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G. Prabhakar and anr. Vs. Thummanapalli Brahmaiah and anr. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in2(1986)ACC346
AppellantG. Prabhakar and anr.
RespondentThummanapalli Brahmaiah and anr.
Excerpt:
.....in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - 493 of 1984 on the file of the motor accidents claims tribunal, karimnagar district under section 92-a of the act, imp leading the owner as well as the insurance company as respondent. if the insurer is not liable for the amount under this award, the object of the legislation for compulsory insurance will be defeated. inspite of several provisions mentioned above it is well-nigh impossible for a victim to get the insurance particulars......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 section 92-a of the act. i have heard the counsel for the appellant and 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 brothers have filed a claim petition o.p. no. 493 of 1984 on the file of the motor accidents claims tribunal, karimnagar district under section 92-a of the act, imp leading the owner as well as the insurance company as respondent. 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.....
Judgment:

Upendralal Waghray, J.

1. This is an appeal under Section 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 Section 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 Section 92-A of the Act. I have heard the counsel for the appellant and 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 brothers have filed a claim petition O.P. No. 493 of 1984 on the file of the Motor Accidents Claims Tribunal, Karimnagar District under Section 92-A of the Act, imp leading the owner as well as the insurance company as respondent. 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 Section 110-A is also filed and is pending. The short question in the appeal is whether an insurer is liable to pay the amount awarded under Section 92-A of the Act ?

3. Chapter VII-A in which Section 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 bodity injury in a motor accident without need for establishment of wrongful act, neglect or default of the owner of the vehicle or vehicles concerned. This 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 or their heirs. This payment is to be without prejudice to the award of compensation in a regular enquiry on a claim filed under Section 110-A of the Act However, in view of Section 92-B (3) the amount paid under this Chapter is to be taken into consideration at the time of any award in proceedings under Section 110-A. Section 92-E gives overriding effect to the provisions of this Chapter. The Tribunal has held that having regard to the language of Section 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 Section 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: (I) a plain reading of the language of Section 92-A would show that in a summary proceeding, 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 Section 110-A, the insurer will be liable; and (2) that within the short period for the award of compensation under this Chapter, it is generally not possible for the insurance company to get the particulars of the insurance of the 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 imposes 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 it 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 extended without a specific provision in proceedings under Section 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-section (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 Section 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 Section 92-A or any other provision excludes the liability which is cast on the insurance companies by the clear language of Section 95(1)(b) read with Section 95(2). Section 95(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 Section 92-B(3) the amount paid under this Chapter is to be taken into consideration at the time of any award in proceedings under Section 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 Section 92-A will be excluded from an award after an enquiry under Section 110-A. This is because the Tribunal, while dealing with the claim under Section 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 Section 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 Building Department dated 9-8-1983 (i.e. after the insertion of Chapter VII-A) by introducing new rule 533-A. The said rule and the forms appended show that the insurance company is also to be impleaded as a party to a claim petition under Section 92-A. The State Government which is a rule making authority has also understood that in proceedings under Section 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.Beasa Devi 1985 ACJ 1 (P and H) 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 claim under Section 92-A have to be decided and, therefore, requesting for an interpretation excluding its liability, certain statutory provisions have to be noticed.

9. Chapter VIII 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 Section 94. Section 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 for 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 insurance of the vehicle are necessary for filing a claim or getting any relief. Section 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 a Police Officer. Section 103(a) makes an insurer liable to a third party on its issuing a certificate of insurance. Section 106 requires that a person driving a vehicle shall on being required by a Police Officer produce the certificate of insurance of the vehicle. Section 107 provides for rules being made by a State Government requiring the owner of a motor vehicle when applying whether for 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 use the vehicle comes into operation there will be in force the necessary policy of insurance. The motor vehicles are registered and authorised to be used 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 Section 109 of the Act, a registering authority under the Act or Officer' incharge 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. Inspite 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 in 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 pt 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 is 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 imp leaded 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 and industry and the use of vehicles, it is difficult for a 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 of 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 insured 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 a vehicle or not is within its knowledge. Taking of a bald plea of lack of particulars of insurance policy is not only unjust but diametrically opposed to the object of the legislation. As observed earlier, the motor vehicles are registered on a State-wise basis, which is again sub-divided into District- wise 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 in formation. 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 Section92-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 Section 92-A 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 of holding that the insurance company is not liable is set aside. The appeal is allowed. The insurance company is also liable in proceedings under Section 92-A in the same manner as the owners are liable for the claims under Section 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 and in the circumstances no costs.


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