Lal v. Daya Ram and Ors. 1986 RLR 72, the provisions of Section 92-A of the Act came up for consideration. It was held in that case that the Insurance Company can be asked to make payment under Section 92-A of the Act. The learned Judge observed as under:
The provisions of Section 92-A of the Act is a piece of beneficial legislation providing for an immediate aid to claimants on account of death in an accident.
Another learned Single Judge of this Court in Radhe Shyam v. Gani Mohd. S.B. Civil Misc. Appeal No. 38 of 1986, decided on March 12, 1986 held that the Insurance Company is liable for purposes of interim compensation under Section 92-A of the Act. It will not be useful to repeat the reasons given in support of the conclusion that the Insurance Company can be made liable for payment of the interim compensation under Section 92-A of the Act, as they have been elaborately discussed in Oriental F&G Insurance Co.'s case AIR 1985 P&H 97. It may be stated that the liability of the Insurance Company is gathered qua the person or classes of persons specified in the policy that is qua the insured by Sub-section (5) of Section 95 and qua the claimants of compensation from the insured under Sub-section (1) of Section 96 of the Act. The name of the insurer is mentioned in Section 110-B also in view of the provisions of Section 96 authorising the Tribunal to specify in the award the person to whom the compensation is to be paid and the party who has to pay in whole or part i.e. the owner or driver of the offending vehicle or the insurer. In my opinion having regard to the provisions contained in Sections 92-A, 95, 96 and 110-B, the Insurance Company is liable for specifying the compensation claimed, arising from the accident by the insured vehicle in accordance with the terms of Section 95. In this view of the matter, to the extent of the policy, which covers the risk without enquiry also whether the amount awarded is under Section 92-A of the Act or otherwise, the Insurance Company is liable to pay the amount awarded. The Tribunal was not right in holding that in terms of Section 92-A of the Act, the owner is only liable. The first contention raised by Mr. Choudhary is accepted.
8. Before making the Insurance Company liable, the Tribunal has to examine the question that the vehicle in question is involved in the accident and further it has, prima facie, come to the conclusion that the vehicle was insured, and if both these conditions are satisfied, then, without enquiring to the correctness of other objections that may be raised by the Insurance Company, can make the order for payment of interim compensation against the Insurance Company. In this case, the Tribunal had no occasion to examine whether the vehicle of the owner was involved in the accident: and that the vehicle was insured one, for, according to it, only the owner could be asked to pay the interim compensation under Section 92-A of the Act. I have already held that the Insurance Company is liable under Section 92-A of the Act, but before making any direction against the insurance company for the payment of the interim compensation under Section 92-A of the Act, the Tribunal should satisfy itself on two counts: (1) that the vehicle of the owner was involved in the accident; and (2) that the vehicle was insured. On fulfilment of both these conditions, the Insurance Company can be asked to pay the amount in terms of Section 92-A of the Act and it is thereafter that the investigation and enquiries into the correctness or otherwise of the other objections, which may be raised by the Insurance Company under Section 95 or 96 of the Act, or by the owner of the vehicle.
9. The result is that I allow this appeal and modify the order of the Tribunal that under Section 92-A of the Act, the Insurance Company can be asked to pay interim compensation provided, prima facie, the Tribunal comes to the conclusion that the vehicle of the owner involved in the accident was insured. The Tribunal shqule examine the question of liability of the Insurance Company for the payment of the interim compensation of Rs. 15,000/- after holding that the vehicle involved in the accident was insured. The observation made here in above shall be kept in view by the Tribunal.
10. In the circumstances of the case, there will be no order as to costs.