P.K. Samanta, J.
1. This is an application under Article 227 of the Constitution of India against the judgments and orders dated 19th November, 1997 and 12th December, 1997 passed by the West Bengal State Consumer Disputes Redressal Commission in SC Case No. 386/A/1997.
2. A claim case under section 110A of the Motor Vehicles Act, 1939 was filed by the hiers and legal representatives of one Gostho Hazra who wasrun over and killed in an accident caused by Bus No. WBU-1175 on 9.11.1985. The opposite party No. 1 is the owner of the said Bus. Both the opposite party No. 1 and the petitioner/insurer contested the aforesaid claim case before the Motor Accident Claims Tribunal by filing written statements. The opposite parties, before the Motor Accident Claims Tribunal, as above, did not adduce any evidence and also did not file any document
3. The facts relevant for the present purpose are that the Insurance Company, the opposite party No. 2, before the Claims Tribunal, pleaded that the bus was not covered by any valid policy of insurance at the relevant point of time and the owner of the bus also did not produce any policy of insurance or any other document showing that the bus was actually covered by a policy of insurance at the relevant point of time. As the claimants failed to establish before the Claims Tribunal that the death was caused by an negligence on the part of the driver of the vehicle or because of any fault in the vehicle itself, so the aforesaid motor accident claim case was disposed of by an award of compensation of Rs.15,000/- in favour of the claimants for the death of their predecessor Gostho Hazra with the direction upon the owner of the vehicle to pay the aforesaid compensation to the claimants. The insurance Company was, however, exempted from payment of any compensation as the owner of the vehicle, the opposite party No. 1 herein, failed to prove by any documentary evidence that his bus was actually covered by a policy of insurance at the relevant time. After the aforesaid judgment and order, the opposite party No. 1, the bus owner, filed a petition before the Calcutta District Consumer Disputes Redressal Forum against the petitioner/insurance company under section 12 of the Consumer Protection Act, 1986 for a direction upon the insurance Company to pay Rs.20,000/- to the opposite party No. 1 who had paid the sum of Rs.20,000/- to the claimants pursuant to the award passed by the Motor Accident Claims Tribunal. Such a petition was filed with the contentions that the vehicle in question was covered by an insurance policy at the relevant point of time and the said insurance policy was traced out subsequent to the disposal of the claim case by the Motor Accident Claims Tribunal and accordingly it was urged that since the insurance Company was exempted only on the ground that the vehicle was not covered by a valid insurance policy at the time of occurrence of the accident as alleged by it, so the aforesaid amount of compensation is liable to be reimbursed to the owner of the vehicle, the opposite party No. 1, on the basis of the insurance policy by which the vehicle was covered at the date of the accident.
4. The Calcutta District Consumer Disputes Redressal Forum, by a judgment and order dated 18th of June, 1997, dismissed the said petition of the opposite party No. 1 on the ground that the decree of compensation having being satisfied upon payment of the award of compensation by the owner of the vehicle to the claimants, the same cannot be re-opened by the Consumer Disputes Redressal Forum in exercise of the powers under the provisions of the Consumer Protection Act, 1986. That apart, the said forum can not seat in appeal against the judgment and order of the Motor Accident Claims Tribunal, particularly when the owner of the vehicle did not prefer any appeal against the same. On appeal, by the opposite party No. 1, theowner of the vehicle in question, the State Consumer Disputes Redressal Commission, reversed the judgment and order of the Calcutta District Forum and allowed the appeal by directing the petitioner/insurance Company to reimburse the amount of Rs.20,000/- to the opposite party No. 1 who had been compelled to pay the same to the relatives of the victim pursuant to the award passed by the Motor Accident Claims Tribunal. The State Consumer Forum because of the valid certificate of insurance Policy of the vehicle in question covering the period of accident was of the view that the vehicle was duly insured, and therefore the owner of the vehicle had an independent claim of deficiency of service against the insurer apart from the claim in the motor accident claim case. The State Forum came to the conclusion that the insurance Company made a false submission before the Tribunal that there was no insurance policy valid at the relevant point of time in respect of the vehicle in question. The owner of the vehicle had, therefore, a claim for deficiency in service against the insurance Company which can be redressed by the Consumer Redressal Forum in exercise of the power under the provisions of the Consumer Protection Act, 1986.
5. Ms. Sharbani Sen, learned Advocate appearing on behalf of the insurance Company, upon reference to a Supreme Court decision reported in (1995) CPJ 3 (SC) (The Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council) and other decisions of State Consumer Disputes Redressal Commission, Madras and Bombay, raised the question as to the authority and/or jurisdiction of the Commission to entertain the claim petition of the owner of the vehicle in question which arose out of an award of compensation under the provisions of the Motor Vehicles Act. In other words, the question as to Jurisdiction of the Consumer Disputes Redressal Forum to entertain any claim for payment of any compensation by the insurance Company to the owner of the vehicle, was seriously raised upon contention that since alt such disputes clearly fell within the ambit of the provisions of the Motor Vehicles Act and further since by a judgment and order of the Motor Accident Claims Tribunal, such disputes were set at rest, so no further adjudication on the issue is permissible under the provisions of the Consumer Protection Act, 1986.
6. Mr. Asish Bagchi, learned Advocate, appearing on behalf of the opposite party No. 1 refuted the aforesaid contention of the Insurance Company by contending that the Motor Accident Claims Tribunal, did not adjudicate the issue relating to the liability of payment of the amount of compensation by the insurance Company on the basis of the Certificate of insurance of the vehicle and therefore the judgment and order of the Motor Accident Claims Tribunals was in the nature of a no decision so far as it relates to the liability of the insurance Company m making payment of compensation as per the award because of the accident caused by the vehicle which was covered by a valid insurance policy. Therefore, the claim, by the owner of the vehicle, is an independent claim on the basis of the insurance policy of the vehicle which in any event, is a claim related to the deficiency in service. Mr. Bagchi, in support of his contention referred to the decisions of the Supreme Court reported in : AIR1999SC3027 (United India insurance v. Ajmer Singh Cotton and General Mills and others) and : (1997)10SCC436 (H.P. State forest Corporation Ltd. v. United India insurance Co. Limited).
7. In this case, an application for compensation was made by the heirs and legal representatives of the deceased under section 110A of the Motor Vehicles Act, 1939. Under the aforesaid Act, the liability of the insurer has been spelt under section 96 of the said Act. By sub section 1 of section 96 of the said Act a statutory liability has been fixed upon the insurance Company to pay the amount due under a decree of compensation but not exceeding the sum assured to the decree holder as if the insurer is a Judgment debtor. This liability can be enforced against the insurance Company as if it were a judgment debtor. Section 110A in particular did not specify that in an action for compensation the insurer has to be necessarily impleaded as a party defendant but sub section 2 of the section 96 however, gave it the right to defend the action for compensation on the grounds specified therein. The right to defend therefore, was created by the statute and was therefore required to be exercised in the manner prescribed therein and not otherwise. Such right being a statutory right must confine to the provisions of the statute. Thus, in an action for compensation by a third party against the owner of the vehicle or the driver, it would not be open to the insurer to defent the action on any other grounds except that are provided in sub section (2) of section 96 of the said Act For convenience sub sections (1) and (2) of the said Act are quoted hereunder :--
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 insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this 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.
(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 of the bringing of the proceedings, or in respect of any Judgment so long as execution is stayed there on pending an appeal; and an insurer to whom notice of the bringing of any such proceeding 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 fourteen days afterthe 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 a 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 conditional 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.
8. Again section 110B of the said Act provided as under :--
110B. Award of the Claims Tribunal--On receipt of 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 and 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.)
9. Under the aforesaid section while awarding compensation the Tribunal was required to specify the amount which shall be paid by the insurer or the owner or the driver of the vehicle as the case may be. Under the statute the insurer incurs the liability of the assured only and that too to the extent to which the vehicle is assured. The ingredients of the liability of the insurer were no where provided in the said Act. If the assured is not liable, the insurer is also not liable. A claim for compensation can be instituted not only against the driver and the owner of the vehicle which caused an accident, but even against the insurance Company. But such a claim for compensation can never be instituted only against the Insurance Company, as the liability of the insurer occurs only after the liability of the assured is established and that too to the extent to which the vehicle is assured. Though under section 110B of the said Act, as aforesaid, the Tribunal hasthe Jurisdiction only to name the insurer or to specify the amount which shall be paid by the insurer out of the total compensation adjudged by taking into account the extent of assurance by the insurer but the Tribunal cannot exonerate the liability of the insurer if the vehicle is validly assured or apportion the liability between the insured. The insurer is liable to pay compensation on the basis of the contract of indemnity only when the insured is liable to pay the damages to the claimant. Therefore, the liability between the insurer and the insured is governed by the contract of indemnity between them and to the extent to which the vehicle is assured.
10. Thus, upon reading of the provisions of section 96, section 110Aand section 110B of the aforesaid Act, it is clear that the insurer would not be liable until a decree is passed against the owner of the vehicle who is really the assured person and a decree passed against such assured person is also required to be satisfied under section 96 of the said Act, by the insurer. The only manner of avoiding liability of the insurer having been provided in sub-section 2 of section 96 of the said Act, an insurer cannot escape it's liability under the Insurance Policy only because the Motor Accident Claims Tribunal did not specify the amount that are required to be paid by the insurer. Though, normally it requires that respective amounts should be specified for the owner of the vehicle and the insurer as per the extent of it's liability in respect of the assured but if there is no mention of the specific amount for which the insurer would be liable then in view of sub- section (1) of section 96 of the said Act. it would mean that both the insurer and the insured will be jointly and severally liable for the amount decreed unless of course the defence, if any taken, under section 96(2) of the said Act, by the insurer is established.
11. In the case in hand, the defence of the insurer who was made a party to the proceedings before the claims Tribunal was not under sub section 2 of section 96 of the said Act, but was a defence of non-existence of an Insurance policy covering the vehicle at the relevant point of time. The Tribunal, because of the absence of materials did not decide anything as to the liability of the Insurance Company is concerned. The said decision of the Motor Accident Claims Tribunal was therefore, a no decision on the issue relating to the liability of the insurer. Such an issue as to the liability of an insurer on the basis of a valid insurance policy covering the vehicle in question at the relevant point of time, is a matter relating to the contract of indemnity between the insurer and the insured. As the liability to pay compensation to a third party, as held hereinbefore, is Joint and serveral amongst the insurer and the insured, it is always open for the insured to get it reimbursed by the insurer upon proof of the valid cover of insurance of the vehicle in question.
12. In view of the Supreme Court decision in the case of United India insurance (supra) cited on behalf of the opposite party, laying down the principle that a claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy being covered by the provision of section 14 of the Consumer Protection Act, 1986, it cannot be said that Consumer Redressal Forum has no jurisdiction to entertain a petition under the provision of the Consumer Protection Act on behalf of the owner of the vehicle in question for being reimbursed with the amount paid by way of compensation as decreed by Motor Accident Claims Tribunal on the basis of the certificate of insurance covering the vehicle in question at the relevantpoint of time, when the same met with an accident. The decision of the Supreme Court in the case of The Chairman Thiruvalluvar Transport Corporation (supra) referred to by the petitioner/insurance Company, does not have any application in the facts and circumstances of the present case, inasmuch as, in the case before the Supreme Court, no petition was filed on behalf of the legal representative of the deceased victim of the accident before the Motor Accident Claims Tribunal, constituted under the Motor Vehicles Act, 1988. After lapse of prescribed period of limitation for preferring such a claim before the Motor Accident Claims Tribunal under the said Act, the said legal representatives of the deceased victim preferred an application, claiming. Rs.20 lakhs by way of compensation before the National Commission under the provisions of the Consumer Protection Act, 1986. In the said decision, it was held that 1988 Act, can be said to be a special Act in relation to a claims for comepensation arising out of the use of a motor vehicle. The 1986 Act being a law dealing with the question of extending protection to consumers in general, could therefore, be said to be a general law in relation to the specific provisions concerning accidents arising out of the use of motor vehicles found in Chapter XII of the 1988 Act. That 1988 Act being a special law would prevail over the relevant general law such as the 1986 Act The Apex Court was further of the opinion that occurred had nothing to do with the service as defined in section 2(0) of the 1986 Act and accordingly held that the National Commission did not have the jurisdiction to entertain the said application. But in the case in hand, the question is different. It is not a case before the Consumer Forum for an adjudication on the question of quantum of compensation payable under the provisions of the Motor Vehicles Act, 1939 or the liability of the particular party to make such payment of compensation to the victim of the accident or his legal representatives. Here is the case, where the amount as determined by the Motor Accident Claims Tribunal, has already been paid by the owner of the vehicle in question, to the legal representatives of the deceased/victim. The question involved in this case, is whether in view of the certificate of insurance covering the vehicle in question at the relevant point of time, the insurer is liable to reimburse the amount to the owner of the vehicle under the terms of the insurance policy. As held by the Supreme Court that the claim based upon the insurance policy is related to the 'Service' being covered by the provisions of section 14 of the Consumer Protection Act, 1986, the complaint by the owner of the vehicle in question, before the Consumer Forum was absolutely maintainable and the forum had the jurisdiction to entertain the same. Nothing has been argued on the merits of the case.
13. In all these views, the order passed by the State Consumer Disputes Redressal Forum, as above, does not suffer from any jurisdictional error. The same therefore, cannot be interfered with in this revisional application under Article 227 of the Constitution of India. Hence, the same is dismissed. All interim orders are vacated.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties, as expeditiously as possible.
14. Petition dismissed