Mohanlal Vs. National Insurance Company Ltd. and ors. - Court Judgment

Excerpt:
motor vehicles, act, 1939 - section 92a and 110a--insurance company not made party in claim petition--held, no appeal lies against insurance company--held further, case is remanded to try it again as insurance company is liable under section 92a.;when the respondent no. 1 the insurance company was not made party in the original claim under section 92a of the act, when no award has been passed against it, no appeal lies against the company. but as section 92a makes liable the insurer also, so in the interest of justice i feel that the order of the tribunal be set aside and the matter be remanded back to the tribunal after making the national insurance company as party to the claim and after giving opportunity to the insurance company to decide the claim afresh.;order accordingly - - before making the insurance company liable, the tribunal has to examine the question that the vehicle in question is involved in the accident and further it has, prima facie, come to the conclusion that the vehicle was insured, and if both those conditions are satisfied, then, without enquiring into the correctness or other objections that may be raised by the insurance company, can make the order for payment of interim compensation against the insurance company. 7. thus the intention of the legislation at the time of amending the motor vehicles act in the year 1982 is clear that interim relief is to be given to the claimant under section 92a and this can be awarded against the owner as well as the insurance company.g.k. sharma, j.1. mohanlal has preferred this appeal against the order of award dated 15-9-1984 passed by the motor accidents claims tribunal, banswara against him under section 92a, motor vehicles act (hereinafter mentioned as the act).2. an accident took place on 27-8-1983 by truck no. rjq 1187 near 'chhatris' of prithvi-vilas in banswara in which shri badri chand died. the claimants-respondents 3 to 8 filed their claim under section 110-a of the act for a sum of rs. 4,50,000/-. along with this claim the claimants also submitted a claim petition under section 92-a of the act for passing an award for a sum of rs. 15,000/- as the first mentioned compensation. the learned tribunal passed a claim of rs. 15,000/- against the appellant mohanlal on 15-9-1984. this order has been challenged in appeal.3. a preliminary objection has been raised by shri p. k. bhansali learned counsel for respondent 1 national insurance company to this effect that the insurance company was not party in the main claim under section 92-a of the act. without impleading the insurance company a party to the claim and without giving opportunity to hear the company no award could be passed against the insurance company. this company has been made respondent in this appeal and as the company was not a party in the original claim under section 92-a of the act the present appeal is not maintainable against the company. on this preliminary objection i have heard both the learned counsel at length.4. learned counsel for the appellant has mentioned that in the claim under section 92-a of the act, the appellant filed his reply. in that reply he has raised an objection that the vehicle was insured with the national insurance company and this company is a necessary party in this claim. even after raising this plea in the reply no application was moved on behalf of the claimants to implead the national insurance company as party in that claim. it seems that the court also did not give notice to the insurance company for impleading it a party in that claim. the result is that without disposing the objection raised by the appellant, the tribunal passed the order which has been challenged. the impugned question to be decided is whether the national insurance company is a necessary party in such claim and whether without impleading it a party in the original claim can he be made liable and responsible to pay some compensation at the appellate stage.5. section 92a and section 110a have been amended in the year 1982. prior to this amendment chapter vii-a of the act was not in the act. this chapter was newly added by the amendment in the year 1982. this chapter contains sections 92a to 92r under section 92a of the act liability to pay compensation in certain cases on principle of no fault has been provided. the intention of the legislation was that some immediate relief should be granted to the injured person. as the trial in claim cases takes time, so by amending this act the intention was that some immediate relief should be given to the injured. if death occurs on account of accident, the owner shall pay rs. 15,000/- to the claimants and if there is a permanent disablement on account of that accident, the owner shall pay a fixed sum of rs. 7500/- to the injured. this was the provision for giving immediate relief to the claimant. apart from this the claim was to be decided under section 110a of the act. while enacting section 110a by the amendment an application for compensation arising out of an accident may be made by the person to the claims tribunal having jurisdiction over the area in which the accident occurred. a proviso has been added which says that where any prayer for compensation under section 92a is made in such application the application shall contain a separate statement to that effect immediately before the signature of the applicant. section 110b is with regard to passing award by the tribunal. the tribunal shall determine the amount of compensation which appears to it to be just and satisfying the person or persons to whom compensation shall be paid and in making the award the 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. there is a proviso added to this section by amendment of 1982 and it says that where such application makes a claim for compensation under section 92a in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of chapter vii-a. thus it is clear from this legislation that a separate application under section 92a can be filed and a separate claim under section 110a can also be filed by the claimants. as mentioned above, to give expeditious relief section 92a has been enacted and according to this section on a principle of no fault, a compensation is to be granted to the claimant as first mentioned compensation. the point is that under section 92a only the owner is liable to make this compensation or the insurer is also liable. if the vehicle is insured and the insurer is liable to the extent to which the vehicle is insured. so the insurance company can also be saddled with the liability under section 92a of the act keeping in view the provisions of section 96 which says that it is the duty of the insurers to satisfy demands against persons insured. this matter has also been examined in the case of mahaveer prasad v. manmohan, (1986) 2 judicial surveyor 521. this is the decision of our high court where the question was whether the insurance company can be made liable for payment of the interim compensation under section 92a. in this case it has been observed as under : --'having regard to the provisions contained in sections 92a, 95, 96 and 110b, the insurance company is liable for specifying the compensation claimed, arising from the accident by the insured vehicles in accordance with the terms of section 95. in this view of the matter, to the extent of the policy, which covers the risk without enquiry as to whether the amount awarded is under section 92a of the act or is otherwise, the insurance company is liable to pay the amount awarded. the tribunal was not right in holding that in terms of section 92a of the act, the owner is only liable.before making the insurance company liable, the tribunal has to examine the question that the vehicle in question is involved in the accident and further it has, prima facie, come to the conclusion that the vehicle was insured, and if both those conditions are satisfied, then, without enquiring into the correctness or other objections that may be raised by the insurance company, can make the order for payment of interim compensation against the insurance company.'in narendra singh v. oriental fire and general insurance co. ltd., (1986) 4 judicial surveyor 67 : ( air 1987 raj 77), similar point was involved whether insurance company and owner both are liable to the compensation awarded under section 92a of the act. in this case it has been held 'the insurance policy was comprehensive one, but that apart, without adjudicating the nature of the policy and the liability which the insurance company has and finally which is dependent upon the various facts either way, both the owner and the insurance company should be liable jointly and severally, to pay the amount of compensation under section 92a.6. the case of oriental fire & general insurance co. ltd., goa v. aleixo fernandes, air 1986 bom 280 is also with regard to this very aspect and where a claim is under section 92a it has been held that the insurer is liable to pay pre-emptory compensation award under section 92a.7. thus the intention of the legislation at the time of amending the motor vehicles act in the year 1982 is clear that interim relief is to be given to the claimant under section 92a and this can be awarded against the owner as well as the insurance company. in the present case the owner has raised an objection before the tribunal that insurance company is necessary party and it should be impleaded as party. at that time the claimant should have requested the court to implead the insurance company as party in the claim and after hearing it the tribunal should have decided the matter. when it was brought to the notice of the tribunal that in a claim under section 92a the insurer is also liable to make pre-emptory compensation it was incumbent on the tribunal to implead the insurance company as party. the claimant have also not requested the court to make the insurer party in this claim. so without calling a party no order could be passed. the tribunal had passed award only against mohanlal, the appellant who is the owner of the vehicle. the insurance company, respondent 1 has not been made party and no award has been passed against it. in the appeal notice has been issued to respondent 1, insurance company and their objection that unless the company is party in the claim before the tribunal, no appeal lies against it and the appeal is not maintainable. this objection raised by shri bhansali has force and i agree with him. when respondent 1, the insurance company, was not made party in the original claim under section 92a of the act, when no award has been passed against it, no appeal lies against the company. but as section 92a makes liable the insurer also, so in the interest of justice i feel that the order of the tribunal be set aside and the matter be remanded back to the tribunal after making the national insurance company as party to the claim and after giving opportunity to the insurance company to decide the claim afresh. as there is objection raised by the owner before the tribunal the claimant should move an application before the tribunal to implead national insurance company as party to the claim and after giving notice to the company the matter be decided afresh.8. the award granted on 15-9-84 is set aside. on the preliminary objection raised by respondent 1, the case is remanded back to the motor accidents claims tribunal banswara for deciding the matter as directed above. it is directed that the tribunal shall dispose of this matter expeditiously.