Dr. Singh, J.
1. A short and simple point of law has been agitated in this writ application by two ex-Directors of a defunct company. Their grievance is that the Motor Accident Claims Tribunal purporting to act as an executing court substituted them as certificate-debtors in place of the defunct company against which an award was passed by the learned Tribunal. The pathology of the case is truly revealed by the following facts laid bare in its essential detail.
2. On 21-9-1962 one of the vehicles owned admittedly by M/s. National Transport (India) Pvt. Ltd. (hereinafter, the company) collided with an engine of a running train at the Noonmati Railway level crossing near Gauhati. One Dulal Chandra Chakraborty, an young typist aged 21, in employment of the hirer of the vehicle (M/s. Oil India Ltd.), travelling by the said Bus, in the course of employment, sustained serious injuries in the said accident resulting in his death. On a claim being preferred by Mahim Chandra Chaktaborty, the father of the deceased, the Motor Accident Claims Tribunal, Gauhati, by its award dated 28-1-1975, passed in MAC Case No. 45(K)/72, allowed the same with interest and costs and by the same order also determined the respective liabilities of the aforesaid owner of the vehicle M/s. National Transport (India) Private Limited and M/s. New India Assurance Company Ltd. with whom the vehicle was insured. Taking into consideration the terms of the policy and the provisions of Section 95(2)(b) if the Motor Vehicles Act the insurer was directed to pay Rupees 2,000/- and the balance Rs. 13,000/- was made payable by the owner. A Bakijai Case being Case No. 24/74-75 was started against the company for realisation of the awarded amount and a notice under Section 7 of the Bengal Public Demands Recovery Act was issued on 29-12-1976 against the said Company as the certificate-debtor. Before the Bakijai Officer the petitioners filed an objection stating that the said company was dissolved under the Companies Act by a notification published in the Gazette of India dated 21-4-1973 and further that as members of the dissolved company they were not in any way liable for the debt of the dissolved company. On 12-7-1977 the Bakrjai Officer passed an order upholding the plea of the petitioners and directing that the proceeding may continue only against the assets of the company and not against the personal property of the objectors, who are the petitioners before us. On 19-11-1977 the Bakijai Officer passed an order to the effect that the company was not in existence and it had no moveable property and therefore it was not possible to realise the amount it was further directed that the demand certificate be returned to the departmental authority for necessary action. In the meantime, however, on 13-10-77, the heirs of the claimant, Mahim Chandra Chakraborty who, as it appears, passed away during the pendency of the proceeding, filed an application before the learned Tribunal for substituting the petitioners as ex-Directors of the dissolved company in place of the said company on which show cause notices were issued to the petitioners. After hearing the parties the learned Tribunal by its order passed on 16-8-78 allowed the prayer and directed that a fresh certificate in the name of the newly added opposite parties, namely, the petitioners, be issued. Accordingly, on 23-10-78, a certificate bearing No. STAT/105/78, dt. 3-10-78 was issued by the Certificate Officer, Gauhati, against the petitioners naming them as the certificate-debtors for realisation of the awarded amount The validity of this certificate and the learned Tribunal's order dt. 16-6-78 are challenged in these proceedings in this court.
3. It is contended before us by Mr. P. Choudhury, the learned counsel for the petitioners, quite rightly in our opinion, that the learned Tribunal had no jurisdiction to pass the impugned order and further that as the learned Tribunal misdirected itself in holding the petitioners were 'present Directors' of the company and were, therefore, liable for making payment of the amount of the award passed against the company even after the dissolution of the company, the order suffers from an error of law apparent on the face of the record and it is, as such, liable to be quashed by a writ of certiorari
4. We have no doubt about the fact that and it is also not disputed before us that the company was dissolved, as it appears from Annexure--I to the petition, in accordance with the provisions of Section 560(5) of the Companies Act and that a notification to that effect was published in the Gazette of India on 21-4-73. The only question which fails for our consideration in this application is the effect in law of the said dissolution inasmuch as the learned counsel for the respondents-claimants, Mr. B. Sarma, contends that by virtue of the proviso (a) of the same provision the liability of the dissolved company has devolved on the ex-Directors. In our opinion, however, the provision relied on does not provide a correct and complete answer to the questions raised before us on the validity of the impugned order The relevant provisions may, therefore, be read :
Section 560(5): At the expiry of the mentioned in the notice referred to in Sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gezette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved :
(a) the liability, if any of every director, manager or other officer who was exercising any power of management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved; and
(b) nothing in this sub-section shall affect the power of the court to wind up a company the name of which has been struck off the Register.
5. The purport of proviso (a), in our opinion, is entirely different. It merely continues the liability of the officers including the Directors of the company existing, if any on the date of its dissolution it does not convert the existing liability of the company on its dissolution into that of the officers named in the proviso. The liability of such officers contemplated under the proviso is their liability qua such officers which was existing on the date of dissolution. If the named officers had no liability, independent of the liability of the company on the date of its dissolution, the proviso does not come into play. In this case there was patently no liability of the petitioners as Directors on the date of dissolution of the company in the matter of discharge of debt arising against the company as a result of the award passed against the company. The award was passed against the company which was a separate juristic entity and the petitioners could not be said to incur thereunder any liability in their capacity as Directors of the company which could be enforced in terms of the said proviso. The proposition that the company is a separate juristic entity distinct from a share-holder or Director is so firmly established that it needs no elaboration. However, in this connection Mr. Choudhury has drawn our attention to a decision reported in AIR 1955 SC 74 (Bacha F. Guzedar v. Commr. of Income-tax) and also to the provision of Section 543 of the Companies Act. The position canvassed before us, and rightly, in our opinion, is that the liability of a Director of the company in the course of conduct of the business of the company on account of misfeasance, if any, is investigated in the course of winding up of a company as manifested by the provisions of Section 543. When such liability is determined then and then only the Directors can be proceeded against individually in their personal capacity; otherwise, for any debt due by the company they cannot be proceeded against by any creditor of the company in their individual capacity, either before or after its dissolution.
6. We were, however, appalled by the prospect of the poor claimants-respondents being deprived substantially of the fruits of the award which was passed in their favour 8 years ago. The fact that more than two decades have elapsed since the accident stared us in the face, as a budding precious human life was lost for which law could not provide even a poor recompense to the family which, as appears from records, belongs to the underprivileged class of wage earners. We, therefore, made an attempt to investigate the position as to whether the petitioners had with them in their control or possession any assets of the defunct company out of which just dues of the claimants could be satisfied We also endeavoured to investigate if the entire amount of the award could be satisfied under the law by the insurance company. Accordingly, during the course of this proceeding we directed the Registrar of Companies to produce before us the last Balance Sheet as well as the Memorandum and Articles of Association of the Company, We also directed a rule to issue on M/S. New India Assurance Company to show cause why the entire amount should not be paid by them. In compliance with our orders the Balance Sheets of the company have been produced before us and the insurer has also shown cause.
7. We have perused the last balance sheet of the company before its dissolution, for the year ending on 31-12-71, from which we find that the petitioners do not hold with them any assets of the company. According to the Balance Sheet the current assets consist merely of a cash in hand amounting to Rs. 34.8t and in banks amounting to Rs. 1050.32. The claimants-respondents could definitely lay a claim to these amounts for the satisfaction of the award passed in their favour notwithstanding the fact that the award was passed on 28-1-75 but for realisation of these amounts the petitioners cannot be proceeded against. The proceeding for the execution of the award must be directed against the company on whose account the amount is held in the banks.
8. On behalf of the Insurance Company it is contended before us that they have already made a payment of Rs. 3500/- including apparently the cost and interest, in terms of the award, and thereby they satisfied their part of the award. They cannot, it is submitted, be held liable in law for the entire amount awarded to the claimants in this case.
9. It is necessary to examine the contention of the insurer in its different aspects as we feel that to drive the claimants-respondents to pursue their remedy against the company in respect of the paltry sum which was lying in the bank on 31-12-71 will result merely in an endless chase of a diminishing mirage in view of the order passed on 19-12-77 by the Bakijai Officer observing that no moveable property of the company was available. In virtue of the statutory obligation cast on the insurer by Section 96 of the Motor Vehicles Act (hereinafter the Act) to satisfy any judgment passed against the insured in respect of liability arising under a policy issued pursuant to the provisions of Section 95 of the Act it will be open to us, in our opinion, to direct that the entire amount of the award passed in favour of the claimants-respondents shall be satisfied in this case by the insurer if, on the facts of this case, we find that the statutory liability of the insurer in the matter of satisfaction of the award is not limited to Rs. 2,000/- but extends to the entire amount of the award.
10. The specification, in terms of Section 110-B of the Act, in the award, in the instant case, of the amount of Rs. 2000/- as payable by the insurer does not, in our opinion, preclude the claimants from agitating in this proceeding the right available to them under Section 96 to have the award satisfied by the insurer to the exclusion of the owner to the extent allowed by Section 95. Because, Section 96(1) in terms provides that if a 'judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95' is obtained against any person insured by the policy, the insurer shall 'pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured thereunder, as if he were the judgment-debtor, in respect of the liability'. In our opinion the purport of the concluding sentence of Section 110-B (even after the amendment of 1969) by which the Tribunal was enabled to 'specify the amount' payable 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' does not derogate from this position. The intention of the legislature in naming the persons (underlined above) is indicative merely to its anxiety to earmark the ambit of the jurisdiction of the Tribunal by stating the persons against whom it could pass an award. This can be gathered from the purport of the amendment which interpolated the words 'owner or driver' in the concluding sentence. Because, the general law of tort being uncodified and the Tribunal which was given the power to adjudicate the tortious liability being a creature of the Act, it was considered necessary to name the tort-feasors also along with the statutorily named indemnifier contemplated under Section 95(5). It was necessary to do so because, as it appears from Sections 97, 99, 101 and 102, the Act makes a distinct departure from the general law of tort in dealing with the liability of joint tortfeasors. Apart from this consideration based on intrinsic evidence as to the purport of the concluding sentence of Section 110-B another salutary rule of interpretation bearing on this aspect has also to be allowed its full play. The second part of the concluding sentence of Section 110-B has to be construed in a manner as will promote, and not defeat, the object of Chapter VIII of the Act by securing for it a harmonious co-existence with the other provisions of the Chapter. In our opinion, so long as the award is riot satisfied, the liability to the extent allowed by Section 95, of the insurer, to satisfy the award by virtue of the provisions of Section 96, is not extinguished merely by reason of specification in the award of any lesser 'amount' in terms of the concluding sentence of Section 110-B as payable by the insurer. Reading together the provisions of Sections 95, 96 and 110-B leads us to the irresistible conclusion that the liability to discharge the judgment-debt of the insured created by Section 96 is indefeasible and ultimate; it is independent of the 'amount' specified in the award in terms of Section 110-B. Indeed, this liability or obligation is created as against the insurer in terms of Section 95 and not as a result of the 'amount' being so 'specified' in the award. The provisions of Sections 97, 99 and 100 reflect the position that the 'amount' so specified create merely a tentative and inchoate obligation which is perfected in the course of discharge of the judgment debt arising under the award in respect of the total 'amount' of compensation payable in respect of the claim determined in the course of adjudication thereof culminating in the award passed under Section 110-B.
11. We now turn to the primary aspect of the objection of the insurer based on Sub-section (2)(b) of Section 95 of the Act as to the 'limit' of its liability which with the aid of the concluding sentence of Section 110-B is said to exhaust its liability under the award notwithstanding the provision of Section 96. In order to deal with this limb of the contention we may read the relevant portions of Section 95 (as in 1962) having a bearing on this point.
95. Requirements of policies and limits of liability.
(i) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) *** *** *** ***
(b) insures the person or classes of person specified in Sub-section (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place.
Provided that a policy shall not be required--
(i) *** *** ***
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or amounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises;
(iii) *** *** ***
(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely--
(a) x x x x x x x
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers, a limit at twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry Hot more than six passengers including the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers including the driver;
(3)-(4) x x x x x x
(5) Notwithstanding anything elsewhere contained in any law, a person
issuing a policy of insurance under this
section shall be liable to indemnify the
person or classes of persons specified in
the policy in respect of any liability
which the policy purports to cover in
the case of that person or those classes
According to its caption Section 95 deals with 'limits of liability' as well as 'requirements of policies' to give effect to the provisions of Section 94 which prohibits use of a motor vehicle in a public place without there being in force in respect of the vehicle a policy of insurance complying with the requirements of Chapter VIII which apparently contains a complete code in respect of 'insurance of motor vehicle against third party risks'. The person or the classes of persons which the legislature has in its contemplation as being entitled to the benefit of the provisions of Section 95 are indicated in Clause (b) of Sub-section (1) thereof; Clauses (a) and (b) of Sub-section (2) on the other hand prescribe the limits of the liability of the insurer incurred under the policy of insurance issued in compliance with the requirements of Chapter VIII in respect of any one accident as a result of the use in a public place of the vehicle insured indicating simultaneously the types of vehicle and the persons and classes of persons, indicated albeit in Sub-section (1) (b), in relation to which the limits are to be determined- There is no dispute in this case about the type of vehicle involved in the accident which is not material also for the purpose of deciding the point at issue in this case. What is necessary is to identify the classes of beneficiaries contemplated in Clause (b) and to fix the identity of the deceased in the particular class. It is not difficult to see that Clause (b) is a composite provision consisting of several parts. It indicates two classes of beneficiaries in its first part, namely, (1) passengers carried for hire or reward and (2) passengers carried by reason of or in pursuance of a contract of employment. In the same part a limit is also prescribed but only in respect of one class of beneficiary, namely 'persons other than passengers carried for hire or reward,' which will undoubtedly include class (2), in respect of which the 'limit' of liability of the insurer is prescribed as Rs. 20,000/-. Obviously the second part of the clause deals with the limit of liability 'in respect of 'passengers carried for hire or reward' although in this part this class is described briefly as 'passengers' and a twofold limit therefore is prescribed thereunder. In the first place an overall limit of Rs. 20,000/- is prescribed in relation obviously to the 'accident'; in the second place a limit in case of individual 'passengers' is also prescribed which is linked to the type of vehicle involved in the accident. In one case it is Rs. 4,000/- and in the other case it is Rs. 2,000/-. We have no doubt in our mind that in the instant case, the first part of Clause (b) is applicable inasmuch as the deceased was not a passenger carried for hire or reward. Indeed, the admitted position is that the vehicle was hired by M/s. Oil India Ltd. and the deceased was its employee who was travelling at the relevant time by the ill-fated vehicle 'by reason of or in pursuance of a contract of employment'. There was no contract for 'hire Or reward' between the deceased and the Company; he was not carried in the vehicle in pursuance to any such contract. He fell in class (2) and was a 'person other than a passenger carried for hire or reward'. In this case, therefore, the limit of liability of the insurer in so far as the deceased is concerned shall extend to Rs. 20,000/-. The learned Tribunal committed an error of law apparent on the face of the record by fastening the liability on the petitioners, exempting the insurer from its duty to satisfy the entire award, on the footing that the second part of Clause (b) was applicable assuming that the deceased was a 'passenger carried for hire or reward' and as he was travelling in a vehicle which was registered to carry more than six passengers, the liability of the insurer in respect of his death would extend merely to Rs. 2000/-. It appears to us clear that the governing clause in the matter of determination of limit of liability is 'any one accident' to which a reference in these terms is made in the opening sentence of Sub-section (2) itself. This expression was interpreted by the apex court in the Motor Owners Insurance Company case (AIR 1981 SC 2059) and it was held in that case that although the expression was susceptible of two equally reasonable interpretations the ambiguity must be resolved, by having regard to the underlying legislative purpose of the provisions contained in Chapter VIII of the Act. Accordingly, it was held that the word 'accident' should be considered from the point of view of various claimants each of whom was entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurer. In this case, therefore, in respect of the accident resulting in the death of Dulal Choudhury, his heirs, the claimants, by virtue of the provisions of the first part of Clause (b) of Sub-section (2) and also of Sub-section (5) of Section 95 of the Act are entitled to have payment made to them, by the insurer, in terms of Section 96, of the entire amount of Rupees 15,000/- of the award which is well within the 'limit' of the statutory liability of the insurer which is fixed at Rupees 20.000/- by the Act.
12. The learned counsel for the insurer has drawn our attention to a decision reported in AIR 1971 SC 1624 (Sheikhupura Transport Co. v. Northern India Transport) wherein on a plain reading of Section 95(2)(b) the court held that the maximum liability imposed thereunder on the insurer was Rs. 2,000/-per 'passenger' though the total liability may go up to Rs. 20,000/-. In that case the admitted position, however, was that the person in respect of whom the claim was made were merely a 'passenger' who was apparently' carried for hire or reward' and therefore in his case second part of Clause (b) was applicable which is not the case here This decision, in our opinion, is clearly distinguishable on facts and does not, therefore, support the contention of the learned counsel. Indeed, in Motor Owners' Insurance Co. (supra) their Lordships noticed that the court, in the decision, was not required to deal with the argument based on the construction of the words 'any one accident'.
13. In view of the foregoing discussions we have no hesitation to quash the impugned order passed on 17-8-1978 by the learned Tribunal and also the impugned certificate dated 3-10-1978. Because, the petitioners have been thereby substituted as certificate-debtors in place of the company whereas the learned Tribunal had no jurisdiction to substitute in place of the company its ex-Directors as the company was, in law and fact, a different juristic person and the substitution resulted in the award itself being modified which it could not do purporting to act as the executing court.
14. However, in view of the legal position discussed above we are satisfied that the claimants-respondents in this petition are entitled to have the entire award satisfied by the insurer and to 60 complete justice between the parties a direction toy this Court to this effect is called for. It is the duty of the court, mandated by Article 39A of the Constitution, to ensure that the benevolent social objective of Chapter VIII of the Act is not defeated and economic justice is secured to the claimants. To enforce the statutory duty cast On the insurer in terms of Sub-sections (2) (b) and (5) of Section 95 and Section 96 of the Act is well within the competence of this Court acting in its writ or even in its supervisory jurisdiction under Article 227 of the Constitution as the Tribunal erroneously failed to do so. It is settled law that Mandamus will issue in appropriate cases even when there is an alternative remedy. Thus, the court will exercise its discretion, in a case where justice of the case demands, to issue appropriate directions to give relief to any party before it when the grievance flows from the breach by an adversary of any statutory duty resulting in economic injustice and the constitutional goal in this regard being frustrated.
15. Accordingly, we direct that the respondent No. 10, the New India Insurance Co. Ltd., shall deposit with the Tribunal the balance amount of the award, namely, Rs. 13,000/, together with the balance of costs and also the interest as per the award, to discharge their statutory liability under the award within a period of two months whereupon the Tribunal shall record satisfaction of the award and arrange disbursement of the amount to the claimants-respondents. We may, in this connection, make it clear that as per award of the Tribunal the claimants are entitled to interest @ 6% per annum from the date of filing the claim petition (namely 27-11-1962) till satisfaction of the award which was within its competence to award in addition to the compensation, held by a Full Bench of this Court in AIR 1977 Gauhati 31 (Hira Devi v. Bhaba Kanti). We could not however, ignore the glaring and distressing fact that for long 21 years the claimants have been deprived of their just dues. We, therefore, feel persuaded to give a further direction in this case that if the full amount, as directed herein, is not paid within the time fixed the future interest beyond the period allowed shall be paid @ 12% per annum. We are giving this direction with a view to compelling the insurer to make timely payment to mitigate the classic suffering of the poor claimants who have yet to see the light of the dawn, of hope and fulfilment, after years of hard struggle through the dark days of deaths and despair.
16. In the result the petition is allowed and the rule is made absolute in terms of the above direction. We make no order as to costs of the proceeding in this court in the fact and circumstances of the case.
17. I am in respectful agreement with my learned brother. Indeed, I have left relieved in our having been able to come to the rescue of the heirs of the deceased (a young typist aged about 21 years) who would not have got anything more than the paltry sum of Rs. 3,500/-(which includes cost and interest) by pursuing against the petitioners or the Company. This concurring note is only to state that if there be any doubt in any mind about the applicability of that part of Clause (b) of Section 95(2) of the Act, which has been highlighted in the main judgment, because of the fact that the deceased could be said to be travelling in the bus not 'in pursuance of a contract of employment' with the Company (that is, the owner of the vehicle), Clause (c) of this sub-section wi11 then undoubtedly operate, as Clause (a) is apparently not attracted, inasmuch as the vehicle in question was not a goods vehicle, and as the other part of Clause (b) cannot apply because the deceased was not a passenger being carried for hire or reward. So, the insurer cannot limit its liability in any case, as under Clause (c) the liability of the insurer extends to 'the amount of the liability incurred.'
18. A word is also needed for our moulding the relief. Though the petitioners have approached this court principally to quash the order dated 16-8-78 by which the liability of the Company was fastened on them, they have also prayed to 'pass such further or other order or direction', as this court may deem fit and proper. As the total exoneration of the Company, in the sense of making the insurer fully liable for the award, will give full relief to the petitioners, the absence of a specific prayer to this effect has not been deemed sufficient by us to deny this relief to do complete justice between the parties because of these pronouncements of the apex court. It has been stated in Charanjit Lal v. Union of India, AIR 1951 SC 41 that Article 32 has given very wide discretion in the matter of framing writs to suit the exigencies of particular cases and an application cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for. I have no doubt that what has been stated about Article 32 in this regard applies proprio vigore to Article 226, as the language in so far as framing of writs is concerned, is similar in the two articles. In Satya Narayan v. District Engineer. AIR 1962 SC 1161, appropriate relief was granted because of the prayer for grant of 'other relief' in the petition. (See para 11). In the present case, the petitioners have prayed, apart from quashing of the order dated 16-8-1978 to 'pass such further or other orders' as may be deemed fit and proper. In State of Haryana v. Haryana Co-operative Transport Limited AIR 1977 SC 237, the mere circumstances of the petitioner not asking for a writ of quo warranto in so many words was not regarded as sufficient not to entertain that question, as facts necessary for challenging the appointment had been clearly stated in the petition. It was stated that the petitioner had invited the Court to issue such other suitable writs, order or direction (apart from the writ of certiorari which was thought inappropriate) as the Court deemed fit and proper. It was also observed that there was no magic in the use of a formula. B.R. Ramabhadriah v. Secy., Food and Agricultural Department, AIR 1981 SC 1653 saw the Supreme Court again stating that relief may be moulded to mete out justice and it should not be denied on purely technical and. narrow procedural grounds.