Smt. Kailash Kumari and Others vs Bhola and Others

M.S. Liberhan, J.—The claimants have applied u/s 92A of the Motor Vehicles Act, 1939, for directing respondent No. 5 to pay the sum of Rs. 15,000 along with interest at the rate of 12 per cent. per annum during the pendency of the appeal.

Counsel for respondent No. 5 opposes the prayer and contends that the insurance company having been absolved in the impugned judgment on the ground that the passenger was a gratuitous person, the company was not liable to make the payment u/s 92 A of the Act.

The factum of the vehicle being insured with the respondent-company and the cause of accident being the negligence of the driver are undisputed. It is stated that a similar application was moved before the Tribunal but somehow or other no order was passed on the said application.

Learned counsel for the applicants cited Oriental Fire and General Insurance Co. Ltd. v. Smt. Beasa Devi [1986] 59 Comp Cas 643 (P & H), wherein it has observed that (at page 652) :

"The insurance company can be saddled with the liability u/s 92A as insurer, keeping in view the provisions of Section 96, only if either the insurance company admits the fact that the offending vehicle had been insured or such a fact is prima facie established from the material on the record.

Now, the question that falls for consideration is at what stage the Tribunal is to inquire into the objections available to the insurance company u/s 96(2) of the Act. Should such objections be treated as preliminary issue and be decided by the Tribunal in the first instance which in the nature of things would result in delay in regard to the payment of amount u/s 92A to the claimants, which may partly defeat the very purpose underlying the enactment of the said provision, i.e., of providing immediate succour 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 the provision of Section 92A is a piece of beneficial and ameliorative legislation providing for immediate aid to the hapless and helpless victims of motor accidents. 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 the 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 the correctness of other objections that may be raised by the insurance company would be entitled to make the award u/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 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 u/s 110B. Similarly, in the event of the Tribunal holding that the insurance company had 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 the 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 u/s 92A of the Act."

The appeal is a rehearing of the claim. Learned counsel further cited Basant Rani and Others Vs. Ram Singh and Others, . The said judgment squarely covers the facts and circumstances of the present case.

There are neither any provisions barring the application u/s 92A in appeal nor is there any precedent. In Krishan Lal v. Phool Singh (F. A. O. 621 of 1985, decided on 12th September, 1985), the application u/s 92A was somehow not decided by the Tribunal. However, the High Court in appeal, on application u/s 92A, granted the compensation of Rs. 15,000.

For the reasons given above, I allow this application and direct the respondent-insurance company to pay the applicants Rs. 15,000 as compensation u/s 92A of the Act, with interest at the rate of 12 per cent. per annum from the date of application to the date of payment. The payment should be made within thirty days from today. The respondent-insurance company shall pay the applicants the costs of this application. Counsel''s fee Rs. 500.