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Oriental Insurance Co. Ltd. Vs. Sitla Parshad and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 978 of 1984
Judge
Reported inAIR1986P& H116
ActsMotor Vehicles Act - Sections 92A
AppellantOriental Insurance Co. Ltd.
RespondentSitla Parshad and ors.
Cases ReferredOriental Fire & Genl. Insurance Co. Ltd. v. Bachan Singh
Excerpt:
.....shared responsibility. it is a payment which the owner of the vehicle has to make and the insurer to make for him on the dictum of beasa devi's case (air 1985 punj & har 96) (supra). that case clearly safe guards that in the event of the tribunal concluding that neither the owner on the principle of fault liability nor the insurance company was liable to pay compensation, as also in a situation where the insurance company can successfully avoid its responsibility to indemnify the owner of the offending vehicle totally, then the insurance company is absolved of the liability and it can certainly ask an award from the tribunal by virtue of the provisions of sub-sec (4) of s......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.'a plain reading of the section makes it clear that it creates a fixed liability of a quantified sum even when no fault is found. no wrongful act, neglect or default of any person need be proved......
Judgment:

1. This first appeal against order raises an interesting question of law.

2. As a result of a motor accident Sitla Parshad, the respondent herein, receiver an injury, so as to cause disablement of a limb. He filed a claim application under the provisions of the Motor Vehicles Act before of Tribunal appointed under the Act. During the course thereof, the Tribunal passed an order on August 30, 30, 1984, under S. 92A of the Motor Vehicles Act, awarding interim compensation of Rs. 7,500/- to the respondent, directing the Insurance Company, the appellant, to make payment thereof. It is to challenge that order that this appeal has been filed.

3. The primary contention of Mr. Gandhi, learned counsel for the Insurance-company-appellant is that in the meantime the parent claim application has also been decided by the Tribunal, though incidentally against the appellant, and when an appeal has been preferred by it in this Court, it would be fair that the hearing of this appeal is deferred till that appeal is decided. The prayer is pregnant with the fear that if the present order gets confirmed, it might have the effect of holding for good the Insurance Company as liable to pay damages. But for the apprehension expressed, Mr. Gandhi has been unable to urge anything as to why S. 92A of the Act is not attracted which fixes liability on the owner of the vehicle without fault in certain cases. And undisputedly, present is a case of disablement attracting that provision. He cannot be allowed to say that the Insurance company is not to indemnify, even though in an interim way, the owner for such a liability in view of a decision of this Court in Oriental Fire and General Ins. Co. Ltd. v. Beasa Devi 1985 Acc CJ 1: (AIR 1985 Punj & Har 96). The Bench has observed in that regard as follows (at P. 101):--

'We are of the view that provision of S. 92A is a piece of beneficial and ameliorative legislation providing providing for an immediate aid to the helpless and helpless victims of the motor accidents. The moment it is either admitted by the owner of the vehicle that his vehicles was involved in the accident or from the evidence adduced on the record, the Tribunal positively holds that vehicle of the owner in question was involved in that accident, if he denied that fact and then if the Tribunal comes to a further prima facie conclusion that the vehicles was insured, then the Tribunal without inquiring into correctness of other objections that may be raised by the insurance company would be entitled to make the award under S. 92 A and require the insurance company to pay the given amount to the claimants forthwith and thereafter investigate and inquire into the correctness or otherwise of the other objections that are raised wither by the insurance company or by the owner of the offending vehicle.

10. In the event of the Tribunal coming to the conclusion for valid reasons that the owner of the vehicle was not liable to pay any compensation on the principle of fault liability, then obviously no compensation is to be awarded on that score to the claimants under S. 110-B. Similarly, in the event of the Tribunal holding that the insurance company had proved such objections as under law avoided its responsibility to indemnify the owner of the offending vehicle totally, then the Tribunal in the final award by virtue of provisions of sub-sec (4) of S. 96 would direct the owner of the offending vehicle to pay to the insurance company the amount which the insurance company had paid to the claimants in pursuance of the ward made under S. 92-A of the Act'.

At this juncture, it would be worthwhile to reproduce here S. 92-A:--

'92-A. Liability to pay compensation in certain cases on the principle of no 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-sec (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.'

A plain reading of the section makes it clear that it creates a fixed liability of a quantified sum even when no fault is found. No wrongful act, neglect or default of any person need be proved. No claim cam 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, or the quantum reduced on shared responsibility. It is a payment which the owner of the vehicle has to make and the insurer to make for him on the dictum of Beasa Devi's case (AIR 1985 Punj & Har 96) (supra). That case clearly safe guards that in the event of the Tribunal concluding that neither the owner on the principle of fault liability nor the Insurance Company was liable to pay compensation, as also in a situation where the Insurance Company can successfully avoid its responsibility to indemnify the owner of the offending vehicle totally, then the Insurance Company is absolved of the liability and it can certainly ask an award from the Tribunal by virtue of the provisions of Sub-sec (4) of S. 96, directing the owner of the offending vehicle to pay to the Insurance Company the amount which it had paid to the claimants in pursuance of the award made under Section. 92 of the Motor Vehicles Act.

4. Viewing it from another angle, the award under S. 92-A of the Act as it seems to me is final betwixt the owner the owner of the offending vehicle and the claimants. But the award assumes the quality of being interim in nature in so far as it relates to the eventual settlement of liability between the insured and the insurance company. On the affirmance of the order now sought to be appealed against the finality would attach only to the fact that the order is binding between the claimant and the owner. The Insurance Company is not and can never be held to be bound by the award under S. 92-A unless its rights and obligations towards the insured are settled. Thus, the controversy in the appeal filed by the Insurance Company against the parent award is not a factor which comes to obstruct disposal of this appeal, or even by affirming the impugned order. Even the dictum of the Full Bench in Oriental Fire & Genl. Insurance Co. Ltd. v. Bachan Singh 1872 Acc CJ 211: (AIR 1982 Punj & Har 267), is to the effect that the liability of the insurer is conditional on a judgment or award against the insured based on principle of indemnity and it was never intended by the legislature the insured when the insured had been wholly exonerated of any liability. That dictum bears an innate exception to it in the form of S. 92A, in the sense that in an interim way the Insurance Company has to indemnify insurance but subject to the owner or the insured reimbursing it in the event the Insurance company gets absolved of the liability. Accordingly it is so held.

5. No other point arises in this appeal.

6. In the view afore expressed, this appeal fails and is hereby dismissed. No costs.

7. Appeal dismissed.


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