P.C. Naik, J.
1. This appeal is directed against an interim award dated 23-4-1992 passed by the 2nd M.A.C.T. (S.D.), Berham-pur, Camp -- Jaypore, whereby interim award in the sum of Rs. 15,000/- has been passed in favour of the claimant/respondent No. 1 and against the appellant-insurer. The facts giving rise to this petition are hereinafter stated.
2. On 3-4-1987 claimant Kamalalochan presented a petitioner Under Section 92A of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') before the Motor Accident Claims Tribunal (S.D), Berhampur, Camp -- Jay-pore claiming compensation amounting to Rs. 15,000/- from the owner, driver and insurer of the truck bearing Regd. No. ORK 1453. This was registered as M.J.C. No. 40/ 87. In Col. 7 of the claim petition it was specifically averred that:
'the deceased was travelling in the offending truck involved in the accident as a passenger from Dabugaon to the Papada-handi for business purpose.'
Again, in Col. 19 of the claim petition it isstated that:
'On 7-2-1987 at about 10.00 p.m. the deceased Doimati Komaruni along with her some other co-passengers of about 20 to 25 while coming from Daburgaon to Papada-handi side the accident took place near village Boriguda. The offending vehicle bearing the Regd. No. ORK 1453 being driven by the driver very rash and negligently and for which act of his negligence he could not control the vehicle and.....'
3. On notice being issued the owner andthe driver did not appear, hence were proceeded ex parte. The appellant-insurer entered appearance and denied its liability on the ground that carrying passengers in a goods vehicle was in violation of the terms and conditions of the contract of insurance. It contended that in view of the admitted position, that the deceased was a passenger and this fact being further borne out from the police papers which disclose that there were about 20 to 30 passengers in the goods vehicle, it could not be made liable. It was also contended that the owner of the vehicle had not paid any premium for obtaining a policy covering the risk of the passengers travelling in a goods vehicle and, as the deceased was not travelling in the goods vehicle by virtue of or under a contract of employment, the liability was not required to be covered under the Act.
4. The claimant did not enter the witness-box. He however, filed some documents which were marked as Exts. 1 to 6. On the basis of the above documents, the Tribunal came to the conclusion that as death was caused due to an accident arising out of the use of a motor vehicle and the claimant being the son of deceased he was entitled to compensation of Rs. 15,000/- on the principle of no fault liability. It further held that as the vehicle which caused the accident was insured, insurance company was liable to indemnify, the insured under the policy and, accordingly, was directed to pay the com-pensation. The plea of the insurer that in view of the admitted position that the deceased was travelling as a passenger in a goods vehicle, no liability could be fastened on it under the policy as such a risk was not covered was negatived. If the Tribunal was of the opinion as the statutory liability was a measure of social justice the objection raised by the insurer being on merits could not be considered at the stage of 92-A proceeding. The question therefore arises, whether a plea of the type raised by the insurer is foreign to a proceeding Under Section 92A of the Act, which reads thus:
'92A. Liability to pay compensation in certain cases on the principle of no fault:--
(1) Where the death of 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.
(1) 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 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.
5. A mere perusal of Sub-section (3) above would show that any pleading or proof of a wrongful act, negligence or default of the owner or owners of the vehicle or vehicles involved in the accident or of any other person is foreign to an adjudication under Section 92A of the Act, So once death or injury resulting in permanent disability of any person arising out of the use of a motor vehicle or vehicles involved in an accident is established, the consequence followed, i.e., an award of Rs. 15,000/- in case of death or Rs. 7,500/- in case of permanent disability was to be passed (the limits then provided). It may also berelevant to notice that any wrongful act, negligence or default of the person who has died or suffered permanent disablement cannot be pleaded as a defence in a proceeding Under Section 92A of the Act. It, therefore, cannot be disputed that the principle of no fault liability makes the owner of the vehicle liable for compensation even when the accident is not due to the fault of the owner of the vehicle and even if the accident has taken place due to the fault of the victim. It is thus obvious that this provision was introduced as a welfare measure to benefit the dependents of the deceased or the persons who are victims of road accidents: This cannot be disputed. It is in the nature of a beneficial legislation enacted with a view to offer the benefit of expeditious payment of a limited amount by way of interim compensation to the victim or dependents of a victim of an accident arising out of the use of a motor vehicle. The question, however, which arises for determination is, whether Section 92A only dispenses with proof of negligence and/or defence of contributory negligence or no negligence on the part of the owner/driver of the offending vehicle or, it bars other defences also, e.g., one that may be raised by the insurer that it cannot be held liable because the risk was neither covered nor required to be covered Under Section 95 of the Motor Vehicles Act. It is this question which requires determination in this appeal.
6. In order to consider the question it will be useful to refer to certain provisions contained in the Motor Vehicles Act, 1939, Chapter VIII related to insurance of motor vehicles against third party risk. Section 93(ba) provided that 'liability' wherever used in relation to death or bodily injury to any person includes liability in respect thereof under Section 92A also. Section 94 of the Act provided that no person shall use or cause or allow any other person to use except as passenger, a motor vehicle in a public place unless the vehicle is covered by policy of insurance complying with the requirements of Chapter VIII. Exemption from this provision was however granted to vehicles owned by the Central or State Government and used for Government purpose not connected with any commercial enterprises or vehicles which may be exempted from the operation of this pro-vision by the Central or the State Government. Section 95(1) related to the requirements of policies and limits of liability of an insurance company. This being a relevant provision it is quoted in extenso :
'95(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer or by a co-operative society allowed under Section 108 to transfer the businessof an insurer, and
(b) insures the person or classes of person specified in the policy to the extent specified in Sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle is a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required :--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets in the vehicle, or
(c) if it is a goods vehicle, being carried inthe vehicle, or
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability inrespect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or
(iii) to cover any contractual liability.'
Sub-section (2) of Section 95 provided for the statutory liability of the insurer. Section 96(1) provided that judgment and award passed against the persons who are the persons insured in respect of third party risk is to be satisfied by the insurer. This reads thus :
'96. Duty of insurers to satisfy judgments against persons insured in respect of third party risks: (1) If, after a certificate of insurance has been issued under Sub-section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 (being a liability covered by the terms of the policy) is obtained against any person issued by the policy, then, not withstanding that the insurer may be entitled to avoid or cancelled or may have avoided or cancelled the policy, the insurer shall, subject to the provision of the section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.'
From the above, it is clear that under Section 96 of the Act, an insurance company is only required to satisfy a judgment passed against the insured person in respect of a liability which is covered by a policy as required by Section 95(1) of the M. V. Act. From this it follows that the only liability which the insurer is required to cover under the statute are those provided in Sub-section (1) of Section 95 of the Act and upto the limit that is laid down in Sub-section (2) of Section 95 of the Act. So, this being the legal position, can it be said that though a liability is not required to be covered by Section 95(1) nor is so covered, yet as the proceeding is one underSection 92A of the Act, the insurer will be made liable and will not be permitted to plead and establish, though in a summary manner, that the risk in question was neither covered nor required to be covered Under Section 95(1) of the Act? This obviously cannot be the position nor can such a proposition spelled out from the Act. The liability of an insurer cannot be the insurance policy. The contract of insurance is a contract of indemnity and the purpose is to indemnify the insured and is definitely limited to the risk covered and to the extent of the sum assured in the policy. It comes into force effect on payment of premium after the proposal is accepted. The rate of premium depends on the risk covered. So unless there is a proposal to cover a particular risk and premium for covering that particular risk is paid, there is no question of that particular risk being covered by an insurance policy. It is for this reason that every insurance policy contains a recital relating to the risk covered and also contains premium schedule showing the premium paid for different risks covered under the policy. It being a contract of indemnity, the rights and liabilities of the insured and the insured are governed by the terms and conditions contained in the contract, i.e., insurance policy. In this view of the matter, it cannot be said that a 'liability Under Section 92A of the Act is to be fastened on the insurer without any reference to the insurance policy. The mere fact that a vehicle is insured, if not by itself, sufficient to saddle the liability on the insurer. It is to be further proved/ established that the risk in question was covered or required to be covered Under Section 95(1) of the Act. The provisions contained in Section 92E cannot be interpreted in a manner to mean that a mere fact of insurance would be sufficient to saddle the liability on the insurer. While determining the liability of the insurer whether under Section 92A or under Section 110B reference to Section 95 and Section 96 of the Act cannot be dispensed with.
7. A claim for compensation under the Motor Vehicles Act is in substance of claim for damages against the wrong door and to obtain the relief, proof of negligence is necessary. It is for this reason that unless negligence is proved the action cannot succeed. Being conscious of the fact that insome cases it may not be possible for a claimant to prove negligence and further, to remove the minimum hardship caused by the death or injury, the provisions contained in Section 92-A dealing with no fault liability providing for liability on the principle of no fault was introduced. Under Section 92-A of the 1939 Act, liability is independent of proof of negligence nor can it be defeated on the defence of contributory negligence on the part of the claimant or the person killed. It can also not be defeated on the plea of inevitable accident. In otherwise, the liability is absolute on the happening of an accident. As per the language of this section, the liability is to be saddled on the owner of the vehicle or vehicles involved in the accident. However, the Courts have held that since the owner is liable in case the vehicle is insured, the liability is to be fastened in the insurer. The moment this position is accepted, it follows that the liability of the insurer is required to be ascertained or fixed with reference to the insurance policy. To say that the liability is to be fixed without reference to the insurance policy, in my opinion, is not correct.
8. Reverting to the case in hand, it is an admitted position that the deceased along with 25 to 30 other persons was travelling as passenger in a goods vehicle. Obviously, the risk of passengers travelling in a goods vehicle is not required to be covered by the provisions contained in Section 95 of the Act nor as pleaded by the insurer was covered by the insurance company. The owner has neither appeared nor adduced any evidence to show that he had obtained a policy covering risk of passengers in a goods vehicle. In this view of the matter, the learned Tribunal fell in error in not considering the plea of the insurer that it was not liable. The impugned order directing the appellant/ insurer to pay the interim compensation, therefore, cannot be sustained.
9. In view of the discussion aforesaid, the impugned order is set aside. The case is remitted to the appropriate Tribunal to reconsider the application after hearing the parties and to proceed to dispose of the application under Section 92-A of the Act inaccordance with law and in the light of this order. It may be clarified that the enquiry contemplated will necessarily be summary in nature and, hence the application under Section 92-A of the Act should be disposed of expeditiously.
10. I may add, as the application in this case was filed under the 1939 Act, reference has been made to the provisions contained in that Act. As the provisions contained in Section 140 of 1988 Act are similar to those of Section 92-A of the 1939 Act, the observation made above with respect to proceeding Under Section 92-A of the 1939 Act will equally apply to a proceeding Under Section 140 of the 1988 Act.
11. Appeal is allowed. No order as to