United India Insurance Co. Ltd. vs Rohidas Ladke Tari and others

G.D. Kamat J.

The appellants are an insurance company and they challenge the award dated June 12, 1990, u/s 140 of the Motor Vehicles Act, 1988, in Miscellaneous Claim Petition No.56 of 1990, which arose in Claim Petition No.80 of 1990.

The grievance in this appeal is that the appellants are not liable at all to pay any part of the award even though it is a no fault liability because, at the relevant time, they had not been the insurers of any vehicles belonging to and owned by the sixth respondent, Anthony Godinho. Having gone through the appeal proceedings and on hearing learned counsel to understand the gamut involved in this appeal a brief reference may be necessary to admitted facts. The accident happened on December 11, 1988, at Velha Goa Bazaar in which Ladu Tari received injuries and died. The present respondent Nos. 1 and 2 instituted a claim petition on October 27, 1989, and sought no-fault liability compensation u/s 140 of the Motor Vehicles Act. The appellants set out before the Tribunal that at the relevant date on which the accident took place, viz., December 11, 1988, they had never insured the motor cycle of the sixth respondent. In so far as the bus involved in the accident is concerned, it is owned by the fourth respondent and is covered by the policy issued by the fifth respondent. Despite this defence, the Tribunal directed the payment of compensation of Rs.25,000 to respondents Nos.1 and 2 and that too, without specifying as to who is liable to pay the same. It is common ground between the parties here that, as long as it is not stated to the contrary, the compensation directed shall have to be paid jointly and/or severally. Mr. Bharne, appearing for respondent Nos.3,4 and 5 i.e., driver, owner and insurers, has made a statement that, in compliance with the order, a deposit of Rs.12,500 has been made before the Tribunal.

Now, the accident had arisen when the Motor Vehicles Act, 1939, was in force and the compensation was claimed under no fault liability u/s 91A thereof. Indeed, the proceedings were instituted after the Motor Vehicles Act, 1988, was brought into force on July 1, 1989.

The compensation payable in case of death u/s 92A of the old Act was a sum of Rs.15,000 and, u/s 140 of the new Act, the same is enhanced to Rs. 25,000. The first question to ask now is as to what compensation under no fault liability, respondents Nos.1 and 2 are entitled, whether it is Rs.15,000 under the old Act or Rs.25,000 under the new Act. The next point is, as now made clear by respondent No. 6, that he is unable to support that the appellants are his insurers despite sufficient time given to him and on exonerating the appellants as to whether such liability is required to be made either wholly or partly or in what proportion by the sixth respondent. The appellants are exonerated in so far as the no fault liability proceedings are concerned. They are to continue in the main proceedings until an issue in relation to misjoinder qua that party is decided. Unfortunately, the order dated June 12, 1990, is omnibus. The matter, therefore, requires consideration in the light of the observations made above. The Tribunal is directed to decide to same at an early date. In the event the Tribunal comes to hold that the compensation is restricted to Rs.15,000 subject to the order to be made by the Tribunal qua proportion and if the Tribunal finds that there is an excess deposit by the fifth respondent, namely, the Oriental Fire and General Insurance Co. Ltd., needless to say the same shall have to be refunded to them. I, however, wish to make it clear that the appellants, insurance company, having not been the insurer are not entitled to pay any no fault liability compensation.

Mr. A. P. Cardozo, learned counsel appearing for the sixth respondent relied upon the decision in Oriental Fire and General Insurance Co.Ltd., v. Maya Devi [1989] ACJ 1940 : ]1990] 68 Com Cas 635, a Division Bench decision to say that no appeal lies against any order made u/s 140A which is akin to section 91A of the old Act.

I have gone through this report and, in my view, it is nowhere laid down that no appeal is maintainable against any award made u/s 92A of the old Act which is new section 140 of the new Act.

Section 92A followed by some more sections were inserted under Chapter VII-A under the heading LIABILITY WITHOUT FAULT IN CERTAIN CASE in the principal Act, namely, Motor Vehicles Act, 1939, by the Act 47 of 1982 and was brought into effect from October1, 1982. The principle enunciated in this section is immediate relief in terms of money benefit to the injured person or to the legal representative of the deceased victim of the accident on no fault liability. The inquiry contemplated for awarding the monetary benefit is on holding a summary inquiry and looking to papers like insurance certificate, etc., as mentioned in the rules. Needless to say it is a part of the beneficial legislation and made with the sole object of bringing immediate relief without waiting for the final award to be passed. The provision will have to be, therefore, construed favourably in favour of the victims of the accident or the dependents of the victims. Section 92A has become section 140 in the new Act of 1988 except for the charges that the sum of Rs.15,000 is substituted by a sum of Rs.25,000 in case of death and the sum of Rs.7,500 to Rs.12,000 in case of permanent disability. In reality, it is totally an independent award at the first instance contemplated by the Act and that too based on the principle of no fault liability. The final award to be made in any claim petition will indeed be based on the principle of fault liability. There is nothing in the Act which can prevent the court from taking the view that an order made u/s 140 is not an award so as to bar an appeal u/s 173 of the new Act which is akin to section 110D of the 1939 Act. Now, section 173 of the Act provides for an appeal against any award made by the Claims Tribunal except where the amount in dispute in the appeal is less than Rs.10,000. The matter however, requires to be viewed from another angle, namely, whether it is a part of a beneficial legislation. When, by any chance, this urgent relief or urgent monetary benefit is denied to a victim or dependents of the victim in the case of death, if a view is adopted that such an order or award is not appealable, the provision of urgent relief at the earliest would be rendered meaningless. When it is possible to accept that a claimant is entitled to challenge such an order of denial of the benefit u/s 140, it is not possible to hold that the same benefit is not available to the opposite party. If, therefore, a nil amount award is appealable, it must be held that the amount awarded in terms of section 140 must be equally appealable. This being the position, nothing more survives in this appeal. The appeal, is accordingly, partly allowed, otherwise fully in so far as the appellants are concerned, in the light of the observations made. No costs.