Judgment:
R.M. Lodha, J.
1. Group of these seven appeals arises out of one accident and orders of payment of compensation of no-fault liability to the extent of Rs. 15,000/- to the claimants in each of the claim petition, and, therefore, these seven appeals have been taken up together and are disposed of by this common judgment
2. The facts in all the claim applications as well as applications under Section 92 A are identical. According to the case setout in the claim petitions the deceased alongwith other relatives and family of one Bhiva Gaikwad were travelling in a matador bearing No. MTQ 8416 owned by Shri Purushottam Tukaram Gadade and driven by Shri Suresh Tukaram Gadade. The said vehicle was insured with the present applicant New India Assurance Company Limited. According to the case set out in the claim petition s the owner of the said matador was having relation with the said Bhiva Gaikwad and accordingly said Bhiva had requested Shri Purushottam Gadade, owner of the matador for carrying the goods and articles from Baramati to Purbandar and back and, for the purpose of safety of these articles, the owners of these articles were travelling in the matador. On 15.12.1986 at about l a.m. near kilometre No. 6 on Nica Baramati Road, Near Village morhale Budruk when the said matador was proceeding towards Baramati after the marriage ceremony carrying various persons, the matador met with an accident. According to the claimants the matador was loaded with bags and other material in its back which was necessary for the marriage ceremony. Trie claimants have alleged that the driver of the vehicle viz, Suresh Tukaram Gadade was driving the vehicle rashly and negligently with high and excessive speed and could not negotiate the curve on the road and dashed against the tree which was on the wrong side of the vehicle. Because of the severe impact, 16 persons died on the spot as well as on the way to the hospital and other 20 to 25 persons were seriously injured. Each of the claimants claimed compensation against the owner, the driver as well as the insurer. Application for no-fault liability under Section 92A was also filed by the claimants praying therein that they were entitled to an amount of Rs. 15,000/-as no-fault liability against the opponents and accordingly prayed that appropriate directions be issued to the opponents for payment of no-fault liability.
3. The New India Assurance Company Limited, the appellant in all the appeals filed written statement and reply to the application under Section 92 A of the Motor Vehicles Act, 1939 before the Tribunal and set up the plea that the vehicle MTQ/8416 was insured with insurer as a public carrier and, therefore, it was not required to cover the risk of persons being carried in it and the Insurance Policy also does not cover the risk of persons travelling in the goods vehicle. The insurer set up the plea that the owner insurer committed breach of specific condition mentioned in policy by carrying passengers in the goods vehicle and insurer was, therefore, not liable. With regard to the claim under Section 92A of the Motor Vehicles Act, 1939, the insurer replied in para 6 of the reply that if the Court holds the insure liable to meet the liability under no-fault and ultimately if the insurer succeeds in establishing that under terms and conditions of the Insurance Policy, it was not liable to pay compensation, then insurer will be entitled to get back money paid under Section 92A from the owner of the vehicle and, therefore, prayed that direction to this effect be necessarily made.
4. The tribunal considered the application under Section 92A and ordered the owner as well as insurer to jointly and severally pay an amount of Rs. 15,000 /- to the claimants in each claim application.
5. The order passed by the tribunal making the insurer jointly and severally liable alongwith the owner for payment of Rs. 15,000/- to the claimants in fact of the claim application has given rise to the present appeals.
6. Mr. S.R. Singh, learned Counsel of the appellant submits that since the vehicle in question was hired for marriage purposes and the said vehicle was goods vehicle the passengers were not permitted to travel in the said vehicle and Insurance Policy also did not cover such liability. According to Mr. Singh, if on the face of the Insurance Policy, it could be revealed that insurer-appellant was not liable, no order against the insurer could be made even under Section 92A of the Motor Vehicles Act, 1939. In support of his contentions, Mr. Singh relies upon decision of Full Bench of Karnataka High Court United India Insurance Co. Ltd. v. Immam Aminasan Nadaf and Ors. : AIR1990Kant156 .
7. Mr. Dhakephalkar, learned Counsel appearing for claimants on the other hand supported the order passed by the tribunal and urged that at the stage of enquiry under Section 92A of the Motor Vehicles Act, 1939, the Court was not required to go into the merits of the defences of the insurer and once it was established that the vehicle in question was involved in an accident and that persons died as a result of such accident, the insurer would be required to pay the amount under Section 92A. Mr. Dhakephalkar relied upon decision of this Court in New India Assurance Co. Ltd. v. Minguel Lourenco Correia and Ors. 1986 Mh. LJ 242:1 (1987) ACC 524, and Raphik Mehbub Pakhali v. Anantkumar Pravinkumar Jajal and Anr. .
8. I have bestowed my thoughtful consideration to the contentions advanced by the learned Counsel for tire parties.
9. Section 92A was inserted in the Motor Vehicles Act, 1939 with the object that an amount of Rs. 15,000/- is made available to the claimant in case of death and Rs. 7,500/- in case of permanent disablement as expeditiously as possible before the claim is finally adjudicated under Section 110A of the Motor Vehicles Act, 1939. When this beneficial legislation was enacted by way of Section 92A, the legislature intended to provide certain immediate relief to the claimant till the main claim was adjudicated and decided, and, such compensation under Section 92A was based on the principle of no-fault. The legislature never intended that while considering an application under Section 92 for no-fault liability, the tribunal must be involved in comprehensive issue of fact and law that may be required to be decided on completion of claim application at the time of adjudication of the claim. The niceties of the defence that may be available to the owner or insurer could only be decided after the parties had led evidence, but no such elaborate enquiry is required to be made at the time of disposal of an application under Section 92A.
10. In New India Assurance Co. Ltd. v. Minguel Lourenco Correia and Ors. (supra) this Court held thus:
Section 92A of the Motor Vehicles Act is a beneficial legislation and provides for liability to pay compensation in certain case on the principle of no fault. Section 92 A(2) lays down that the amount of compensation which shall be payable Under Sub-section (1) in respect of death of any person shall be fixed sum of fifteen thousand rupees and the amount of compensation payable in respect of permanent disablement of any person shall be a fixed sum of rupees seven thousand five hundred. The scope and nature of enquiry under Section 92 A is very limited and the question as to whether or not the Insurance Company is liable to pay compensation for different reasons is to be dealt with and decided in the course of the hearing of the main application for compensation under Section 110A of the Act. The requirements under Section 92A are only whether (a) a vehicle had been involved in an accident; (b) a person died or sustained permanent disablement as a result of such accident; and (c) with whom the vehicle was insured. This is so because irrespective of any fault, the legal representatives of the dead person or the person who had suffered a permanent disablement are to be given a quick and effective temporary relief. It is open to the Insurance Company to raise any or all of 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 in the course of the proceedings for compensation under Section 110 of the Act and if ultimately the company succeeds in establishing that under the terms and conditions of the Insurance Policy, it is not liable to compensation then the Insurance Company will be entitled to get money paid under Section 92 A 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 under Section 110 of the Act so as to avoid the Insurance Company to be dragged in further litigation,
11. A Full Bench of Karnataka High Court in United India Insurance Company Ltd, v. Imman Aminasan Nadaf and Ors., (supra) while considering the scope of Sections, 92A 95(5) and 96(2) of the Motor Vehicles Act, 1939 with reference to the persons travelling in the goods vehicle and the liability of the insurer held thus:
18. After giving our careful consideration, it appears to us that whether the compensation is claimed under no-fault liability' of the owner of the vehicle under Section 92A or on ground of fault under Section 110A, as far as the insurer is concerned his liability, in view of Section 95(5), is to indemnify the insured only to the extent such liability is undertaken or covered by the policy and not beyond that. Therefore, in order to fix the liability on the Insurance Company to pay the compensation awarded under Section 92A of the Act, the Tribunal, in addition to deciding as to whether the vehicle involved in the accident was covered by an Insurance Policy, has to decide as to whether prima facie the risk was covered by the Insurance Policy. If having regard to the facts stated in the claim petition itself and the contents of an Insurance Policy, a finding could be arrived at that the policy did not cover the risk, in such a case there is no reason as to why the Insurance Company should be compelled to pay the amount solely on the ground that the policy of insurance existed and compel the Insurance Company to collect later the money paid from the owner of the vehicle which would throw the Insurance Companies to innumerable litigations. It is nowhere provided and it is not also the case of the claimant that an insurer should pay the amount awarded under Section 92A even if the liability was not covered by the policy. Further, if the intention of the legislature was to deprive the defences available under Section 96(2) of the Act at the stage of adjudication of a claim under Section 92A of the Act, the legislature would have incorporated such a condition. In fact, the only provision incorporated in Section 92-B(2) of the Act is to require the tribunal to dispose of the claim under Section 92A of the Act as expeditiously as possible. Thus when the legislature has not imposed the' liability on the insurer to pay the amount awarded under Section 92A, even in cases in which the liability is not covered by the policy and further the legislature has not deprived the defences open to Insurance Company under Section 96(2), in the course of adjudication of claims under Section 92 A, such a bar cannot be assumed by the Courts. In order to show that there would be cases where on the face of the Insurance Policy the Insurance Company cannot be held liable, we give the following illustrations:
(1) Take a case in which the owner himself was driving the vehicle without a licence and the Insurance Policy expressly states that the Insurance Company has undertaken the liability if only me vehicle was being driven, at the time of accident, by a person having a driving licence.
(2) Take a case of Insurance Policy given in respect of a two-wheeler in which no risk in respect of a pillion rider is covered, unless he happens to be an employee of the owner and on the facts stated in the petition itself, or brought to the notice of the Court, the pillion rider in respect of whom compensation is claimed was not an employee.
(3) Take a case in which the policy issued in respect of a lorry, the coverage is only in respect of the driver, a cleaner and six coolies or six passengers travelling as owners of the goods, but large number of persons far above six were travelling in such a lorry and a number of them suffered death or permanent disability.
(4) Take a case of a tractor-trailer authorised to be used only for agricultural purpose and the risk covered is only in respect of the driver and the coolies engaged for loading and unloading purposes and on the facts stated in the claim petition it is found that at the time of accident it was carrying large number of persons from one place to another place as if it were a vehicle meant for carrying passengers and in the course of such movement, accident had occurred, as a result of which large number of persons suffered death or permanent disability and the claim petitions are presented by the legal representatives of the persons who died or by those who suffered permanent disability.
12. There appears to be no inconsistency between the judgment of this Court in New India Assurance Co. Ltd. v. Minguel Lourenco Correia and Ors. case (supra), and, the Full Bench judgment of the Karnataka High Court in .United India Insurance Company Ltd. v. Immam Aminasan Nadaf and Ors. (supra). In New India Assurance Co. Ltd. v. Minguel Lourenco Correia's case (supra), this Court had not ruled that even if on the face of the policy, the insurer was not liable, still under Section 92 A it could be directed to pay compensation towards no-fault. This Court emphasised in the said case that scope and nature of enquiry under Section 92A was very limited. By the observation made in the aforesaid judgment that the question whether or not the Insurance Company is liable to pay compensation for different reasons is to be dealt with and decided in the course of the hearing of the main application for compensation under Section 110A, this Court never meant that even on the face of the Insurance Policy, without going into the matter any further, if the Insurance Company was not liable; still under Section 92 A, the order could be passed against the Insurance Company. In my view, if on the face of the policy of insurance, no liability on Insurance Company could be fastened, obviously even under Section 92A of the Motor Vehicles Act, 1939, for compensation towards no-fault, the insurer cannot be fixed with the liability. On the other hand if certain enquiry is required to be made regarding the policy of insurance in view of the facts stated in the claim petition, the tribunal cannot adjudicate the merits of the defences of the insurer under Section 92A. The enquiry under Section 92A is narrow and limited but, at the same time, it does not exclude the prima facie consideration by the tribunal whether the risk was covered on the face of the Insurance Policy or not and that prima facie opinion has to be based on the face of the Insurance Policy alone and to no other material and evidence.
13. On the face of the facts stated in the claim petition, and, the contents of Insurance Policy; in my view, a finding at this stage while deciding the application under Section 92A of the Motor Vehicles Act could not be arrived at whether the insurer was liable or not. The appellant-insurer was well aware of this position and precisely it was for this reason that while replying to the application under Section 92 A in paragraph 6 of the reply, the insurer-appellant submitted that in the event the tribunal holds it liable to meet no-fault liability and if ultimately the insurer succeeds in establishing that under the terms and conditions of the Insurance Policy it was not liable to pay compensation, then the insurer will be entitled to get the money paid under Section 92A reimbursed to by it by the owner of the vehicle. It is apparent from the aforesaid stand of the insurer that before tribunal it did not resist the claim for payment of no-fault liability but secured its right that in case ultimately the insurer was able to establish that under the terms and conditions of Insurance Policy, it was not liable to pay any compensation, it would be entitled to get that money back from the owner.
14. For all these reasons, no case for interference is made out in the order passed by the tribunal awarding no-fault liability and making the insurer liable. It is clarified that ultimately if the tribunal holds that Insurance Company was not liable, appropriate order would be passed by tribunal for reimbursement of the amount in question by owner to the insurer.
15. All these seven appeals are accordingly dismissed, with no order as to costs.