Judgment:
A. Pasayat, A.C.J.
1. As there was divergence in view, the matter has beenreferred to larger Bench and following questions have been referred for opinion:--
(a) Whether the Tribunal has power to allow interest on the compensation awarded under Section 92-A of the Act in view of amendment to Section 110 CC of the Amending Act 47 of 1982? And
(b) Whether the liability under Section 92-A can be saddled on the insurer even in a case where that liability other than a statutory liability is not covered by the policy of insurance?
2. The matter was under consideration in an appeal under Letters Patent arising out of an appeal against order of a learned single Judge dealing with scope and ambit of Section 92-A of the Motor Vehicles Act, 1939 (in short, the 'Act'). Factual aspects need to be noted in brief. Facts as noticed by the learned single Judge and the Division Bench are as follows:--
On 16-9-1983, jeep bearing registration number OSS 6481 was proceeding from Bargarh to Paikmal. After crossing Padampur, at about 9 a.m. the vehicle dashed against a bridge as a result of which, it fell Into a Nala underneath. Deceased Jagdish Prasad and witnesses (PWs.5 and 11) were occupants of the vehicle at that time. Fatal injuries sustained by Jadgish Prasad in the accident is cause of action for his legal representatives to file an application before the Second Motor Accidents Claims Tribunal (Northern Division), Sambalpur (in short, Tribunal') under Section 110-A of the Act claiming Rs. 3,42,000/- as compensation against Ghanashyam Das (PW-6) as owner and New India Assurance Company Ltd. (the present appellant) as the insurery.
Case of Ghanshyam is that while the Vehicle was in custody of PW-9 in the garage for repair being entrusted by him, deceased forcibly took away the vehicle for the garage. Since it was taken against his 'consent by committing an offence, he is not liable for the claim. Case of insurer is that Ghanashyam had agreement with the deceased for transer of the vehicle and thus, deceased was the owner. Since ownership was transferred, it is not liable, to indemnify Ghanashyam any further.
3. On the facts one of the Hon'ble Judges held as follows:--
(a) That even without an application inthat regard, the Tribunal could grant compensation under Section 92-A of the Motor Vehicles Act, 1939 on the basis of the no-fault liability;
(b) That the Tribunal could not award Interest on compensation awarded under Section 92-A.
(c) That even when the owner was not liable to pay compensation under Section 110-A of the Act on the principle of vicarious liability, the insurer could be made liable to pay compensation In terms of Section 92-A of the Act.
Though the other Hon'ble Judge agreed to the first conclusion, with regard to the second and third conclusions, he held that in view of Section 110-CC. interest could be awarded, and the liability under Section 92-A can be attracted only when that particular liability is covered by the insurance policy, except under statutory liability covered under Section 95 of the Act, liability under Section 92-A can be saddled on the insurer only when that particular liability even in a case where that liability is other than a statutory liability, is covered by it and liability is covered by a policy.
4. We have heard the learned counsel for the parties. Though large number of decisions have been referred to by them, we do not think it necessary to refer to all of them, as we propose to deal with the matter with reference to the relevant provisions and their scope arid ambit.
5. By virtue of Amendment Act 47 of 1982, a new Chapter, i.e. Chapter VII-A titled 'Liability without fault in certain cases' was added with effect from 1-10-1982. The said Chapter consists of Sections 92-A to 92-E of the Act, which correspond to sections 140 to 144 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'new Act'). Section 92-A provides for award of interim compensation by the owners of the vehicles without proof of fault in case of death or permanent disablement. The liability is absolute and is not dependent on a claim application being filed by the claimant. By the said Amendment Act, provisions contained in Section 110-CC of the Act were changed and the word 'Act' has been substituted for the word 'Chapter'. Section 92-A read as follows:--
'92-A. Liability to pay compensation incertain cases on the principle of no fault:--
(1) Where the death of or permanentdisablement of any person has resulted froman 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 Sub-section (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 be 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.'
6. 'Liability' is defined in Section 93(ba) and includes in relation to the death of or bodily injury to any person under Section 92-A. The Explanation to Section 110 of the Act was inserted with effect from 1-10-1982 which provides that the expression 'claim' for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of the motor vehicles includes claim for compensation under Section 92-A. It is to be noted that Section 110-A was inserted with effect from 1-10-1982. By the aforesaid Amendment Act, special provisions to compensation in case of motor accident were made.
7. Learned counsel for the parties have taken various stands, mostly with regard to the liability of the insurer to pay compensation and the interest. On a reading of the various decisions rendered by the Apex Courtand various High Courts, the position more or less emerges to a meeting point of agreement.
The award under Section 92-A is an interim award which would be finally adjusted by the Tribunal under Section 110-A of the Act on being enquired into under Section 110-B. As defined under Section 93(ba), liability under Section 92-A is also a liability as Section 94 mandates for compulsory insurance of the vehicle for the protection of third parties. Section 110-CC deals with award of interest on claim for compensation made under the Act. The position relating to interest has undergone drastic changes after the amendment with effect from 1-10-1982. Prior to that date, interest, was relatable to claim for compensation, under the Chapter, but the said expression has been substituted by the expression 'Act' with effect from 1-10-1982. Payment of interest on the claim for compensation can be saddled on the insurance company when the Tribunal decides to make an award in terms of Section 92-A.
8. The object for which Section 92-A has been enacted is to enable expeditious disposal of a claim petition made under the provision. The said object would be defeated if the Tribunal is required to hold a regular trial in the same manner as is necessary for adjudicating a claim petition under Section 110-A of the Act. For awarding compensation under Section 92-A of the Act, the Tribunal is required to satisfy itself in respect of the following aspects:--
(a) ail accident has arisen out of the use of a motor vehicle.
(b) the said accident has resulted in' permanent disablement of the person who is making claim, or death of the person whose legal representatives are making the claim; and
(c) the claim is made against the owner and the insurer of the motor vehicle involved in the accident. In other words, the vehicle is the subject-matter of insurance.
The question is whether at the stage of adjudicating a petition under Section 92-A of the Act, detailed analysis of the materials is necessary. As pointed out earlier in the back-drop of the object of the provision, it would be against the very purpose of enacting it. Prima facie, the Tribunal has to be satisfied that the owner of the vehicle mayhave the liability to pay compensation under the Act.
9. The right to claim compensation under Section 92-B in respect of death or permanent disablement of any person shall be in addition to any other right (referred to in the section as the right on the principle of fault) to claim compensation in respect thereof under any other provisions of the Act or of any other law for the time being in force. Section 92-B(2) mandates expeditious disposal of a claim for compensation. It is clearly stated in the provision that 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. Section 92-B(3) deals with the question of adjustment of first mentioned compensation i.e. the compensation relating to no fault and subsequent one relating to compensation on the principle of fault.
Learned counsel appearing for the Insurance Company submits that the insurer has no liability where under the policy the Insurance Company is not liable to pay compensation. Obviously when on cursory scrutiny of the materials, the Tribunal comes to hold that ultimately the Insurance Company would have no liability, question of asking it to pay under Section 92-A does not arise, as it would have no liability in view of the position of law as stands presently. In such cases, the Tribunal cannot ask the Insurance Company to make payment. At the cost of repetition, we may indicate that where prima facie there is material to show that the Insurance Company may have liability to pay, the order under Section 92-A can be passed by the Tribunal asking the Insurance Company to make the payment. The question of liability under Section 92-A is accordingly answered.
Reference questions are accordingly answered.
P.K. Misra, J.
10. I agree.
B.P. Das, J.
11. I agree.