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Oriental Fire and General Insurance Co. Ltd. Vs. Aleixo Fernandes and Others - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai High Court
Decided On
Case NumberFirst Civil Appeal No. 17 of 1984
Judge
Reported inAIR1986Bom280; [1987]61CompCas130(Bom)
ActsMotor Vehicles Act, 1939 - Sections 92A, 92B, 92C, 95(5) and 96
AppellantOriental Fire and General Insurance Co. Ltd.
RespondentAleixo Fernandes and Others
Excerpt:
.....sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. it is, therefore, clear that the mentioned of the word 'insurer' in that section is really not necessary and the argument of the appellant should, therefore, fail. the grievance of shri bharne is that in spite of this defence being available and despite a duty being clearly cast by the amended rule 18, no inquiry or whatsoever nature was held and no opportunity was provided for the appellant to..........sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. 92b. provisions as to other right to claim compensation for death or permanent disablement. - (1) the right to claim compensation under section 92a in respect of death or permanent disablement of any person shall be in addition to any other right (hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this.....
Judgment:

Kamat, J.

1. Respondent No. 1 in Claim Petition No. 8 of 1983 succeeded in obtaining an order for compensation under section 92A of the Motor Vehicles Act. This order of payment of compensation is challenged in the present appeal by the appellant-insurers. The claim petition filed by the first respondent before the Motor Accidents Claims Tribunal at Margao is yet to be decided on merits.

2. In his application under section 92A, respondent No. 1 mention that his right lower limb gets swollen very often and the full right lower limb is paralysed on account of improper circulation of blood. In his claim petition, he has listed several injuries that are caused to him as a result of the accident, namely, fracture of right humerus; fracture of middle mallealus; fracture of left clavicle; fracture of right wrist bone; fracture of right shine bone; dislocation of right ankle; dislocation of right knee; injury and deep wound on the right thigh; injury and a deep wound on the left and back side of head and internal haemorrhage. Respondents Nos. 2 and 3, the driver and the owner respectively of the vehicle involved in the accident, have denied the injuries and have put the claimant to strict proof in relation thereto. In the written statement filed by the insurer, it is their case that although the motor cycle bearing registration number plate GDF-7343 is involved in the accident, at the relevant time it was being driven by respondent No. 1 without a valid licence and, therefore, they have denied their liability to pay any compensation, thereby refusing to indemnify to owner, respondent No. 3.

3. In so far as the present order is concerned, Shri H. R. Bharne, learned counsel for the insurer, has challenged the same mainly on three grounds.

4. Coming to challenge No. 1, he mentions that the Tribunal has made the impugned order without holding any inquiry into the nature of the injuries and, therefore, without determining whether the injuries sustained have caused permanent disablement to the claimant/respondent No. 1. It is his case that amended rule 18 of the Motor Accidents Claims Tribunal Rules, 1966, casts a duty on the Tribunal to hold at least some sort of summary inquiry and a finding must be rendered whether the injuries have led to permanent disablement and it is only then that the Tribunal can order payment of compensation under section 92A. As against this, Shri Rebello, learned counsel for the claimant, has contended before me that the insure ought to be confined only to certain challenges. Referring to section 96 of the Motor Vehicles Act, he points out that only limited defences are available to the insurer and it is not open to the insurer to challenge the injuries sustained by the victim of an accident. It is, therefore, urged that the appellant-insurer cannot be heard on this question in this appeal and it is further mentioned that the persons who could have challenged the injuries are respondents Nos. 2 and 3 who have not chosen to file any appeal against the impugned order. It must be stated that the objection by Shri Rebello is well taken and in view of the limited defences available to the insurer, their challenge, even in so far as the award is concerned, ought to be limited and it is not open to the insurer to challenge the impugned order on that score in the present appeal.

5. The second challenge by Shri Bharne is that under section 92A of the Act, there is no liability cast on the insurer to make any compensation. Placing reliance on the very section, he points out that it has been clearly stated that only the owner of the vehicle is made liable and insurer is excluded. He urges that if it had been the intention of the Legislature to make the insurer liable under section 92A, the very section would have mentioned 'the owner of the vehicle and/or insurer'. He, therefore, urges that inasmuch as section 92A contemplates no fault liability, the burden of making peremptory compensation under that section is clearly left to the owner of the vehicle and not to the insurer.

6. It must be stated at the outset that sections 92A, 92B, 92C, 94D and 94E are introduced in the parent Act by an amendment which is brought into force on October 1, 1982. These new sections have been incorporated by addition of a new Chapter called Chapter VIIA and along with this amendment, a few more existing sections have been amended and they are section 93, 95, 109A, 109B, 109C, 110, 110A, 110B, 110CC and some more. It must also be mentioned that for the first time the law-makers have thought it fit to make a peremptory order awarding compensation of a sum of Rs. 15,000 to the dear and near ones of the deceased victim of an accident and a sum of Rs. 7,500 to a victim of an accident by way of no fault liability during the pendency of the main claim petition. It is further mentioned that an application under section 92A should be disposed of expeditiously and the amended rule provides a period of 45 days to make such order of payment from the receipt of the said application.

7. To appreciate the argument on behalf of the insurer, it may be necessary while interpreting section 92A to consider a few more sections of the Act.

8. Section 92A reads thus :

'92A. Liability to pay 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.

(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifteen thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of seven thousand five hundred rupees.

(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.

(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.

92B. Provisions as to other right to claim compensation for death or permanent disablement. - (1) The right to claim compensation under section 92A in respect of death or permanent disablement of any person shall be in addition to any other right (hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.

(2) A claim for compensation under section 92A in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 92A and also in pursuance of any right on the principle of fault, the claim for compensation under section 92A shall be disposed of as aforesaid in the first place.

(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 92A is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first mentioned compensation and -

(a) if the amount of the first mentioned compensation is less than the amount of the second mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;

(b) if the amount of the first-mentioned compensation is equal to or less than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.

92C. Permanent disablement. - For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 92A if such person has suffered by reason of the accident any injury or injuries involving -

(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or

(b) destruction or permanent impairing of the powers of any member or joint; or

(c) permanent disfiguration of the head or face.

92D. Applicability of Chapter to certain claims under Act 8 of 1923. - The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen's Compensation Act, 1923, resulting from an accident of the nature referred to in sub-section (1) of section 92A and for this purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act.

92E. Overriding effect. - The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force.'

9. Section 95(5) reads thus :

'(5) Notwithstanding 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 of persons.'

10. Section 96 of the Act reads thus :

'96. Duty of insurers to satisfy judgments against persons insured in respect of third party risks. - (1) If, after a certificate of insurance has been issued under sub-section (4) of section 95 in favour of the person by whom a policy has been effected, 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 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.'

11. From these sections, it will be seen that under sub-section (5) of section 95, the insurer issuing a policy of insurance 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 of persons. Section 96 speaks of the duty of the insurer to satisfy judgment against persons insured in respect of third party risks. This section lays down that when a judgment in respect of any 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 then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree in a sum not exceeding the sum assured as if he were the judgment-debtor, in respect of that liability, together with any amount payable in respect of costs and any sum awarded by way of interest.

12. So, from a combined of section 92A, sub-section (5) of section 95 and section 96 of the Act, it is clear that the insurer has to indemnify a person who is covered under a policy and, if he is required to satisfy a judgment made against such person, even pay directly the third party (claimant). I am, therefore, unable to accept that the insurer is or can be excluded from the liability to pay under section 92A. What emerges from the above-cited provisions of the Motor Vehicles Act is that it is really speaking, not a question of the insurer being omitted from section 92A. Likewise, reading the word 'insurer' in section 92A is not necessary. Section 92A casts a liability on the owner of the vehicles. By virtue of the cover of insurance, the insurer is bound to pay the awarded amount. It is, therefore, clear that the mentioned of the word 'insurer' in that section is really not necessary and the argument of the appellant should, therefore, fail. This interpretation lends support inasmuch as section 93 has been amended by the incorporation of another sub-clause (ba) where the word 'liability' has been explained. This sub-clause states that liability, wherever used in relation to the death of, or bodily injury to, any person, includes liability under section 92A. Coming back to sub-section (5) of section 95, it speaks of the insurer indemnifying the persons or classes of persons specified in the policy in respect of any liability. Mere omission of the word 'insurer' in section 92A cannot exclude the insurer from the liability as long as the vehicle involved in the accident is duly covered by a certificate of insurance granted by the insurer.

13. I can advantageously refer to a contention placed by Shri H. R. Bharne, learned counsel for the insurer, that in the matter of section 92A, defences under section 96(2) are available. If this be so, then let it be seen that section 96 makes the insurer pay the amount ordered in the judgment to the claimed and, therefore, it is difficult to accept that the insurer is entitled to be kept out of the award of peremptory compensation under section 92A. It is no doubt true that in so far as section 96 is concerned, indemnification by the insurer has been restricted to the fault liability and as per the present section 92A, it is a compensation based on no fault liability but I an unable to find or make any distinction between an award of fault liability or no fault liability because of section 92B (3).

14. Coming to the last contention of Shri Bharne, it is contended on behalf of the insurer that inasmuch as a defence available to the insurer under section 96(2) of the Act having been raised, a duty is cast on the Tribunal not to have made the impugned order for payment of compensation in so far as the appellant is concerned, because respondent No. 2 was driving the vehicle involved in the accident without a valid driving licence. The grievance of Shri Bharne is that in spite of this defence being available and despite a duty being clearly cast by the amended rule 18, no inquiry or whatsoever nature was held and no opportunity was provided for the appellant to prove their contention. He fairly conceded that in the matter of defence that the driver is not covered by a driving licence, the onus is clearly cast on the insurer to prove that fact, but his complaint is that the Tribunal did not allow the appellant even to lead summary evidence in that behalf. He argues that under the terms of the policy, the appellant is liable to avoid the contract of insurance and, therefore, inasmuch as the driver involved in the accident was not covered by a driving licence, there is no question of the insurance company paying any amount as ordered by the Claims Tribunal. In this connection he placed reliance on section 92 Bread with amended rule 18 of the Gao, Daman and Diu Motor Accidents Claims Tribunal Rules, 1966.

15. By the amendment, a proviso has been inserted to principal rule 18 which reads :

'Provided that in the case of a claim under Chapter VIIA of the Act, the Claims Tribunal shall proceed to award the claim on the basis of - (i) registration certificate of the motor vehicle involved in the accident;

(ii) insurance certificate of policy relating to the insurance of the vehicle against third party risks;

(iii) copy of the first information report;

(iv) post-mortem certificate or certificates of injury from the medical officer;

(v) the nature of the treatment given by the medical officer who has examined the victim :

Provided further that the Claims Tribunal shall follow the procedure of summary trial as contained in the Code of Criminal Procedure, 1973, (Central Act 2 of 1974), for the purpose of adjudicating and awarding a claim under Chapter VIIA of the Act :

Provided further that the Claims Tribunal shall dispose of an application made under Chapter VIIA of the Act within 45 days from the date of receipt of such application.'

16. From the aforesaid proviso, it is clear that the Tribunal has to proceed to make a compensation award on the basis of registration of certificate of the motor vehicle involved in the accident; insurance policy relating to the insurance of the vehicle against third party risks; copy of the first information report; post-mortem certificate or certificates of injury from the medical officer; the nature of the treatment given by the medical officer who has examined the victim. It is provided further that the Claims Tribunal shall follow the procedure of summary trial as contained in the Code of Criminal Procedure, 1973. For the purposes of adjudicating and awarding compensation under the new Chapter VIIA, proviso to rule 18 has been introduced. At the same time, a duty has been cast, as mentioned earlier, that applications under section 92A shall be disposed of within a period of 45 days from the date of receipt of such application.

17. From the above, it will be seen that a summary trial is contemplated for making an award or order under section 92A, but, however, it is limited to items Nos. 1 to 5 mentioned above.

18. Mr. Bharne's grievance is that so long as the defence of the driver having no licence is available to deny and avoid liability under the insurance policy and, therefore, the whole claim of any claimant on the same basis, there cannot be any question of the insurer being made to pay without the Tribunal considering that defence and it is, therefore, mandatory on the Tribunal to permit the insurer to produce its defence even under rule 18 read with section 92B of the principal Act. It is true that if the insurer is able to prove that the driver was not covered by a valid licence, an award would not be made against them by the Tribunal and in that event the award would be restricted only in so far as the driver and owner of the vehicle are concerned. The question, therefore, that arises in this matter is at what stage the insurance company is permitted to raise whatever defences that are available to them under section 96. It we strictly go by the object and policy of the amended section read with rule 18 of the Rules, it is obvious that the nature of inquiry contemplated would only be restricted to items Nos. 1 to 5 mentioned in the Rules. The defence as presently raised by the insurer is naturally an issue in the main petition and it will have to be disposed of in that petition and perhaps by an elaborate evidence. This type of evidence for disposed of an issue which is required to be dealt with in the main petition cannot be permitted to be raised at the stage of making of an order under section 92A and in this view of the matter, I am unable to accept Shri Bharne's challenge to the impugned order. It must be seen that section 92A speaks of peremptory award of Rs. 15,000 in case of death and Rs. 7,500 in case of permanent disability. The object underlying this provision is immediate benefit to the relations of the victim in case of his death and to the disabled victim of the accident in case of permanent disability. In construing social welfare legislation, the court should adopt a beneficent rule of construction and in any event, that construction should be preferred which fulfils the policy of the legislation. Construction to be adopted should be more beneficial to the purposes in favour of and in whose interest the Act has been passed.

19. The further question that arises is if the insurance company succeeds in the defence that has been taken that at the relevant time, respondent No. 2, driver, was not covered by a valid driving licence and, therefore, they are entitled to avoid their liability for payment under the insurance policy, what is to happen when the insurer is made to pay the compensation under section 92A. Under section 110B, the Tribunal has been empowered to make an award determining the amount of compensation which appears to it to be just and specify the person or person to whom compensation shall be liable to be paid and also, in making the award, it has power to specify the amount that shall be paid by the insurer or the owner or the driver of the vehicle involved in the accident or by all or any of them, as the case may be. The question as to whether the insurer if he is able to establish the case in avoiding the liability of payment under any of the defences under section 96 of the Act and when ordered to make any payment under section 92A, the owner can be ordered to indemnify the insurer need not be presently decided in this appeal.

20. The insurance company in this case has deposited a sum of Rs. 7,500, at the time of the admission of this appeal. Respondents Nos. 2 and 3, driver and owner, are, however, not before me although they are made parties and they have been duly served with notices of this appeal. Since the question whether the appellant is entitled to be indemnified by the owner of the vehicle, respondent No. 3, in the event the appellant is able to establish its defence under section 96, is left open in the circumstances of this case, I direct the Tribunal to obtain a security bond in the amount of Rs. 7,500 from respondent No. 3 so as to cover the appellant if the Tribunal comes to hold that the insurer is not liable to pay under section 92A in the event the claim petition is dismissed as against the appellant. The sum of Rs. 7,500 deposited in this court shall be transferred to the Motor Accidents Claims Tribunal, Margao, and respondent No. 1 shall be entitled to receive the same from the Tribunal.

21. In this view of the matter and subject to the aforesaid observations, the appeal fails. In the circumstances of the case, there shall be no order as to costs.

22. Appeal dismissed.


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