New India Assurance Co. Ltd. Vs. Minguel Correia and ors. - Court Judgment

G.F. Couto, J.

1. The above two appeals arise out of the order dated 15th March, 1984, made by the learned Presiding Officer of the Motor Accident Claims Tribunal, Margao, whereby he reviewed his earlier order dated 22nd December, 1983.

2. A few facts may be stated. Respondent No. 1, Minguel Correia, filed an application for compensation under section 110 of the Motor Vehicles Act, 1939 (for short 'the Act') as well as another application under section 92-A of the Act on the ground that on 15th April, 1983, at about 1.30 a.m., respondent No. 2 Mariane Fernandes, drove a truck bearing registration No. GDT. 6967 in a rash and negligent manner and thereby dashed against a road side jackfruit tree and rammed into a liquor shop existing on the spot. As a result of this accident, one Menino Correia, son of the applicant Minguel Correia, came to die. A compensation of Rs. 2,95,760/- was claimed on account of this accident and consequent death of the said Menino Correia. Along with the said application for compensation under section 110 of the Act the said Minguel Correia also filed an application under section 92-A of the Act. This application was resisted by the appellant Insurance Company, its case being that the Insurance Company is not liable to pay any compensation in respect of the accident occurred on 15th April, 1983, as there was a breach of specific conditions of the insurance policy inasmuch as the vehicle was being driven, at the relevant time of the accident, by a person who was not in the employment of the owner of the vehicle and such person was not driving the vehicle on his orders or with his permission. In addition, the stand taken by the Insurance Company was that the deceased was travelling in the vehicle involved in the accident as a voluntary gratuitous passenger which was a commercial vehicle used for carrying goods, and as such, there was no cover for passengers carrying in it. The learned Presiding Officer of the Claims Tribunal, Margao, by his order dated 22nd December, 1983, upheld the view taken by the appellant Insurance Company and, accordingly dismissed the application insofar as the latter was concerned. A review application was filed by the owner of the vehicle against the said order and the learned Presiding Officer of the Claims Tribunal was pleased to review his earlier order by allowing the application to direct the payment of interim compensation by the appellant.

3. Mr. S.K. Kakodkar, the learned Counsel appearing for the appellant, challenges the validity of the impugned order mainly on two grounds. He first contended that no power to review its earlier decision is vested in the Tribunal and therefore, on this count alone the impugned order is void and liable to be set aside. Secondly, he contended that the scope of section 92-A of the Act is larger than the one given to it by the learned Presiding Officer of the Claims Tribunal. He submitted that under section 92-A, it is open to the Insurance Company to show that the accident is not covered by the insurance policy and, therefore, there is no liability of the Insurance Company under section 92-A of the Act.

4. As regards the first contention, the learned Counsel submitted that there is no provision for review in the Act and the power of review has to be expressly conferred and not by any kind of implication. In this connection, reliance was placed on the decisions of the Supreme Court in P.N. Thakershi v. Pradyuamansinghji, : AIR1970SC1273 and Northern India Caterers v. Lt. Governor, Delhi, : [1980]2SCR650 . It was, however, contended by the learned Counsel appearing for the respondents that power of review is vested in the Motor Accident Claims Tribunal by virtue of Rule 6 of the Goa, Daman and Diu Motor Accident Claims Tribunal Rules, 1966 and further that the authority of the Supreme Court in Thakershi's case instead of advancing the case of the appellant runs counter. In fact, the Supreme Court has held the view that no powers of review are vested only in cases where there is no express or implied power of review. Elaborating the first part of the argument, Mr. M.P. Almoida, the learned Counsel appearing for respondents 2 & 3, invited my attention to section 111-A of the Act, which deals with the power of the State Government under the Act. He submitted that, under the said provisions of the Act, a State Government may make rules for the purpose of carrying into effect the provisions of sections 110 to 110-E, and in particular, such rules may provide for all or any of the matters mentioned therein, namely, to enable a Claims Tribunal to exercise the powers vested in a Civil Court. The Government of Goa, Daman & Diu, in exercise of such powers, has enacted the Goa, Daman and Diu Motor Accident Claims Tribunal Rules, 1966 and in Rule 6 thereof, it has been provided that the Claims Tribunal may exercise all the powers of Civil Court save insofar as the same are not inconsistent with the provisions of the Motor Vehicles Act, 1939 and rules framed there under. Therefore, in view of the aforesaid provisions of section 111-A(c) of the Act and Rule 6, it is clear, according to the learned Counsel, that power of review is vested in the Claims Tribunal. Insofar, as the second limb of the argument, Mr. Coelho Pereira, the learned Counsel appearing for the first respondent, submitted that the ruling of the Supreme Court in Thakershi's case has to be read in the context of the observations made, namely, that in the Saurashtra Land Reforms Act, there is no provision from which the power of the State Government to review its own order under section 63 can be gathered. Therefore, the Court observed that it is well settled that the power to review is not an inherent power and that it must be conferred by law either specifically or by necessary implication. In these circumstances, accordingly to the learned Counsel, this authority of the Supreme Court far from advancing the case of the appellant, helps the respondents, for in the context of the provisions of section 111-A(c) of the Act and Rule 6 of the said Rules, a power of review has been granted.

5. In the light of the above rival contentions, it will be useful to advert to the aforesaid authorities of the Supreme Court. In Thakershi's case, Their Lordships of the Supreme Court held that the power to review is not an inherent power and that it must be conferred by law either specifically or by necessary implication. In that case, the question as to whether a particular officer had competence to quash an order made by the Saurashtra Government fell for determination. The said officer was functioning as a delegate of; the State Government and the order made by him amounted in law to a review of the order made by the Saurashtra Government. The Supreme Court observed that it is well settled that the power to review is not an inherent power and that it must be conferred by law either specifically or by necessary implication. The Court further observed that in that particular case, no provision in the Act has been brought to the notice of the Court from which it could be gathered that the Government had power to review its own order and, therefore, if the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.

6. In Northern India Caterers, the Supreme Court observed that the normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of the substantial and compelling character make it necessary to do so. The Court further observed that power to review its judgment has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the Rules made under Article 154.

7. On a careful consideration of the above authorities, I am of the opinion that the decision of the Supreme Court in Northern India Caterers is not of any help for the purposes of determining as to whether or not the power of review has to be expressly conferred. In fact the said authority deals with the problem as to when powers of review are to be exercised. However, the authority in Thakershi's case is more to the point. Their Lordships had made it clear that the power of review can be said to have been conferred in an authority or Court if there is an express provision thereof or such power has to be read by necessary implication. Now, applying these observations to the case before me, I am bound to hold that powers of review have been vested in the Motor Accident Claims Tribunal. In fact, section 111-A empowers the State Government to make Rules for the purpose of carrying into effect the provisions of sections 110 to 110-E of the Act, and in particular, to make rules enabling the Claims Tribunal to exercise the powers vested in a Civil Court. In exercise of such powers, the Government of Goa, Daman and Diu enacted the Goa, Daman and Diu Motor Accident Claims Tribunal Rules, 1966. Rules 6 specifically provides that the Claims Tribunal may exercise all the powers of a Civil Court save insofar as the same are not inconsistent with the provisions of the Motor Vehicles Act, 1939 and Rules framed there under. Rule 6 vests in the Claims Tribunal all the powers of a Civil Court which are not inconsistent with the provisions of the Motor Vehicles Act and the Rules framed there under. The power of review is by no stretch of imagination inconsistent with the provisions of the Act and the Rules framed there under. Thus, it has to be held that the Act read with the Rules by necessary implication vests the power of review in the Claims Tribunal.

8. I may now turn to the second submission of Mr. Kadodkar. According to him, the Motor Claims Tribunal Rules restrict the scope of section 92-A of the Act. He invited my attention to the aforesaid provisions of section 92-A as well as 92-B(2) of the Act. He submitted that under the aforesaid provisions of the Act, the only guidance laid down is that an application under section 92-A of the Act has to be disposed of expeditiously. He further contended that under the Goa, Daman and Diu Motor Accident Claims Tribunal Rules, particularly Rule 18 as it stands after the amendment thereof, it has been provided that in case of a claim under Chapter VII-A of the Act, the Claims Tribunal shall proceed to award the claim on the basis of Registration Certificate of the Motor vehicle involved in the accident. Insurance Certificate of policy relating to the insurance of the vehicle against Third Party Risks, copy of the first information report post-mortem certificate or certificates of injury from the Medical Officer, and the nature of the treatment given by the Medical Officer who has examined the victim. The learned Counsel submitted that this provision restricts the scope of section 92-A, for under section 92-B the only guidance put by the legislature is that an application under section 92-A should be disposed of expeditiously. The learned Counsel further submitted that the second proviso to Rule 18 lays down that the Claims Tribunal shall follow the procedure of summary trial as contained in the Code of Criminal Procedure for the purpose of adjudicating and awarding a claim under section 92-A. Therefore, the Insurance Company must necessarily have the right to put up all defences that are available to it to show that there is no liability on its part. He also submitted that the decisions of the Punjab and Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, 1985 A.C.J. 1 and of the Karnataka High Court in Mohamed Iqbal v. Bhimaiah, 1985 A.C.J. 546 are not good law. Then, the learned Counsel invited my attention to the impugned order and submitted that the learned Judge has not addressed himself to the question as to whether there was any breach of the insurance policy and has wrongly relegated the appreciation of such question at the stage of passing of the final order. He contended that in view of the provisions of section 92-B of the Act of Rule 18 of the Motor Accident Claims Tribunal Rules, it was incumbent upon the Tribunal to determine the application under section 92-A in all aspects and not to relegate a relevant part thereof for decision along with the application under section 110 of the Act. I am afraid that the above submissions of the learned Counsel are not well founded. Section 92-A of the Act is a beneficial legislation and provides for liability to pay compensation in certain cases on the principle of no fault. This being the case, it is obvious that the inquiry that has to be held should be necessarily very limited in its nature and scope. Sub-section (1) of section 92-A provides that 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 the said section. Sub-section (2) lays down that 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. Then, section 94 of the Act provides for necessity for insurance against third party risk and lays down that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of the Chapter. Now, if section 92-A provides for liability to pay compensation on the principle of no fault and if under sub-section (3) the claimant shall not be required to lead 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, it does appear that the requirements under the said section are only whether; (a) a vehicle has been involved in an accident; (b) a person died or sustained permanent disablement as a result of such accident; and (c) with whom the vehicle was insured. This is so because irrespective of any fault, the legal representatives of the dead person or the person who had suffered a permanent disablement are to be given a quick and effective temporary relief. Now, the proviso added to Rule 18 by the amendment reads as under:-

'Provided that in the case of a claim under Chapter VII-A of the Act, the Claims Tribunal shall proceed to award the claim on the basis of :-

(i) Registration Certificate of the motor vehicle involved in the accident;

(ii) Insurance Certificate of policy relating to the insurance of the vehicle against Third Party Risks;

(iii) Copy of the first information report;

(iv) Post-mortem certificate or certificates of injury from the Medical Officer;

(v) The nature of the treatment given by the Medical Officer who has examined the victim;

Provided further that the Claims Tribunal shall follow the procedure of summary trial as contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), for the purpose of adjudicating and awarding a claim under Chapter VII-A of the Act:

Provided further that the Claims Tribunal shall dispose of an application made under Chapter VII-A of the Act within 45 days from the date of receipt of such application;

Provided further that the procedure of adjudicating the liability and award of compensation may be set apart from the procedure of disbursement of compensation to the legal heirs in case of death. Where the Claims Tribunal feels that the actual payment to the claimant is likely to take time because of the identification and the fixation of the legal heirs of the deceased, the Claims Tribunal may call for the amount of compensation awarded to be deposited with the Tribunal and then proceed with the identification of the legal heirs for deciding the payment of compensation to each of the legal heirs.'

Even a cursory reading of the above provisos is sufficient to show that the said provisos are well within the scope and nature of the inquiry that is required to be held to pay a compensation under section 92-A of the Act. In fact, the material points to be considered are clearly to establish first that an accident occurred, second that a motor vehicle was involved in the accident, third that the said vehicle is duly insured and fourth that a death or a permanent disablement took place, as a result of the accident. To say that by this rule the scope of section 92-A was restricted is not thus correct.

9. Mr. Kakodkar, relying on the second proviso to the amended Rule 18, contended that the procedure for a summary trial as provided in the Cri.P.C. has to be followed, and as such, the Insurance Company is entitled not only to cross-examine the witnesses examined by the applicant but also to lead independent evidence in order to establish that it is not liable to pay any compensation. The learned Counsel is quite right, in the above submission that the Insurance Company is undoubtedly entitled to cross-examine any witness examined by the applicant and also to lead independent evidence. To hold otherwise would amount to go against the rules of natural justice. But the question that is relevant to be considered is the scope and nature of the inquiry and so, the right to cross-examine and lead evidence has necessarily to be limited and bounded by the nature and scope of the inquiry. As I have already said, the scope and nature of the inquiry is very limited and the question as to whether or not the Insurance Company is liable to pay compensation for different reasons is to be dealt with and decided in the course of the hearing of the main application for compensation under section 110 of the Act. I am supported in this view by the decision of the Punjab & Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, as well as by the decision of the Karnataka High Court in Mohammad Iqbal v. Bhimaiah. In Beasa Devi's case, the Punjab & Haryana High Court has observed as under:-

'Now the question that falls for consideration is as to at what stage the Tribunal is to inquire into the objections available to the insurance company, under section 96 (2) of the Act. Should such objections be treated as preliminary issue and be decided by the nature of things would result in delay in regard to the payment of amount under section 92-A to the claimants, which may partly defeat the very purpose underlying the enactment of the said provision i.e., of providing immediate scour to the persons who had suffered disabling injury in an accident or the heirs of the persons who had died as a result of the accident. We are of the view that provision of section 92-A is a piece of beneficial and ameliorative legislation providing for an immediate aid to the hopeless and helpless victims of the Motor accidents. The moment it is either admitted by the owner of the vehicle that his vehicle involved in the accident or from the evidence adduced on record the Tribunal positively holds that vehicle of the owner in question was involved in that accident, if he denied that fact and then if the Tribunal comes to a further prima facie conclusion that the vehicle was insured, then the Tribunal without inquiring into correctness of other objections that may be raised by the insurance company would be entitled to make the award under section 92-A and require the insurance company to pay the given amount to the claimants forthwith and thereafter investigate and inquire into the correctness or otherwise of the other objections that are raised either by the insurance company or by the owner of the offending vehicle.'

It was further observed that in the event of the Tribunal coming to the conclusion for valid reasons that the owner of the vehicle was not liable to pay any compensation on the principle of the fault liability, then obviously, no compensation is to be awarded on that score to the claimants under section 110-B and that similarly, in the event of the Tribunal holding that the insurance company has proved such objections as under law avoided its responsibility to indemnify the owner of the offending vehicle totally, then, the Tribunal in the final award by virtue of provisions of sub-section (4) of section 96 would direct the owner of the offending vehicle to pay to the insurance company the amount which the insurance company had paid to the claimants in pursuance of the award made under section 92-A of the Act. The same view was taken by the Karnataka High Court in Mohammad Iqbal's case. In fact, it was observed that the scope of inquiry is undoubtedly, as contemplated in section 92-A of the Act, namely, to see whether the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle. Therefore, the Karnataka High Court held the view that the only questions to be looked into in an application under section 92-A of the Act are whether a motor vehicle was involved in an accident and whether as a result thereof a death or disablement had been caused. These authorities, as I have already said, support the view taken by me. I may only add that in addition to the reasons given in the aforesaid authorities of the Punjab & Haryana High Court and Karnataka High Court, in our case, there is a specific rule which delimitates the area of the inquiry to be held.

10. This does not mean, however, that it is not open to the Insurance Company to raise any or all the defences which are available to it under the Act, particularly that under the terms and conditions of the insurance policy, the insurance company is not liable to pay any compensation. But this aspect of the case is to be dealt with in the course of the proceedings for compensation under section 110 of the Act. Thus, if ultimately the company succeeds in establishing that under the terms and conditions of the insurance policy, it is not liable to pay compensation, then, the insurance company will be entitled to get money paid under section 92-A of the Act repaid to it by the owner of the vehicle. A direction to this effect has necessarily to be made by the Tribunal itself while disposing of the application under section 110 of the Act, so as to avoid the insurance company to be dragged in further litigation.

11. In the result, these appeals fail and are consequently dismissed with costs.

Appeals dismissed.