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Gattu Prabhakar and anr. Vs. Thummanapalli Brahmaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 415 of 1985
Judge
Reported inAIR1986AP173; [1987]62CompCas710(AP)
ActsMotor Vehicles Act, 1939 - Sections 92A and 110A
AppellantGattu Prabhakar and anr.
RespondentThummanapalli Brahmaiah and ors.
Appellant AdvocateV. Ravikiran Rao, Adv.
Respondent AdvocateK. Raghavachary, Adv.
Excerpt:
.....is not made liable for amount under award then object of legislation for compulsory insurance will be defeated - not possible to accept contention of insurer that because of speedy enquiry contemplated in proceeding under section 92a and so called lack of particulars for pleading it should not be made liable for compensation - held, insurance company liable to proceeding under section 92a. - - 92-a of the act impleading the owner as well as the insurance company as respondents. if the insurer is not liable for the amount under this award, the object of the legislation for compulsory insurance will be defeated. in spite of several provisions mentioned above it is well-nigh impossible for a victim to get the insurance particulars......under that provision. the order of the tribunal to the extent holding that the insurance company is not liable is set aside and the appeal is allowed. the insurance company is also liable in proceedings under s. 92-a in the same manner the owner is liable for the claims under s. 110-a of the act. as a result the appellants and the insurance company are jointly and severally liable for the claim in this case. no costs.11. appeal allowed.
Judgment:

1. This is an appeal under S. 110-D of the Motor Vehicles Act by the owner of the vehicle against whom an order has been passed by the Tribunal imposing the liability under S. 92-A of the Act. The owner is not questioning his own liability nor is he questioning the entitlement of the persons who have claimed the compensation. But, he is aggrieved by the order of the Tribunal to the extent it has held that the Insurance Company is not liable for the liability without fault under S. 92-A of the Act. I have heard the counsel for the appellant and the counsel for the Insurance Company.

2. In an accident on 6-9-1983 with Lorry API 962 the deceased aged 25 years was killed. His parents, sisters and unmarried brother have filed a claim petition O. P. No. 4930/1983 on the file of the Motor Accidents Claims Tribunal, Karimnagar District u/s. 92-A of the Act impleading the owner as well as the Insurance Company as respondents. The fact that the vehicle was insured with the respondent-Insurance Company is not in dispute. It is represented that another claim petition for payment of compensation under S. 110-A is also filed and is pending. The short questions in the appeal is whether an Insurer is liable to pay the amount awarded under S. 92-A of the Act ?

3. Chapter VIIA in which S. 92-A finds a place, was introduced by Act 47 of 1982 with effect from 1-10-1982. The said Chapter provides for determination of liability and payment of compensation in case of death or bodily injury in a motor accident without need nor establishment of wrongful act, neglect or default of the owner of the vehicle or vehicles concerned. The Chapter has been introduced by the Parliament with a view to provide for speedy payment of compensation to the victims of the motor vehicle accidents of their heirs. This payment is to be without prejudice to the award or compensation in a regular enquiry on a claim filed under S. 110-A of the Act. However, in view of S. 92-(B) 3 the amount paid under this Chapter is to be taken into consideration at the time of any award in proceedings under S. 110-A. S. 92-E gives overriding effect to the provision of this Chapter. The Tribunal has held that having regard to the language of S. 92-A it is the owner of the vehicle who is made liable to pay compensation. According to it, as there is no mention of the Insurance Company or its liability for the said compensation in S. 92-A there cannot be an award against it.

4. The counsel for the owner has contended that Chapter VII-A has been introduced only to give immediate relief to the victims of accidents. If the Insurer is not liable for the amount under this award, the object of the legislation for compulsory insurance will be defeated. The Counsel for the Insurance Company has adopted the reasoning of the Tribunal and supported its order. His contentions fall under two broad headings (1) a plain reading of the language of S. 92-A would show that in a summary proceedings without going into the question of any fault or negligence, the liability of the Insurance Company will not arise. Only if an award is passed after an enquiry of a claim under S. 110A the Insurer will be liable and (2) that within the shore period for the award for compensation under this chapter, it is generally not possible for the Insurance Company to get the particulars of the Insurance of Vehicle or even to ascertain the fact whether the vehicle is insured and, if so, with which company and hence wide interpretation should not be given to the provision imposing liability. He has pointed out that no provision in Chapter VII-A refers to or impose liability on the Insurer similar to those in the other chapter i.e., Chapter VIII of the Act. He has also urged that under the other provisions of the Act there is no direct liability on the Insurance Company. The primary liability is that of the owner of the vehicle. In view of the statutory requirement for the vehicle to be insured, the Insurance Company is, according to him, made liable to the extent indicated in the Act or in the policy along with the owner and this liability ought not to be excluded without a specific provision in proceedings under S. 92-A of the Act.

5. Section 95 which deals with the requirements of Insurance Policies and limits of liability shows that the Insurer under the Policy has to insure the person or classes of persons specified in sub-sec (2) against any liability which may be incurred by the owner in respect of the death or bodily injury to any person or damage to any third party. The liability of the owner under S. 92-A is nothing else but a liability in respect of death or bodily injury to the victim. The only difference is of a speedy summary enquiry in which the fault of any person is not relevant but it is confined to identification of the victim and vehicle in the accident. It is not possible to hold that S. 92-A or any other provision excluded the liability which is case on the Insurance Companies by the clear language S. 95 (1) (b) read with S. 95 (2). S. 92 (2) specifically provides for the cases where the Insurance Company is not liable and the limits of its liability.

6. It is significant to note that under S. 92B (3) the amount paid under this Chapter is to be taken into consideration at the time of any award in proceedings under S. 110-A of the Act. If the contention of the Insurance Company is to be accepted, its liability to the extent of the award under S. 92-A will be excluded from an award after an enquiry under S. 110-A. This is because the Tribunal, while dealing with the claim under S. 110-A will certainly exclude the liability to the extent of payment already made under the earlier summary award. This will, not only be inconsistent with the statutory provisions, but would reduce the liability of the Insurance Company for the first Rs. 15,000/- or the amount awarded under S. 92-A which is neither provided for in any statutory provision nor is the object of providing the summary remedy.

7. The Andhra Pradesh Motor Vehicles Rules, 1964 have been amended by G. O. Ms. No. 375 Transport, Road and Buildings Department dated 9-8-1963 (i.e. after the insertion of Chapter VII) by introducing new R. 533-A. The said Rules and the Forms appended show that the Insurance Company is also to be impleaded as a party to a Claim Petition under S. 92-A. The State Government which is a rule-making authority has also understood that in proceedings under S. 92-A, the Insurance Company is one of the parties who may be liable. The learned counsel for the appellant-owner has also placed reliance on a case reported in Oriental Fire and General Ins. Co. Ltd v. Beasa Devi, of the Punjab and Haryana High Court in which it is held that the insurance company is also liable for the compensation awarded under Chapter VII-A. This seems to be the only case of any High Court on this aspect so far.

8. For the other contention of the learned counsel for the Insurance Company about the difficulties of the Insurance Companies in view of the short time during which the claims under S. 92-A to be decided and, therefore, requesting for an interpretation excluding its liability certain statutory provisions have to be noticed.

9. Chapter VII of the Motor Vehicles Act, 1939, entitled 'Insurance of Motor Vehicles against Third Party Risks' provides for a compulsory insurance of all the vehicles against third party risk by S. 94, S. 95 lays down the requirements of policies and limits of liability of the Insurance Company. These provisions are made for the benefit of the victims of the accidents due to motor vehicles on the roads. The business of the accident insurance of the motor vehicles as contemplated by the Act is carried on by a Government of India Undertaking i.e., General Insurance Corporation through its four subsidiary Companies, which are in a way sister companies. The Corporation is an instrumentality of State activity. For a victim of road accident the particulars of an Insurance of the Vehicle are necessary for filing a claim or getting any relief S. 87 of the Act casts a duty on the driver of a vehicle to give the particulars mentioned in it to any Police Officer whenever it is demanded by Police Officer. S. 103 (a) makes an insurer liable to a third party on its issuing a certificate of Insurance. S. 106 requires that a person driving a vehicle shall on being required by a Police Officer produce the certificate of Insurance of the vehicle. S. 107 provides for rules being made by a State Government requiring the owner of a motor vehicle when applying whether by payment of tax or otherwise for authority to use the vehicle to produce such evidence as may be prescribed by the rules that on the date when authority to sue the vehicle comes into operation, there will be in force the necessary policy of insurance. The motor vehicles are registered and authorised to use the vehicle by an authority under the Act in each State. The registration number and particulars of a vehicle are, therefore, available only on a State-wise basis. According to S. 109 of the Act, a registering authority under the Act or officer in charge of a Police Station shall, if so required by a person who alleges that he is entitled to compensation provide any information at the disposal of the said authority or the said police officer relating to the identification marks and other particulars of the vehicle.

10. The difficulty of a victim or a claimant in getting the particulars of an insurance certificate or a policy for making a claim have to be visualised. In spite of several provisions mentioned above it is well-nigh impossible for a victim to get the insurance particulars. After an accident, the victim, if alive, would probably be lying in a hospital; if he is dead, his heirs would not be in a position to hunt-out for the particulars of the insurance policy of the vehicle. It is not uncommon that vehicles registered in one State, particularly heavy vehicles, ply on other States. It is also not uncommon that drivers may not have the particulars of the insurance policy of the vehicle. The owners are in several cases ex parte in the Tribunal., thus depriving the claimants getting any particulars regarding insurance policy even from them. This is also evident from the facts that in several cases the police are not able to record the particulars of the insurance at the time of the arrest of the driver or seizure of the vehicle. It is also not possible to know whether the vehicle has a subsisting insurance policy and the name of the insurance company. The aforesaid statutory provisions do not contain any direct obligation on the insurance company, to give a reply on demand as to whether a particular vehicle was insured with it or not. In several cases, even where insurance companies are impleaded the usual plea taken by them is that in the absence of the particulars of a policy they are not liable. After the phenomenal growth of inter-State road transport industry and the use of vehicles, it is difficult for victim to get the particulars of an insurance of the vehicle involved in the accident. A clear statutory provision requiring the registering authority to maintain a record of the insurance particulars to each vehicle authorised by it to use it may be one remedy. The making of insurance companies responsible to give particulars whether a particular vehicle is victim may be the other. The registering authorities should ensure that the insurance policy is in force not only on the date when the authorisation comes into force but also for a minimum period of one year thereafter, where it is an annual authorisation. But the absence of such a statutory provision cannot frustrate the object of the legislation which is made for the benefit of the victims. The insurance companies are all subsidiaries of a Public Sector Corporation. The fact whether a particular Insurance Company has insured as vehicle or not is within its knowledge. Taking of a bald plea of lack of particulars of Insurance Policies is not only unjust but opposed to the object of the legislation. As observed earlier, the motor vehicles are registered on a Statewise basis, which is again sub-divided into Districtwise basis by assigning separate registration numbers. It is not difficult for a Corporation or its subsidiary, particularly when it is a Government undertaking to maintain its records and data and systems which will immediately enable it to know whether a particular vehicle is insured by it or not. In the days of computers and Telex it will not be difficult for the branch of an Insurance Company located in a city to immediately give such particulars to a claimant. It will also be not difficult for a particular Insurance Company to get the data from the other Insurance Companies, if necessary appropriate fee can be collected for providing this information. But the Insurance Companies cannot take advantage of the so-called lack of particulars for pleading that they are not liable and that an interpretation should be put on the provisions of S. 92-A excluding their liability on the ground that it is difficult for them to get the necessary particulars. In fact, the obtaining of particulars of insurance is more difficult for a victim than for an Insurance Company. If the records continue to be maintained as they are at present that is with reference to an insurance policy and not with reference to a vehicle, the very object of beneficial legislation will be lost. In the circumstances, I do not accept the contention of the counsel for the Insurance Company that because of the speedy enquiries contemplated in proceedings under S. 92A and the so-called difficulties of the Insurance Company in getting the particulars it should not be held liable for compensation in proceedings under that provision. The order of the Tribunal to the extent holding that the Insurance Company is not liable is set aside and the appeal is allowed. The Insurance Company is also liable in proceedings under S. 92-A in the same manner the owner is liable for the claims under S. 110-A of the Act. As a result the appellants and the Insurance Company are jointly and severally liable for the claim in this case. No costs.

11. Appeal allowed.


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