ORIENTAL INSURANCE CO LTD Vs. SOM RAJ

JUDGEMENT

(1.) A motor vehicle accident resulted in filing of a claim before the Claims Tribunal. The foundation of the claim did not rest only on no fault liability. Before the Tribunal, the appellant before us, contended that it has no liability. The grounds in support of such contention had also been mentioned. The Tribunal, on consideration of the pleadings filed by the appellant, found that it had admitted insurance of the offending vehicle with it on the date of the accident. It also noted that various grounds had been taken by the appellant in defence and those were of legal nature. The Tribunal, thereupon, proceeded to decide the claim on the basis of no fault liability as a claim for interim compensation and awarded the same with the observation that the defences raised by the appellant shall be looked into and dec6ided when the claim petition would be finally decided upon considering the evidence to be led by both sides. Challenging the award of the tribunal, termed as interim award, the appellant filed an appeal. In the appeal, it was highlighted, as was contended before the Tribunal, that the driver of the vehicle, at the time of the accident, was not holding a valid driving license and, accordingly, the appellant had no liability on account of the claim. A learned Single judge of this Court by the judgment and order under appeal, dismissed the appeal, holding that whether the driver had a valid driving license or not, is a question of fact which can be determined only during the trial of the case and that, at the time of considering the claim on the basis of no fault liability, the Tribunal was not required to go in for a roving enquiry. The learned Judge further held that when it was not in dispute that the vehicle stood insured with the appellant at the time of the accident, the tribunal committed no error of law or fact in fixing the liability to pay the interim compensation upon the appellant-insurer. Being aggrieved by the said judgment and order, the present appeal has been preferred.

(2.) SECTION 140 of the Motor Vehicle Act, 1988 puts no fault liability on the owner of the vehicle. It provides that the amount of money mentioned in the said section is payable without pleading and establishing that the death or permanent disablement was due to any wrongful act, neglect or default of the owner or owners of the vehicle. It further says that the death or permanent disablement resulting from an accident arising out of use of a motor vehicle or motor vehicles would entail such payment and such claim, in terms of the provisions contained in the said section, is not defeatable by showing that there was a wrongful act, neglect or default of the person who suffered death or permanent disablement by reason of the motor vehicle accident. The section further makes it clear that the amount of compensation mentioned is the minimum compensation payable, although more than that may be payable under any other law for the time being in force. Section 141 of the Act makes it further clear that a claim for compensation under section 140, i. e. , on the basis of no-fault, is in addition to claim for compensation on the principle of fault; but, at the same time, specifies that a claim on no fault basis shall be disposed of as expeditiously as possible and, where such claim and additional claim has been made, the claim for compensation on the basis of no fault shall be disposed of in the first place.

(3.) THE claim on the basis of no fault as also on the principle of fault can be lodged against the owner of the vehicle. The owner of the vehicle can pass off such liability to the insurer by taking out an insurance cover with third party risks, obtaining of which is mandatory. Sub-section (1) of section 149 of the Act directs the insurer, notwithstanding he may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, subject to the provisions of section 149 of the Act, to pay, to the person entitled to the benefit of the decree or award passed against the owner, the sum not exceeding the sum assured payable under the policy as if the insurer was the judgment debtor in respect of the liability. Subsection (2) of section 149 of the Act provides that the insurer would not incur any such liability when, inter alia, there is a breach of a specified condition of the policy that the driver was not duly licensed. A person who is entitled to compensation on the basis of no fault has a choice to restrict his claim to the extent permissible under section 140 of the Act or he may, in addition thereto, claim compensation on the principle of fault. The claim, if it is restricted only on the basis of no fault and if the owner satisfies the claim, the matter is over. If the owner tells the claimant that the vehicle was insured and the insurance company honours the claim, then again the matter stands concluded. But, if neither the owner satisfies the claim, nor the insurance company, then the claimant has to enforce the claim through some forum.