N.N. Mithal, J.
1. During the pendency of the petition under Section 110-A of the Motor Vehicles Act, 1939 the claimant was awarded interim compensation under Section 92-A of the Act against the owner of the erring vehicle and the Insurance Company was absolved from its liability to reimburse the claimant in that behalf. Aggrieved by this order the claimant has come up in appeal contending that the Insurance Company was also liable to pay the interim compensation awarded as its liability was coextensive with that of the owner of the insured vehicle. Insurer resists this contention.
2. A short question to be resolved in this appeal is as to the liability of the Insurance Company to reimburse the sum awarded by way of interim compensation under Section 92-A on the basis of 'no fault liability'? It may be recalled here that Chapter VII-A was introduced in the Motor Vehicles Act by No. 47 of 1982 with a view to provide immediate succor and relief to the family of the victim of a motor accident. According to it, when death or permanent injury results from an accident occurs involving the use of a motor vehicle the owner of the vehicle shall be liable to pay an interim compensation of Rs. 15,000/- or Rs. 7,500/- in the event of death or permanent disablement, as the case may be, not withstanding victims own contributory negligence or failure to prove negligence of the driver of offending vehicle. Section 92-A(1) is in these terms:
Where the death or 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 owner of the vehicle shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
3. The rest in this chapter is not quite relevant except to the extent that such claims require expeditious disposal on a priority basis and in doing so neither proof of negligence of the driver nor any contributory negligence of the victims have to be considered. Section 92-E, gives an overriding effect to the provisions of this chapter.
4. 'Liability' as defined in Section 93(ba) occurring in Chapter VIII includes the liability under Section 92-A also. According to the appellant this makes the liability incurred by the insured reimbursable by the insurer in the same manner as in the case of ordinary liability incurred under Section 110-B of the Act. The contention of the insurer on the other hand was that on the language of Section 92-A it was only the owner of the vehicle who is liable to pay compensation, as there is nothing further therein to extend this liability on the Insurance Company.
5. The submission of the Insurance is two fold : (1) that under Section 92-A only the owner of the vehicle is liable to pay compensation there under, and (2) by enlarging the scope of the term (liability in Section 93(ba) the insurer has been deprived of its right to defend even on the limited grounds available to it under Section 96(2) of the Act. Both these submission have no merit.
6. As regards the first submission suffice it to say that Chapter VII-A creates a new kind of liability on the owner of the erring vehicle based on 'no fault'. This liability also, like the one under Section 110-A, is primarily imposed on the owner and not on the insurer. In substance it is only a charging section while matter relating to jurisdiction and procedure have been provided for under various section in Chapter VIII of the Act. Section 110 provides the forum, Section 110-A deals with the mode of making the claim, while Section 110 B deals with the award of compensation to the claimant.
7. It is contended on behalf of the insurer that proviso to Section 110-B leaves the claims made under Section 92-A to be disposed of in accordance with the provisions of Chapter VII A. Since in Chapter VII-A no liability is fastened to the insurer it cannot be asked to reimburse the owner of the insured vehicle for his liability on 'no fault' basis. In my opinion, this argument has no merit. When it is said that a claim under Section 92-A will be disposed of in accordance with Chapter VII-A it only means that in respect of claim based on 'no fault' the Tribunal shall only consider the fact of an accident; that it involved the use of a motor vehicle and that it resulted either in death or permanent disability. Besides, it shall not see if there was any negligence of the driver of the erring vehicle nor shall victims' contributory negligence be taken into account. There is no provision for making an award under Chapter VII-A and, therefore, the term 'disposed of can only mean the various factors which ought to be considered in disposing of such a claim. This expression is meant only to limit the scope of the enquiry.
8. It may be relevant to mention here that initially in the Amendment bill, no such proviso had been suggested but the 'no fault' liability of Rs. 100000/- in the event of death was proposed. This amount was slashed down to a mere Rs. 15,000/-and the proviso was added in the Act. The purpose is obvious. When the two main defenders, the insured (owner) and the insurer have been stripped off their right to defend on merits except to a limited extent, the legislature in its wisdom thought it proper to bring down the amount of compensation based on 'no fault' to Rs. 15,000/-. Inherent in this must have been the idea that Insurance companies will also not grudge payment of such a small amount to the victim or his dependents.
9. Coming now to the second question, Section 93 deals with definitions and is prefixed by the expression 'in this Chapter'. Therefore, where ever the words defined in Section 93--occur in Chapter VIII they must be given the same meaning as is provided in the definition. Section 93(ba) defines 'liability' at 'including liability in respect of death or bodily injury covered by Section 92-A. It, therefore, becomes a statutory obligation of the insurer under Section 95 to cover such liability in the policy of insurance and under Sub-clause (5) thereof it is bound to indemnify the insured in respect of that liability. Section 96-(1) also makes it obligatory upon the insurer to satisfy judgment in respect of such liability obtained against the insured, the only prerequisite being notice or information of the proceedings.
10. It is urged that by merely enlarging the scope of the term 'liability' on Section 93-(ba) the insurer stands deprived even of a very limited right of defence and this was likely to give rise to collusive claims to the detriment of the insurance companies. I cannot entirely agree. May be in some cases collusive claims may be set up but this alone cannot be a ground for taking a view which will defeat the very purpose of the Act unless it must be so. To me the apprehension of the insurer appears to be ill founded. What to speak of the insurer even the owner of the vehicle stands deprived of his two vital defences, negligence and also victim's contributory. No wonder the Insurer also gets a clip of its rights but such impingement on its rights cannot invalidate the provision nor can it lead us to the conclusion that the legislature did not intend to bind the insurer in any manner. The basic objective to be achieved by the amendment has been to provide prompt interim relief to the deprived persons until their main claim to compensation is decided. If the whole gamut of enquiry is left open it was bound to result in enormous delay. As it is, the claim petitions take more than a decade before these are finally decided and this naturally deprives the needy of their monetary support. This object has to be kept in mind while interpreting the various provisions.
11. It was next submitted that there may be cases where the vehicle was not insured at all and if in such a case the insurer is excluded from hearing it will be bound to satisfy the award made under Section 92-A. The submission merits consideration. In fact Section 96(2) makes it obligatory to issue notice to the insurer before it can be made liable to satisfy the judgment against the insured. At that stage the Tribunal will be bound to consider whether the vehicle in question was at all insured with the insurer. However, it cannot raise any other plea to defeat the claim by pleading avoidance or cancellation of the policy.
12. The consensus of judicial opinion in the country is that the insurer is bound to satisfy interim award based on 'no fault' under Section 92-A and I also humbly agree generally with the line of reasoning adopted therein. What I disagree, however, is the extent to which these decisions go to let the insurer remain a silent spectator even though its stand may be that the vehicle was not even insured with it. I cannot agree to this drastic interpretation. When Section 96 of the Act mandates service of notice on the insurer before it can be made liable to reimburse the claim against the insured (owner of the vehicle) it pre-supposes a prima-facie enquiry into the question whether the concerned vehicle was actually insured with the insurance company. Before such an interim award is sought to be enforced against the insurer, the Tribunal must make at least a minial enquiry about the factum of insurance, to satisfy itself that there was a contract of insurance in respect of the vehicle with that insurer. It is then and alone that the insurer can be asked to satisfy that judgment In 1987 ACJ 346 : II (1987) ACC 203, Mohan Lal v. National Insurance Co. and Ors. the owner bad come up in appeal against an interim award to which the insurance company was not a party but was imp leaded in appeal. A preliminary objection as to the maintainability of the appeal was raised by it on the ground that it was not a party before the Tribunal. The objection was upheld and the court took the view that the insurer cannot be made to satisfy any award unless there was prima facie proof of insurance.
13. In the instant case, I have not been shown anything on the record as to what is the stand of the insurer. The fact the vehicle was insured with the insurance company is not clear. If there is not dispute regarding this fact then the appellant would be entitled to seek reimbursement of its claim from the insurer. If, however, this fact is denied then the Tribunal should first determine the short question if the vehicle was insured or not and thereafter proceed according to law.
14. The appellant sought support from a decision of a learned single Judge of this Court in Sant Ram and Anr. v. Survapal and Ors. 1988 ACJ 202 where it was held that the insurer is liable to satisfy a judgment obtained under Section 92-A of the Act. The decision proceeded primarily on the principal that where enactment is on social welfare (1) the rule of beneficial construction ordains that if a statute is capable of two constructions, that construction should be preferred which will fulfill the policy of the Act and is more beneficial to the interest of the persons for whose benefit it was enacted.
15. The learned Counsel for the respondent, however, submitted that in that case the learned Judge did not consider the specific language of Section 92-A (1) & (2). Although it is true that the main question in that case was as to the maintainability of an appeal against an interim award and the court was only proving the question from that angle. However, in doing so it was necessary for the court to come to the conclusion as to the true nature of such an order and to see whether it amounted to an award within the meaning of Section 110-D of the Act. It was in this context that the aforesaid observations have been made after taking into account the amended definition of liability under Section 93(ba). As pointed out earlier, the change in the definition enlarges the scope so as to include the claim under Section 92-A.
16. Reference may also be made to New India Insurance Co. Limited v. Mlnguel Laurence Corrcia 1986 ACJ 646, Oriental Fire and General Insurance Co. Ltd. v. Aliexo Ferandar 1986 ACJ 1137 and Lata Jain v. Shyam Lal 1987 ACJ 190 : I (1987) ACC 210 (Raj.). Thus in the cases in hand the stand of the insurer is not clear from the record. It is also not clear whether the Insurance Company was a party before the Tribunal or not and it had an occasion of either admitting or denying the existence of a contract of insurance. It is, therefore, not possible for this Court to finally determine this controversy. However, it would be enough to indicate here that in case the fact of insurance is admitted then the Insurance Company will be liable to reimburse the insured as regards his liability under Section 9-A also. On the other hand, if it is denied then the Tribunal should prima facie satisfy itself about the existence of a policy of insurance and then make the award in accordance with law.
17. The appeal, therefore, succeeds and is allowed. The matter will now go before the Motor Accidents claims Tribunal, Varanasi for afresh decision in the light of the observations made above. Costs will abide the result of the claim petition.