Pradip Kumar Savasoria vs Srimati Katarina Marak and Others

S. Haque, J.—The learned Member, Motor Accident Claim Tribunal, Shillong directed the appellant by order dated 26-8-1985, in Misc. Case No. 32 of 1985 (M.A.C. Case No. 85/1985), to pay the interim relief of Rs. 15,000.00 u/s 92-A of the Motor Vehicle Act. Hence this appeal by the appellant, owner of the Truck No. ASO 3511 which caused the accident resulting death of Shrimati Ajona Marak.

The ground for appeal is that the vehicle was insured with the respondent No. 3, the Oriental Fire and General Insurance Company Ltd. at the relevant time of accident and so, the respondent No. 3 was liable to pay the interim relief u/s 92-A of the Motor Vehicle Act.

Learned Counsel Dr. M.K. Sarma for the appellant submits that there was a valid and subsisting insurance policy of Truck No. ASG 3511 at the time of accident with the Respondent No. 3 and so the insurer was liable to pay the interim compensation u/s 92-A read with Section 110B of the Motor Vehicle Act and not the owner of the vehicle. Dr. Sarma refers to several decisions, namely (i) Mohammad lqbal Vs. Bhimaiah and Others, (ii) Gattu Prabhakar and Another Vs. Thummanapalli Brahmaiah and Others, (iii) Oriental Fire and General Insurance Co. Ltd. Goa Vs. Aleixo Fernandes and others, in support of his submissions.

The policy certificate in question of the vehicle Truck No. ASG 3511 has been produced before this Court and perused. The policy certificate discloses that the vehicle of appellant Sri Pradip Kumar Savasaria was insured on 13-2-1984 for one year ending on 12-2-1985 with the Respondent No. 3. The accident occurred on 22-3-1984. Thus, on the date of accident, the insurance policy was current in the name of the owner of the vehicle No. ASG 3511. These facts have not been disputed by the learned Counsel Mr. D. Das for the respondent No. 3. Mr. Das also does not controvert the submissions of Dr. Sarma with regard to provisions of law in the matter of interim compensation u/s 92-A of the Motor Vehicle Act in the decisions referred.

It was held in the decision of Mohammad lqbal Vs. Bhimaiah and Others, that in view of the Amended Section 110B of the Motor Vehicle Act the liability to pay interim compensation u/s 92-A can be saddled with the Insurance Company where the policy of insurance is found current on the date of accident.

It was held in Gattu Prabhakar and Another Vs. Thummanapalli Brahmaiah and Others, that the liability of the owner of a vehicle involved in accident under Sections 95 and 92-A of the Motor Vehicle Act are similar only with a difference with regard to the later provision is of a speedy summary inquiry in which the fault of any person is not relevant but only confines to identification of the victim and the vehicle in the accident. It is not possible to hold that Section 92-A or any other provision excludes the liability cast on the Insurance Company by the clear language of Section 95(1)(b) read with Section 95(2). If the Insurance Company is not held liable u/s 92-A, then how it could be practicable u/s 92-B(3) for taking into consideration of the amount paid under Chapter VII-A at the time of final award u/s 110-A; because, the Tribunal shall have to exclude the liability to the extent of the sum paid u/s 92-A. Exclusion of the liability of Insurance Company u/s 92-A will not only be inconsistant with the statutory provision but would reduce the liability of the Insurance Company with respect to the amount awarded u/s 92-A if the owner is made liable inspite of the fact that an Insurance Policy was very much alive at the relevant point of time.

It was held in Oriental Fire and General Insurance Co. Ltd. Goa Vs. Aleixo Fernandes and others, that mere omission of the word ''Insurer'' in Section 92-A cannot exclude insurer from the liability under this section as the vehicle involved in the accident was duly covered by the certificate of Insurance guaranteed by the insurer. From combined reading of Section 92-A with Sub-section 5 of Section 95 and Section 96 of the Motor Vehicle Act it is clear that the insurer is to indemnify a person who is covered under a Policy and if he is required to satisfy a judgment made against such person even pay directly the third party (claimant), it cannot, therefore, be said that the insurer is or can be excluded from the liability to pay the interim compensation u/s 92-A. Although, this section casts liability on the owner of the vehicle, but by virtue of the cover of insurance, the insurer is bound to pay the peremptory compensation where the Insurance Policy was alive at the time of accident. It is, therefore, clear that mention of ''Insurer'' in Section 92-A is not necessary.

The above decisions make the law clear on this point. The fact of the instant case, for the purpose of interim compensation u/s 92-A, deserve disposal in the light of these decisions.

In the matter of implementation and direction u/s 92-A of the Motor Vehicle Act for an interim compensation, the Insurance Company can be made liable for such compensation instead the owner, where the policy of insurance in respect of the involved vehicle is found current on the date of accident. Mere absence of the word ''Insurer'' in the Section 92-A does not necessarily exclude insurer from the liability of the award of this section. Only test necessary for consideration is whether the policy of insurance of the involved vehicle was alive at the time of accident. The result in affirmative makes the insurer liable for the statutory interim award u/s 92-A. Complicacy would arise, if the insurer is excluded from liability of the award u/s 92-A when the policy was alive at the time of accident. In such a case, to avoid complicacy the Tribunal shall fix liability with the Insurer. For the purpose of this case, the respondent No. 3 Oriental Fire and General Insurance Company Limited is liable to pay the interim compensation of Rs. 15,000/- u/s 92-A.

This appeal is allowed. The impugned order dated 26-8-1985 fixing the liability on the owner and directing him to pay Rs. 15,000/- are hereby set aside. Now the respondent No. 3 Oriental Fire and General Insurance Company Limited, Gauhati, Assam is directed to pay the compensation of Rs. 15,000/- to the claimant Srimati Katarina Marak, at the first instance, u/s 92-A of the Motor Vehicle Act. The amount should be paid within four (4) months.

Send down the case records to the Court of Member, Motor Accident Claim Tribunal, Shillong for disposal of the M.A.C. Case No. 85 of 1985 expeditiously in accordance with law.