NEW INDIA ASSURANCE COMPANY LIMITED Vs. DINANATH AGRAWALLA

JUDGEMENT

(1.) As there was divergence in view, the matter has been referred to larger Bench and following questions have been referred for opinion:-(a) Whether the Tribunal has power to allow interest on the compensation awarded under Section 92-A of the Act in view of amendment to Section 110 CC of the Amending Act 47 of 1982? and (b) Whether the liability under Section 92-A can be saddled on the insurer even in a case where that liability other than a statutory liability is not covered by the policy of insurance?

(2.) The matter was under consideration in an appeal under Letters Patent arising out of an appeal against order of a learned single Judge dealing with scope and ambit of Section 92-A of the Motor Vehicles Act, 1939 (in short, the 'Act'). Factual aspects need to be noted in brief. Facts as noticed by the learned single Judge and the Division Bench are as follows:-On 16-9-1983, jeep bearing registration number OSS 6481 was proceeding from Bargarh to Paikmal. After crossing Padampur, at about 9 a.m. the vehicle dashed against a bridge as a result of which, it fell into a Nala underneath. Deceased Jagdish Prasad and witnesses (PWs.5 and 11) were occupants of the vehicle at that time. Fatal injuries sustained by Jadgish Prasad in the accident is cause of action for his legal representatives to file an application before the Second Motor Accidents Claims Tribunal (Northern Division), Sambalpur (in short, 'Tribunal') under Section 110-A of the Act claiming Rs. 3,42,000/- as compensation against Ghanashyam Das (PW-6) as owner and New India Assurance Company Ltd. (the present appellant) as the insurery.Case of Ghanshyam is that while the vehicle was in custody of PW-9 in the garage for repair being entrusted by him, deceased forcibly took away the vehicle for the garage. Since it was taken against his consent by committing an offence, he is not liable for the claim. Case of insurer is that Ghanashyam had agreement with the deceased for transer of the vehicle and thus, deceased was the owner. Since ownership was transferred, it is not liable to indemnify Ghanashyam any further.

(3.) On the facts one of the Hon'ble Judges held as follows:-(a) That even without an application in that regard, the Tribunal could grant compensation under Section 92-A of the Motor Vehicles Act, 1939 on the basis of the no-fault liability;(b) That the Tribunal could not award interest on compensation awarded under Section 92-A.(c) That even when the owner was not liable to pay compensation under Section 110-A of the Act on the principle of vicarious liability, the insurer could be made liable to pay compensation in terms of Section 92-A of the Act.Though the other Hon'ble Judge agreed to the first conclusion, with regard to the second and third conclusions, he held that in view of Section 110-CC. interest could be awarded, and the liability under Section 92-A can be attracted only when that particular liability is covered by the insurance policy, except under statutory liability covered under Section 95 of the Act, liability under Section 92-A can be saddled on the insurer only when that particular liability even in a case where that liability is other than a statutory liability, is covered by it and liability is covered by a policy.