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Oriental Fire and General Insurance Company Ltd. Vs. Aleixo Fernandes and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported inII(1990)ACC246
AppellantOriental Fire and General Insurance Company Ltd.
RespondentAleixo Fernandes and ors.
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, mention 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 in spite of this defence being available and despite a duty is clearly cast by the amended rule 18 no inquiry of whatsoever nature was held and no opportunity provided for the appellant to prove their..........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 92 a in respect of death or permanent disablement of any person shall be in addition to any other right thereafter 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.....
Judgment:

G.D. Kamat, J.

1. Respondent 1 in Claims Petition No. 8/83 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 Accident Claims Tribunal at Margao is yet to be decided on merits.

2. In his application under Section 92A respondent 1 mentions 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 shin bone; dislocation of right ankle; dislocation of right knee; injury and a deep wound on the right thigh, injury and a deep wound on the left and back side of head and internal hemorrhage. Respondents 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 stricture of 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 1 without a valid licence and therefore they have denied their liability to pay any compensation, thereby refusing to indemnify the owner respondent 3.

3. Insofar 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 injuries into the nature of the injuries and therefore without determining whether injuries sustained have caused permanent disablement to the claimant respondent 1. It is his case that amended Rule 18 of the Motor Accident 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 Rebcllo, learned Counsel for the claimant has contended before me that the Insurer ought to be confined to only 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 person who could have challenged the injuries are respondents 2 and 3 who have not chosen to file any appeal against the impugned order. It must be stated that the objection by Shri Rebcllo is well taken and in view of the limited defences available to the Insurer their challenge even insofar 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 he intention of the legislator to make Insurer liable under Section 92A the very Section would have mentioned 'the owner of the vehicle and order the 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 Section 92A, 92B, 92C, 94D and 94E are introduced in the Parent Act by an amendment which is brought into force on 1st October 1982. These amended 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 Sections 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 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 few more Sections of the Act.

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 form 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 owner of the vehicle 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 vehicle 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 92 A in respect of death or permanent disablement of any person shall be in addition to any other right thereafter 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 of joint; or

(b) Destruction or permanent impairing of the powers of any member of 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.

Section 95(5) reads thus:

(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 of persons. 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 there under, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and. any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

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 person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of the person or those classes of persons. Section 96 speaks of duty of Insurer to satisfy judgment against persons insured in respect of third party risk. 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 (sic) 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 cost or any sum awarded by way of interest.

8. So a combined reading of Section 92A, Subjection (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 per can be excluded from the liability to pay under Section 92A. What emerges from the above cited provision of the Motor Vehicles Act is that it is really speaking not a question of Insurer being omitted from Section 92A. Likewise reading the word insurer in Section 92A is not necessary. Section 92A casts 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, mention 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 liability her ever used in relation to the death or body injury to any person includes liability under Section 92A. Coming back to Sub-Section (5) of Section 95 it speaks of insurer indemnifying he person or classes of persons specified in the policy in respect of any liability (emphasis is mine). Mere omission of the word 'Insurer' in Section 92A cannot exclude 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.

9. 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 claimant 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 insofar as Section 96 is concerned indemnification by the insurer has been restricted to the fault liability and the present Section 92A it is a compensation based on no fault liability but I am unable to find or make any distinction between an award of fault liability or no fault liability because of Section 92B (3).

10. 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 insofar as the appellant is concerned because the respondent No.2 was driving the vehicle involved in the accident without a valid driving licence. The grievance of Shri Bharne is in spite of this defence being available and despite a duty is clearly cast by the amended Rule 18 no inquiry of whatsoever nature was held and no opportunity 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 onus is clearly cast on the Insurer to prove that fact, but his complaint is that the Tribunal did not allow the appellant to even 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 case of Insurance Company paying any amount as ordered by the Claims Tribunal. In this connection he placed reliance on Section 92-B read with amended Rule 18 of the Goa, Daman and Diu Motor Accident Claims Tribunal Rules. 1966.

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 shaft 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 Criminal Procedure Code, 1973 (Central Act 2 of 1974), for the purpose of adjusting 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:

From the aforesaid proviso it is clear that the Tribunal has to proceed to make a compensation award on the basis of registration of the certificate of 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 obvious further that the Claims Tribunal shall follow the procedure of summary trial as contained in the Criminal Procedure code, 1973. For the purposes of adjudicating and awarding a 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 application under Section 92 A shall be disposed of within a period of 45 days from the date of receipt of such application.

From the above it will have to be seen that a summary trial is contemplated for making an award or order under Section 92A but how ever it is limited to Items Nos. 1 to 5 mentioned above.

11. Mr. Bharne's grievance is that so long as the defence of 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 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 that Section 92B of the principal Act. It is true that if the insurer is able to prove that the driver was not covered by valid licence an award would not be made against them by the Tribunal and in that even the Award would be restricted only insofar as the driver and owner of the vehicle is concerned. The question therefore that arises in this matter is at what stage the Insurance Company is permitted to raise whatever defences available to them under Section 96: If 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, 1 to 5 mentioned in the Rules. The defence as presently raised by the insurer is naturally in issue an the main petition and it will have to be disposed of in the main petition cannot be elaborate evidence. This type of evidence for disposal of an issue which is required to be dealt with in the main petition cannot be permitted to be raised at the stage of the making of an order under Section 92A speaks of peremptory 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.7500/- 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 the disabled victim of the accident in case of permanent disability. In construing social welfare legislation, the courts should adopt a beneficient rule of construction and in any event, that construction should be preferred which fulfills 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.

12. The further question that arises is if the Insurance company succeeds in the defence that has been taken that at the relevant time the respondent No. 2 Driver was not covered by valid driving licence and therefore they are entitled to avoid their liability for payment under the insurance policy what is to happen when 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 persons 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 able to establish the case in avoiding the liability of payment under any of the defences under Section 96 of the Act and when they are 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.

13. The Insurance Company in this case has deposited a sum of Rs.7500/- at the time of the admission of this appeal. Respondents 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 indemnify from the owner of the vehicle respondents 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.7500/- from respondent 3 so as to cover the Appellant if the Tribunal comes to hold that the Insurer is not liable to pay under Section 92 A in the event claim Petition is dismissed as against the appellant. The sum of Rs. 7500/- deposited in this Court shall be transferred to the Motor Accident Claims Tribunal, Margao and the respondent 1 shall be entitled to receive the same from the Tribunal.

14. 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.


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