1. Section 92A along with other fascicle of sections found place in Chapter VIIA of the Motor Vehicles Act, 1939, for short the Act, by virtue of the amending Act 47 of 1982. A reference to the Statement of Objects and Reasons of this amending Act shows that the amendment was regarded, inter alia, as a measure of social justice, in view of the fact that road accidents by motor vehicles had reached serious proportions and it was found that the victims of these accidents were generally pedestrians belonging to the loss affluent sections of the society. The liability under section 92A of the Act has been made indefeasible, peremptory and total. The amount mentioned by this section has to be paid without much ado as it is a piece of beneficial and ameliorative legislation providing for immediate aid to the hapless and helpless victims of accidents. The right to claim compensation under section 92A is without prejudice to the right to claim higher compensation on the basis of the wrongful act or negligence of the owner or driver of the vehicle. Section 92B/2) further requires that a claim under section 92A has to be disposed of as expeditiously as possible. To make the insurer also liable ii such cases, the amendment required that the owner of the vehicle will have to insure himself against liability to third party provided by section 92A to the same extent as he had insured against liability to a third party in cases where he is in default or negligent. This object is sought to be achieved, inter alia, by insertion of subsection (ba) in section 93 by the aforesaid amending Act.
2. There can be no doubt that because of the aforesaid amendments helpless widows and other dependants of victims of motor accidents look forward to get some immediate relief on the death or permanent disablement of their bread earner. The widow of the present case must have approached the Motor Accident Claims Tribunal with the same hope as her husband had died on 20.2.86 while he was travelling in a goods vehicle which was engaged by the employer of the deceased to carry some goods from Teklarjan to Barpeta. Along with the filing of the claim petition seeking compensation of Rs. 2 lakhs in all, the claimant praved for grant of compensation under section 92A also. This application was filed on 5.3.86 and by the impugned order passed on 19.7.87 the learned Member of the Tribunal has ordered to pay a sum of Rs. 15,000/and has made the same payable by the owner and the insurer jointly and severally. Feeling aggrieved, the insurer has preferred this appeal.
3. Shri Talukdar appearing for the appellant has very fairly conceded that though section 92A of the Act has stated that the owner of the vehicle shall be liable to pay compensation and has not spoken about the liability of the insurer in this regard, the latter would also be liable ; but then as per the learned counsel, the insurer cannot be made liable in these cases which are covered by the " proviso to section 95(1) (b) of the Act. As to the general liability of the insurer despite section 92A) having said about the owner of the vehicle, the fair concession of the learned counsel owes to the fact that different High Courts of the country including this Court has taken the aforesaid view in the decisions: Oriental Fire & General Insurance Company Limited v. Beasa Devi, AIR 1985 P & H 96 ; Oriental Fire and General Insaumnce Company Limited v. Aleixo Fernandez, AIR 1986 Bombay 280; Gatty Prabhakar v. Thummapalli Brahmania, AIR 1986 Andhra Pradesh 173 and Babban Tewari v. Usha Ranjan, 1987 (2) GLR 155.
4. Despite the above concession, Shri Talukdar submits that even while passing order under section 92A of the Act, the Motor Accident Claims Tribunal shall have to apply its mind to the question whether in view of the provisions contained, inter alia, in section 95 of the Act whether the insurer is at all liable to satisfy any award that may be passed against the insured, say, for the death of the concerned person. To put it differently, the submission of the learned counsel is that if by virtue of any provision contained, inter alia, in section 95 of the Act, the insuter could contend that it is not liable at all in terms of the policy, it could not be asked to meet the liability visualised by section 92A. It is strenuously urged by Shri Talukdar that as the present case is squarely covered by what has been stated in proviso (ii) to section 95 (1) of the Act because of which insurer would not be liable to pay the compensation to be determined by the Tribunal under section 110 of the Act, it may not be asked to pay the interim liabilty visualised by section 92A of the Act,
5. The aforesaid submission of the learned counsel requires examination of two questions. The first is whether at the stage of passing an order under section 92A, the defence available to an insurer have to be gone into; and secondly, whether the present can be said to be a case where the insurer is ex fads protected by the aforesaid proviso.
6. On the first question, it would be useful to note the views expressed by the different High Courts of the country including this Court in Babban Tewari (supra). This aspect of the case has been dealt with in para 13 of Babban''s case, wherein it has been observed as follows :
"Another contention has been raised that if insurer is made liable under section 92A, it shall be deprived to defend the proceeding by raising whatever defences which are available to them under section 96 of the Act. I am unable to accept this contention as the order passed by the Tribunal under section 92A of the Act is only a peremptory award. The Insurance Company can raise objections at the time of final hearing of the petition for compensation and section 110B empowers the Tribunal to pass an order directing the owner to indemnify the insurer in the event the insurer can establish any of the grounds in subsection (2) of section 96 of the Act."
In Beasa Devi, AIR 1985 P & H 96, the contention that a Tribunal is required to enquire into the befences available to an insurer under section 96 (2) of the Act before exercising power under section 92A was not accepted. The Division Bench stated as below in this connection :
"The moment it is either admitted by the owner of the vehicle that his vehicle was involved in the accident or from the evidence adduced on the 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 S. 92A 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."
In Aleixo Fernandez, AIR 1986 Bombay 280 also, the Court did not accept the above contention. It was observed in para II that the derence of the Insurance Company which, in that case was that the vehicle was being driven by a person who was not having valid driving licence, could be an issue in the main petition. This view was taken by pointing out that the object of section 92A was to make an immediate benefit available to the relations of victim and in construing such a piece of social welfare legislation, the courts should adopt a beneficent rule of construction which would fulfil the policy of the legislation. In Narendra Singh, v. Oriental Fire and General Insurance Company Limited, 1987 ACT 790 also the technical objections raised on behalf of the Insurance Company were not allowed to undo and crush the sprit of legislation for social justice.
7. Reference may also be made in this connection to Oriental Fire and General Insurance Company Limited v. Shantabai, AIR 1987 Bombay 52, wherein it has been stated in para 8 that if for any reason the Insurance Company is not liable to pay compensation under the terms of the insurance, it will be always open to it to get from the owner refund of the money paid to the victim or to his family. The contention on behalf of the Insurance Company that it was not liable in terms of the policy to satisfy the award made under section 92A of the Act was therefore not accepted. It has been observed in Beasa Devi (supra) that if it is ultimately found that the insurer is not liable to indemnify the insured, the Tribunal in its final award could direct the insured, by virtue of provisions in section 96 (4) of the Act, to reimburse the insurer the amount paid by it to the claimant pursuant � to the award made under section 92A.
8. I have duly considered the matter and the aforesaid views. The underlying idea behind section 92A being payment of prompt and immediate compensation, the same cannot be allowed to be frustrated to decide various defences to be raised by the Insurance Company, the disposal of which would naturally take time. This reading of section 92A would cause no real prejudice to the insurer as its interest can well be protected, in case it is ultimately found that it is not liable under the policy to indemnify the insured, by passing appropriate order under section 96 C4) of the Act as observed earlier. I would. therefore, hold that (at the stage of massing of the award under section 92A of the Act, the Claims Trihunel is not to apply its mind to the defences available to an Insurance Company under section 96 (2), or for that matter, whether the Comnany is protected by anything stated in the proviso to section 95 0) of the Ac�) In taking this view, I have also borne in mind section 92E, of the Act which has stated that the provision of ChanterVIIA shall have effect notwithstanding anything contained in any other provision of the Act or any other law for the time being in force.
9. As Shri Talukdar earnestly urged that the Insurance Company may not be asked to nay the awarded amount as the present case is squarely covered by proviso (ii) to section 95 (1) of the Act, I may deal with this point as well, though summarily. As the deceased was admittedly a passenger in a goods vehicle, learned counsel has contended that liability in respect of his death is not required to be covered by an insurance policy. This argument is founded by the proviso (ii) which we may read :
"95. Requirements of policies and limits of liability(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which
(a) ...... ......
(b) ......... ......
(i) ......
(H) ......
Provided that a policy shall not be required
(i). .....
(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 in respect 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)...........
10. It is urged that as the vehicle in question was not one in which passengers were carried for hire or reward, the insurer had no liability at all in respect of death of the husband of the claimant as he was a mere passenger in the vehicle. In support of this submission, learned counsel has referred to M. Kandaswamy v. Chennaswamy, 1985 ACJ 232 ; New India Assurance Company v. Surjit Kaur, 1985 ACJ 726 and Bandaiah v. Ningappa, 1985 ACJ. 746. It may be stated that the proviso has also excepted the case of a passenger who is carried by reason of or in pursuan e of a contract of employment. The deceased of the present case was an employee of the person whose goods were being carried in the truck. It can thus be said that he was travelling in the vehicle by reason of or in pursuance of contract of employment. The "contract of employment" of which reference has been made in this proviso cannot perhaps be confined to contract of employment with the owner of the vehicle, but may cover contract of employment with the owner of the goods as well. In this connection, I have noted a Full Bench decision of the High Court of Rajasthan in Shanta Bai v. Prahlad, 1985 ACJ 762; where in it was held that in case of passengers carried for hire or reward or by reason of or in pursuance of contract of employment in any vehicle, the Insurance Company is liable; and this would include the owner of the goods as well as his employees. Reference may also be made to Chenappa v. Laxman, AIR 1979 Karnataka 9", where in it was held that words "vehicle in which passengers are carried for hire or reward" used in the proviso would include goods vehicle carrying owner of the goods or his agent or servant as a passenger.
11. Shri Mahanta has also brought to my notice the decision in National Insurance Company Limited v. Laxm Devi, 1985 ACJ 48, in which it has been held that the insurer is liable in respect of claim relating to death of a person carried in truck along with the goods under contract of employment with owner of the goods. In so far as the decisions cited by Shri Talukdar is concerned, it may be pointed out that all of them have dealt with the liability of insurer qua a mere passenger with or without goods the affected person being neither owner of the goods to carry which the vehicle had been hired by the owner from the insured; nor servant, or agent of such owner, which aspect of the matter may make a difference in deciding the liability of the insurer in view of what had been held in the decisions noted above.
12. The above goes to show that the point raised by Shri Talukdar is debatable, and it cannot be said that [roe insurer is not exfacie liable in a case of the present nature. I have not deemed fit to say more than this, at the present stage, as, according to me, this question does not really call for any decision in the present proceeding in view of what has been stated above about the nonrequirement of examination of defence etc of the insurer while ordering to pay compensation visualised by section 92 A of the Act. Despite the aforesaid view, 1 have summarily examined the question of liability of the insurer as Shri Talukdar strenuously urged that an institution like the appellant may not be asked to spend public money in meeting a liability which cannot at all be fastened on it. May I stated before concluding that as I have not expressed any final opinion on this aspect of the case, it would be open to the learned Tribunal to come to such conclusion in this regard as would be deemed legal by it.
13. For the reasons aforesaid, the (appeal cannot be entertained and is dismissed. The appellant is directed to pay the entire of Rs, 15,000/to the claimant within a period of one month from today. In case the appellant would fail to do so, the amount would carry interest @ 12% per annum from the date of passing of the impugned order until payment is made.
Sd/
Judge.
