ORDER
1. Under Section 7 of the Karnataka High Court Act of 1961, a Division Bench of this Court has referred the following question of law for the opinion of the Full Bench.
'Whether an award directing payment of compensation under Section 92-A of the Motor Vehicles Act, 1939, be made against the insurer without an enquiry and a finding that the risk giving rise to the claim is covered by the policy of insurance?'
2. Facts of the case leading to the reference are as follows:-- On the 21st November 1986, a large number of persons were travelling in a truck bearing Registration No. MYJ 4535. They were going to a village in Maharashtra to earn their livelihood. When the truck came near the village Sattigere on Yadwad-Yargatti road at about 3.30 a.m. it turned turtle on the off side of the road, as a result of the accident a large number of persons died and also injured. The persons claiming to be the legal representatives of the deceased persons filed as many as 24 claim petitions under Section 110-A of the Motor Vehicles Act ('the Act' for short). In the claim petitions they alleged that the accident occurred due to rash and negligent driving of the vehicle. Different amounts of compensation were claimed in each of the petitions. To the claim petitions, the driver, the owner of the vehicle were impleaded as respondents 1 and 2. The United India Insurance Company, Bijapur Branch was impleaded as respondent 3 as the insurer of the vehicle.
3. In the same proceeding the petitioners also made claim under Section 92-A of theAct, which was incorporated into the Act and which for the first time created 'no fault liability' in case of death or permanent disablement caused by a motor accident to the extent indicated therein. This claim, having regard to the object and purpose of the provision, was taken up in the first instance for consideration by the Tribunal. The Tribunal recorded a finding that the vehicle involved in the accident was owned by the 2nd respondent. Accordingly, the Tribunal held the 2nd respondent was liable to pay the compensation at the rate of Rs. 15,000/- to each of the claimants in terms of Section 92-A of the Act.
4. As far as the Insurance Company is concerned, it took the stand that the vehicle in question was a lorry, it was not authorised to carry passengers, and in any event the insurance policy issued by the 3rd respondent did not cover the risk relating to the death or injury to passengers carried in the lorry. Therefore, the liability under Section 92-A of the Act could not be fastened to the Insurance Company.
5. The Tribunal, however, held that all that was necessary to fasten the liability on the Insurance Company in respect of a claim under Section 92-A of the Act was, whether the vehicle involved in the accident was covered by an insurance policy and once it was found that there existed an insurance policy in respect of the vehicle on the date of the accident, no other question is required to be considered and the Insurance Company is bound to pay the amount specified in Section 92-A of the Act. Accordingly, the Tribunal directed that the 3rd respondent -- Insurance Company -- was liable to deposit a sum of Rs. 15,000/- in each of the claim petitions. Aggrieved by the said order, the Insurance Company has presented this appeal.
6. Before the Division Bench it was contended for the Insurance Company that when on the face of the Insurance Policy, the risk was not covered, the liability to pay compensation under S. 92-A of the Act, could not be fastened on the Insurance Company, just because an insurance policy was in force in respect of the vehicle concerned, on the dateof the accident. Reliance was placed on a Division Bench decision of this Court in Mohammad Iqbal v. Bhimaiah, : AIR1985Kant171 . The relevant paragraph was paragraph 20. It reads:--
'20. The scope of enquiry, is no doubt, as contemplated in Section 92A 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 wound 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.'
7. The submission of the learned counsel for the appellant was that according to the above decision, before holding the Insurance Company liable, the Tribunal had to record a finding on two issues, viz.,
(1) Whether the death or permanent disablement of any person had resulted from an accident arising out of the use of a motor vehicle concerned?
(2) Whether the vehicle was insured at the relevant time, unless it is not denied by the insurer?
The contention of the learned Counsel for the Insurance Company was that the finding on the question as to whether the vehicle was insured at the relevant time would necessarily mean whether the particular risk was covered by the insurance policy.
8. The learned Counsel for the claimants, however, had relied on an unreported decision of a Division Bench in M.F.A. No. 1521/87, which read:--
'This appeal, by the insurer is against the award under Section 92-A of the M.V. Actmade at the interlocutory stage. The contention of the learned Counsel for the appellant-insurer is that the deceased-person was travelling in a goods-vehicle either as a gratuitous or a fare paying passenger and in either event the insurer is not liable except upon a special cover.
The question whether the insurer, in the special circumstances of the case, would not be liable is a matter to be decided on evidence at the trial. If, ultimately, it transpires that the liability to indemnify on the part of the insurer does not arise, the Tribunal will issue appropriate directions at the stage of final disposal to reimburse appellant the amount paid under Section 92-A, from the owner-insured.
With these observations, the appeal is rejected.'
In view of the said Judgment, the claimant contended that the only question that arises while deciding a claim under Section 92-A of the Act in so far as it relates to the Insurance Company was concerned, was to find out whether the vehicle in question was covered by an insurance policy and all other questions have to be decided at the trial and if ultimately it were to be found that the risk was not covered by the policy, a direction should be issued to the owner of the vehicle to reimburse the Insurance Company, the amount paid under an order made under Section 92-A of the Act. The learned Counsel for the Insurance Company, however, contended that it is not permissible to fasten the liability on the Insurance Company, unless the Court also recorded a finding that the risk was covered by the Insurance Policy.
9. The Division Bench having found force in the contention of the Insurance Company, has referred the question set out first for the opinion of the Full Bench.
10. Before us, the contentions urged by the learned Counsel were similar to those addressed before the Division Bench. Reliance was also placed by the claimant on the decision of Gauhati High Court in Babban Tiwari v. Usha Ranjan, 1987 Ace CJ 863. In the said decision the view taken is similar tothe one taken by this Court in M.F.A. No. 1521 of 1987. The learned Counsel for the Insurance Company relied on the Judgment of the Punjab High Court in Oriental Fire and General Insurance Company Ltd. v. Beasa Devi, . Relevant portion of the said Judgment reads :
'In view of the above, we hold that the insurer is liable to satisfy the compensation claim arising from the accident with the insured vehicle to the extent of the amount that the policy of the insurance in terms of Section 95 happens to cover and therefore, to the extent of the policy cover the insurer without inquiring as to whether the amount awarded is under Section 92-A or otherwise shall be liable to pay the amount awarded to the person named in the award or awards.'
Learned Counsel submitted that the clear purport of the above paragraph was that liability could be fixed on the insurance company only if the policy were to cover the liability. Paragraphs 11 and 12 of the same judgment would show that the Punjab High Court, while on the one hand held that an inquiry should be held to find out whether prima facie an insurance policy existed, on the other held that having regard to the object of Section 92-A to provide for the award of compensation to the victims of the accident in the two categories of cases, i.e., death and permanent disablement, an elaborate inquiry to consider the various defence open to the Insurance Company as specified in Section 96(2), would defeat the intention and purpose of the provision and therefore compensation under Section 92-A should be awarded without undertaking any such elaborate inquiry, after it is established prima facie that on the date of the accident an insurance policy existed.
11. In none of those cases, the precise question namely, that if in a given case, taking the facts stated in the petition and going through the contents of an insurance policy, it could be said at once that the risk on which the claim is based is not covered by the policy, still the Insurance Company should be foisted with the liability, did not arise for consideration and has not been considered. Therefore,bearing in mind the human aspect and the object and purpose in enacting Section 92-A, and the legislative mandate that a claim under that provision should be decided as expeditiously as possible, we proceed to find out the answer to the question.
12. In this behalf, we shall in the first instance refer to the Scheme of Insurance of motor vehicles against third patty risks as it existed prior to the amending Act of 1982 by which Chapter VII-A was introduced into the Act and also the salient features of the provisions incorporated by the amendment.
(I) The provisions relating to compulsory insurance of motor vehicles prior to the amendment, which were based upon the liability of the owner of the vehicle arising out of fault of the owner or his employee, which remain intact after the amendments are that the Act makes it mandatory for every person using a motor vehicle in a public place except as a passenger to take a policy of insurance complying with the requirements of the various provisions in Chapter VIII of the Act. Section 95 of the Act prescribes the requirements of policies and limits of liability. Inter alia, it provides that the insurer issuing the policy must insure the person or classes of persons specified in the policy to the extent specified in Clauses (a) to (d) of sub-section (2) of the said provision. Sub-section (5) of Section 95 limits the liability of insurer to the extent it is covered by the policy. Section 96 of the Act imposes a duty on insurers to satisfy the judgments against persons insured in respect of third party risks, and sub-section (2) thereof specifies the defences available to an insurer for avoiding the liability. Section 103 of the Act prescribes the effect of Certificate of Insurance. Section 110 of the Act provides for the constitution of the Claims Tribunal and Section 110-A of the Act prescribes the procedure for making an application for compensation before the Tribunal. Section 110-B of the Act provides for the making of the award by the Claims Tribunal. According to the above provision, if an application under Section 110-A of the Act is made before the Claims Tribunal constituted under Section 110 of the Act, enquiry has tobe held by the Tribunal and an award has to be made in favour of the claimant, if he were to make out a case for the award of compensation, Section 110-C of the Act prescribes the procedure and powers of Claims Tribunal.
Under the Scheme of the above provisions compensation could be claimed by an insured person or by the legal representatives in the case of a person dying as a result of the accident, on the ground that the accident was as a result of rash and negligent driving of the vehicle by its driver. On proving that it was so only, the claimant would become entitled to the compensation. As regards the Insurance Company, the liability to pay compensation would arise only if the Insurance Company had issued a policy which was in force on the date of accident and if under the policy the particular risk was covered. The grounds on which the Insurance Company could avoid liability are set out in sub-section (2) of Section 96 of the Act. It reads:--
'(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment unless, before or after the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court or the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :
(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than 14 days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or
(b) that there has been a breach of a specified condition of the policy being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance of vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached, where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(c) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.'
Thus, it may be seen the foundation for a claim for awarding compensation under Section 110-B of the Act was the fault of the owner of the vehicle or his employee -- driver of the vehicle and if on evidence the Tribunal in a given case were to come to the conclusion the accident did not occur as a result of rash and negligent driving of the vehicle by the driver, neither the owner -- the insured person -- was liable to pay compensation nor the Insurance Company.
(II) By the amending Act of 1982, Chapter VII-A consisting of Sections 92A, 92B, 92C, 92D and 92E of the Act were introduced into the Act. These provisions came into force with effect from 1-10-1982. It is well known that traditionally action in tort is founded upon wrong by the opposite party. The provisions of the Act providing for compensation as they stood prior to amendment were also based upon that principle. But in the provisions introduced into the Act by amendingAct of 1982, a new doctrine called 'No Fault Liability' was introduced. Such a step was taken by the Parliament, having due regard to the enormous amount of increase in movement of motor vehicles on roads and the attendant risk to the passengers as also to the pedestrians and those moving in other vehicles, as a result of accidents. The Parliament considered that a separate and independent liability to pay compensation to the victims of the accident in two categories of cases, namely, death and permanent disablement should be fixed and it was with this object, Sections 92A and 92E were introduced and certain consequential amendments were also made to the pre-existing sections. The relevant provisions of Act as also the new Sections introduced in 1982 together with consequential amendments effected to the preexisting provisions, to the extent necessary for considering the question arising for consideration in this case are these :
'92-A. Liability to pay compensation in certain cases on the principle of no fault--(1) Where the death ot permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifteen thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of seven thousand five hundred rupees.
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under subsection (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
92-B. Provisions as to other right to claim compensation for death or permanent disablement:-- (1) The right to claim compensation under Section 92-A in respect of death or permanent disablement of any person shall be in addition to any other right (hereinafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.
(2) A claim for compensation under Section 92-A in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under Section 92-A and also in pursuance of any right on the principle of fault, the claim for compensation under Section 92-A shall be disposed of as aforesaid in the first place.
(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under Section 92-A is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first mentioned compensation and-
(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or less than theamount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.'
XX XX XX XX'92-D. Applicability of chapter to certain claims under Act 8 of 1923:-- The provisions of this chapter shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen's Compensation Act, 1923 (8 of 1923) resulting from an accident of the nature referred to in subsection (1) of Section 92-A and for this purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act.'
'92-E. Overriding effect:--The provisions of this chapter shall have effect notwithstanding contained in any other provision of this Act or of any other law for the time being in force.'
'93. Definitions: In this chapter-
XX XX XX XX(b-a) 'liability' wherever used in relation to the death of or bodily injury to any person includes liability in respect thereof under Section 92-A.'
XX XX XX XX'95. Requirements of policies and limits of liability:--
XX XX XX XX(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person.'
XX XX XX XX'96. (a) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment unless, before or after the commencement of the proceedings in which the judgment is given, the insurer had noticethrough the Court of the bringing of the proeedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely;
(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than 14 days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or
(b) that there has been a breach of a specified condition of the policy being one of the following conditions, namely;
(i) for hire or reward, where the vehicle ison the date of the contract of insurance avehicle not covered by a permit to ply for hireor reward, or
(b) for organized racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle; or
(d) without side-car being attached, where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(c) that the policy is void on the ground that it was obtained by the non-disclosure of amaterial fact or by a representation of fact, which was false in some material particular.'
XX XX XX XX'110-B. Award of the claims Tribunal:--On receipt ot an application for compensation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 109-B, may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.
Provided that where such application makes a claim for compensation under Sec. 92-A in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter VII-A.'
13. A careful analysis of the above provisions would show the following aspects:
(1) Section 92-A of the Act creates a No Fault Liability to a limited extent, viz., payment of a sum of Rs. 15,000/- to the legal representatives of a person dying in an accident and to the extent of Rs. 7,500/- to a person who has suffered permanent disablement as a result of a motor accident.
(2) The amount of Rs. 15,000/- as compensation fixed in the case of death andRs. 7,500/- in the case of permanent disablement is an irreducible and an independentcompensation payable by the owner of thevehicle.
(3) This no fault liability payable under Section 92-A of the Act is independent of the liability to pay compensation in a claim petition under Section 110-A of the Act on the basis of fault to wit on a finding that theaccident occurred as a result of the rash and negligent driving of the vehicle. Therefore, a claim under Section 92-A of the Act can be made through an independent petition or by incorporating a separate statement in this behalf in an application filed under Section 110-A of the Act based on the principle of fault indicated in the proviso to Section 110-A (2) of the Act.
(4) Whether the compensation under Section 92-A of the Act is claimed by an independent petition or by making a separate statement in an application made under Section 110-A of the Act based on the principle of fault that claim has to be disposed of as expeditiously as possible in the first place, as expressly provided in Section 92-B(2) of the Act.
(5) No part of the amount awarded under Section 92-A of the Act is refundable, even if ultimately the claim petition presented under Section 110-A of the Act were to be dismissed on the ground that the accident occurred only due to the negligence of the deceased person or the person who had suffered permanent disablement or on a finding that the accident occurred as a result of contributory negligence by the deceased person or the person who had suffered permanent disablement, as the case may be.
(6) If on adjudication of an application under Section 110-A, of the Act, compensation higher than what is awarded under Section 92-A of the Act were to be awarded, (hen the amount already awarded under Section 92-A of the Act has to be deducted out of the amount payable under the Award.
(7) For the purpose of fixing the liability of the owner of the vehicle to pay compensation amount specified in Section 92-A of the Act, the only fact to be proved is that the death or permanent disablement was caused, as a result of an accident by the vehicle, of which the person concerned is the owner.
(8) Though the liability under Section 92-A of the Act is fixed only on the owner of the vehicle and there is no reference to Insurance Company in view of Section 93(b-a) of the Act the Insurance Company is liable to paythe compensation, awarded under Sec. 92A of the Act.
(9) Sub-section (5) of Section 95 mandates that an insurer shall be liable to indemnify the insured person/ persons specified in the policy -- but only in respect of any liability which the policy purports to cover.
(10) There is no provision which deprives the right of defence of the Insurance Company on any of the grounds specified in Section 96(2) of the Act, at the time of fixing the liability to pay compensation under Section 92-A of the Act.
14. Regarding the scope of the provisions to the extent indicated above there is no controversy. The controversy, however, is in relation to the question as to what is the nature and extent of enquiry to be held and the condition to be fulfilled before fastening this no fault liability fixed on the owner, also on the Insurance Company.
15. It has been the contention of the claimant that a mere existence of the policy is sufficient, whereas the contention of the Insurance Company is that mere existence of the policy is not sufficient, but it should also be found that the risk was covered by the insurance policy.
16. As stated earlier, a Division Bench of this Court in the case of Mohammad Iqbal v. Bhimaiah : AIR1985Kant171 held that before fixing the liability under Section 92-A of the Act on the owner and the insurer, the Tribunal is bound to decide the following two questios, viz.,
(1) Whether the death or permanent disablement of any person resulted from an accident arising out of the use of the motor vehicle in question? And
(2) Whether it is proved that the vehicle was insured at the relevant time, unless it is not denied by the insurer?
17. In that case, the Division Bench, however, was not called upon to decide as to whether in deciding the second question it was also necessary for the Tribunal to examine as to whether the risk was covered by the policy.It is only in M.F.A. No. 1521 of 1987, a Division Bench of this Court held that the questions such as, whether a person travelling in a goods vehicle was a gratuitous or a fare paying passenger and whether the insurer was not liable to pay except on a special cover, are all matters to be decided on evidence and therefore those questions cannot be considered at the time of determining compensation under Section 92-A of the Act. The Division Bench further held that if ultimately the findings were to be that Insurance Company was not liable under the policy, a direction has to be issued to the owner to reimburse the Insurance Company.
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 92-L or on ground of fault under Section 110-A, 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 92-A 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 no where provided and it is not also the case of the claimant that an insurer should pay the amount awarded under Section 92-A 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 claimunder Section 92-A 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 92-A 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 92-A, 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 the 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 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 ofaccident 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 suffered permanent disability.
19. In the cases illustrated above, on looking into the facts alleged in the petition and going through the policy issued by the Insurance Company, a finding at once can be recorded to the effect that the risk was not covered by the policy. There might be other similar cases, in such cases, in our opinion, the Tribunal cannot refuse to look into the contents of the insurance policy which patently establishes no liability on the Insurance Company and blindly make an award directing the Insurance Company to pay the amount of compensation awarded under S. 92-A of the Act stating that a direction would be made in the final award directing the Insurance Company to file a suit against the owner and recover the same from him. In our opinion, just as a person impleaded as a respondent to a claim petition as owner, cannot be made liable to pay compensation under S. 92-A of the Act, if he were to show that he was not the owner of the vehicle, the Insurance Company also cannot be asked to pay the compensation if it were to make out that patently, the policy did not cover the risk. In our opinion there is no justification to foist the liability on the Insurance Company if it is in a position to show that patently the risk was not covered by the policy.
20. We, however, make it clear that there might be cases in which that on consideration of the material placed before it at the stage of consideration of the claim under S. 92-A, prima facie, it appears to the Court that the liability was covered by the policy, on the ground that it was not possible to hold conclusively that the policy does not cover the risk, in such a summary inquiry, and it requires an elaborate trial, the Tribunal could direct the Insurance Company to pay the amount subject to direction regarding re-imbursement if and when the final finding were to be in favour of the Insurance Company. In our opinion, this position in law flows from the provision of S. 92-B(2) of the Act which requires the Tribunal to dispose of the claim under S. 92-A, as expeditiously as possible.
21. For the foregoing reasons, we answer the question referred for our opinion as follows:--
No award directing payment of compensation under S. 92-A of the Motor Vehicles Act, 1939, could be made against the insurer without a summary enquiry and a finding that, prima facie, the risk giving rise to the claim is covered by the Policy of Insurance.
22. Order accordingly.