National Insurance Co. vs Surjit Singh and Others

Dr. A.S. Anand, C.J.—This order will dispose of 20 civil miscellaneous first appeals given in the title of the order.

The back drop of the facts which have given rise to these appeals is that on May 13, 1987, at about 3.30 p.m. vehicle No. JKQ-4077 was

involved in an accident resulting in the death of 15 passengers and injuries to a number of other passengers. The heirs of the deceased as well as

the injured preferred different claim petitions before the Motor Accidents Claims Tribunal, Jammu. The claimants also filed petitions u/s 92A of the

Motor Vehicles Act (hereinafter called ""the Act""), claiming compensation on the basis of ""no fault liability"". The petitions were resisted and the

insurance company took the stand that it was not liable as the conditions of the policy stood violated and, therefore, it could not be fastened with

any liability u/s 92A of the Act. The Tribunal, on the basis of the material on the record, found that the offending vehicle No. JKQ-4077 stood

insured with the insurance company. It also opined that the objection raised by the insurance company could be considered while dealing with the

petition on merits. The Tribunal granted the applications u/s 92A of the Act and awarded a fixed sum of Rs. 15,000 to the heirs of the deceased

for the death of the passengers and Rs. 7,500 as compensation to each of the injured persons who suffered permanent disability. The insurance

company was to pay the entire compensation within one month from the date of the order against which it has preferred these appeals.

On behalf of the claimants-respondents, their learned counsel appearing as caveators submitted that an order u/s 92A is not appealable u/s

110A of the Act. Mr. Thakur, learned counsel for the appellant, has on the other hand, submitted that the order made u/s 92A is in the nature of an

interim award"" and that an appeal against such an award is maintainable u/s 110D of the Act. He cited judgments of various High Courts to

support his submission. On merits, Mr. Thakur submitted that it was obligatory for the Tribunal to decide the objections raised on behalf of the

insurance company regarding violation of the terms and conditions of the policy of insurance, by reason of the transfer of the vehicle without

permission of the insurance company and without holding any enquiry into the correctness or otherwise of these objections, the Tribunal could not

direct the appellant to make payment. According to Mr. Thakur, the Tribunal was not justified in postponing this enquiry and at the same time

fastening the liability on the insurance company u/s 92A of the Act.

In so far as the objections with regard to the maintainability of the appeals are concerned, the controversy need not detain me in this case,

because, for what follows, I find that on merits it is not a fit case which calls for interference by this court.

That an accident took place on May 13, 1987, at about 3.30 p.m. is not disputed. It is also not disputed that the vehicle involved in the accident

was JKQ-4077. The material on the record also prima facie establishes that the said vehicle stood insured with the appellant insurance company.

The factum of the accident was not disputed by the owner of the vehicle either. The only question, therefore, which requires consideration is

whether the Tribunal was justified in postponing the consideration of the objections raised by the insurance company in terms of Section 96(2) of

the Act for being dealt with while making the final award u/s 110 of the Act. If the answer is in the affirmative, then no fault can be found with the

interim award, otherwise the interim award would require to be set aside. According to Mr. Thakur, the objections raised by the insurance

company have to be dealt with not only while making the final award u/s 110, but also while granting any interim relief u/s 92A of the Act, where

such relief is claimed.

The language of Section 92A of the Act unmistakably shows that the intention of the Legislature was to make the liability under it indefeasible

and total. The liability being on the basis of no fault, neither any wrongful act nor any negligence or default of the owner or the owners of the vehicle

or vehicles is required to be pleaded, much less proved while dealing with the petition u/s 92A. The liability u/s 92A is to be fastened on the

findings by the Tribunal that death or permanent disablement took place in which one or more motor vehicles were involved. The insurance

company can be saddled with the liability u/s 92A as an insurer, if either the insurance company admits the fact that the vehicle in question was

insured with it or the fact is prima facie established from the material on record. No more enquiry at that stage is required to be made by the

Tribunal while granting relief u/s 92A of the Act. If a detailed enquiry is to be held by the Tribunal even at the stage, it would frustrate the very

object for which Section 92A was enacted. The court has a duty to promote the intention of the Legislature and not to frustrate it particularly while

considering a beneficial legislation.

A plea similar to the one raised by Mr. Thakur was raised before a Division Bench of the Punjab & Haryana High Court in Oriental Fire and

General Insurance Co. Ltd. v. Beasa Devi [1986] 59 Comp Cas 643. The learned judges of the Division Bench dealt with the plea thus (p. 652 of

59 Comp Cas):

Now, the question that falls for consideration is as to at what stage the Tribunal is to inquire into the objections available to the insurance company

u/s 96(2) of the Act. Should such objections be treated as preliminary issue and be decided by the Tribunal in the first instance which, in the nature

of things, would result in delay in regard to the payment of amount u/s 92A to the claimants, which may partly defeat the very purpose underlying

the enactment of the said provision, i.e., of providing immediate succour to the persons who had suffered disabling injury in an accident or the heirs

of the persons who had died as a result of the accident. We are of the view that the provision of Section 92A is a piece of beneficial and

ameliorative legislation providing for an immediate aid to the hapless and helpless victims of motor accidents. The moment it is either admitted by

the owner of the vehicle that his vehicle was involved in the accident or from the evidence adduced on the record, the Tribunal positively holds that

the vehicle oj 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 vehicle 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 u/s 92A 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 either by the insurance company or by the

owner of the offending vehicle.

Again, a Division Bench of the Karnataka High Court in Mohammad Iqbal v. Bhimaiah [1986] Comp Cas 1094 while dealing with the scope of

enquiry u/s 92A of the Act, opined (p. 1100 of 60 Comp Cas):

The scope of enquiry, is no doubt, as contemplated in Section 92A of the Act, which is reproduced above. It states :

' Where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle.'

It would further be necessary to prove that death or permanent disablement has resulted from the accident arising out of the use of the motor

vehicle unless it is admitted or not denied. It can be proved by getting the wound certificate or post mortem report marked by consent. If it is

desired that the liability should be saddled on the insurance company, it is further necessary to produce evidence to show that the vehicle was

insured at the relevant time unless it is not denied by the insurer.

The Bombay High Court also had occasion to consider the scope of an enquiry u/s 92A of the Act. In New India Assurance Company Ltd. v.

Minguel Correia [1987] ACC 524 (Bom), the court opined that the scope of the enquiry under that Section was limited to ascertaining whether the

death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle. The court went on to

observe (at p. 532):

This does not mean, however, that it is not open to the insurance company to raise any or all the defences which are available to it under the Act,

particularly that, under the terms and conditions of the insurance policy, the insurance company is not liable to pay any compensation. But this

aspect of the case is to be dealt with i"" the course of the proceedings for compensation u/s 110 of the Act. Thus, if ultimately the company

succeeds in establishing that under the terms and conditions of the insurance policy it is not liable to pay compensation, then the insurance company

will be entitled to get the money paid u/s 92A of the Act repaid to it by the owner of the vehicle. A direction to this effect has necessarily to be

made by the Tribunal itself while disposing of the application u/s 110 of the Act, so as to avoid the insurance company to be dragged into further

litigation.

I am in respectful agreement with the views expressed by the High Courts of Punjab & Haryana, Bombay and Karnataka and for what has

been said above, I answer the question in the affirmative.

In the instant case, the findings, as recorded by the Tribunal and noticed elsewhere in this order, are specific and on the basis of those findings,

the Tribunal was wholly justified in allowing the petition u/s 92A of the Act and postponing investigation into the objections raised by the insurance

company to be dealt with during the course of the proceedings for compensation on merits u/s 110 of the Act. The appeals do not, therefore, merit

any further consideration.

In view of what has been said above, these appeals fail and are hereby dismissed in limine. It is, however, clarified with a view to dispel the

apprehension expressed by Mr. Thakur that the interim award made u/s 92A of the Act would not have the effect of holding for good the

insurance company liable to pay compensation for the parent claim in case the insurance company is able to successfully prove its objections and

absolve itself of its responsibility to indemnify the owner of the vehicle. In that event, the Tribunal, u/s 96(4) of the Act, will be obliged to direct the

owner to pay to the insurance company the amount which it has paid to the claimants u/s 92A of the Act, because, on the plain language of Section

92A and particularly of Sub-sections (1). (3) and (4), the liability of the owner is indefeasible and total and the insurance company would not be

required to enter into any prolonged litigation with the owner to recover the amount of compensation paid by it u/s 92A of the Act.