NATIONAL INSURANCE CO LTD Vs. SURJIT SINGH

JUDGEMENT

(1.) THIS order will dispose of 20 Civil Misc. 1st Appeals, given in the title of the order.

(2.) THE Back drop of the facts which have given rise to these appeals is that : on 13 -5 -1987 at about 3. 30 P. M. vehicle No ; 4077 JKO was involved in an accident resulting in the death of 15 and injuries to a number of other passengers. The heirs of the deceased as well as the injured preferred different claim petitions before Motor Accidents Claims Tribunal Jammu. The claimants also filed petitions U/s 9 -A of the Motor Vehicle Act (hereinafter called the Act) claiming compensation on the basis of no fault liability. The petitions were resisted & 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 under Section 92 -A of the Act. The Tribunal on the basis of the material on the record found that the offending vehicle 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 under Sec. 92 -A of the Act and awarded a fixed sum of Rs I5000/ -to the heirs of the deceased for the death of the passengers and Rs. 7500/ - as compensation to each of the injured person 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.

(3.) ON behalf of the claimants -respondents, their learned counsel appearing as Caveators submitted that an order under section 92 -A is not appeal able under section 110 -D of the Act. Mr. Thakur learned counsel for the appellant has on the other hand, submitted that the order made under section 29 -A is in the nature of an interim award & that an appeal against such an award is maintainable under section 110 -D of the Act. He cited judgments of various High Court 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 he violation of the terms & conditions of the policy of insurance by reason on 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 to postpone this enquiry and at the same time fasten the liabilitey on the Insurance Company under section 2 -A 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. 5 That an accident took place on 13 -5 -1987at about3 -30 P M. is not disputed. It also is not disputed that the vehicle involved in the accident was JKD -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 to postpone 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 under section 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 under section 119, but also while granting any interim relief under section 92 -A of the Act, where such relief is claimed. 6 The language of section 92 -A of the Act unmistakably shows the intention of the legislature was to make the liability under it indefeasible & 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 under section 92 -A. The liability u/s 92 -A 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 under section 92 -A 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 the record. No more enquiry at that stage is required to be made by the Tribunal while granting relief under section 92 -A 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 92 - A was enacted. The court has a duty to promote the intention of the legislature & not to frustrate it particularly while considering a beneficial legislation. 7 A plea similar to the one raised by Mr. Thakur was raised before a Division Bench of Punjab & Haryana a High Court in Oriental Fire & General Ins. Co. Ltd. Vs. Beasa Devi & Others, AIR 1085 Punjab & Haryana 95 (1985 A. C. J I) The learned Judges of the Division Bench dealt with the plea thus : - "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 under section 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 under section 92 -A 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 provision of section 92 -A is a piece of beneficial & ameliorative legislation providing for an imediate aid to the hapless & helpless victims of the 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 vehicle of the owner in question was involved in that accident, if he denied that fact & 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 under section 2 - A & require the insurance company to pay the given amount to the claimants forthwith and thereafter investigate and inquire objections that are raised either by the Insurance Company or by the owner of the offending vehicle." (Emphasis sup -plied) Again, a Division Bench of the Karnatak High Court in 1985 ACJ 546, Mohammad Iqbal Vs Bbimaiah and others, while dealing with the scope of enquiry under sec. 92 -A of the Act opined: - "The scope of enquiry, is no doubt, as contemplated in section 92 -A 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 would certificate or P. M. 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 an occasion to consider the scope of an enquiry under section 92 -A of the Act. In the New India Assurance Company Ltd Versus Minguel Carriar & others, 1987 (I) ACC 5 4 the court opined that the scope of the enquiry under that section was limited to ascertain 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: - "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 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 in the course of the proceeding for compensation under section 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 money paid under section 92 -A of the Act repaid to it by owner of the vehicle. A direction to this effect has necessarily to be made by the Tribunal itself while disposing of the applications under section 110 of the Act. so as to avoid the insurance Company to be dragged in further litigation." (Emphasis supplied) I am in respectful agreement with the views expressed by the High Courts of Punjab & Haryana, Bombay & Karnataka and for what has been said above, answer the question in the affirmative. 9 In the instant case, the finding, as recorded by the Tribunal and noticed else where in this order, are specific and on the basis of those findings, the Tribunal was wholly justified in allowing the petition under section 92 -A 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 under section 110 of the Act. The appeals do not therefore, merit any further consideration. 10 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 under section 92 -A 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 under section 96 (4) of the Act will be obliged to direct this owner to pay to the Insurance Company the amount which it has paid to the claimants under section 92 -A of the Act, because on the plain language of section 92 -A & particularly of sub -sec. (I), (3) and (4) liability of the owner is indefeasible and Insurance Company would not be required to enter into any prolonged litigation with the owner to recover the amount of compensation paid by it under section 92 -A of the Act.