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1997 DIGILAW 188 (ORI)

Divisional Manager, National Insurance Co. Ltd. , Cantonment Road, Cuttack v. Samjida Khatun

1997-07-30

P.C.NAIK

body1997
JUDGMENT P. C. NAIK, J. — An award under Section 140 of the Motor Vehicles Act, 1988 having been passed against it, the insure has filed this appeal. 2. Mohammed Khorsid was killed in a road accident on 5.3.1995. His parents filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short, ‘the Act’) claiming compensation from the owner and the insurer of the offending vehicle. They also filed an application under Section 140 ibid claiming Rs. 50,000/- on the basis of no-fault liability. 3. The owner resisted the claim and submitted that as the accident was not due to any rashness or negligence of the driver, he was not liable. Alternatively, he pleaded that in case he is held liable, the liability be saddled on the opposite party No.2 with whom the offending vehicle was insured. The Insurance Compa¬ny denied its liability by denying insurance. It further submit¬ted that in any case, as the driver of the offending vehicle did not possess a valid driving licence on the date of the accident, there was a breach of the policy conditions and hence it could not be made liable. 4. The claimant No.1, Amamul Haque examined himself as P.W.1 and also filed copy of F.I.R., post-mortem report and the seizure list which disclose the number of the driving licence that was seized from the driver of the offending vehicle. No evidence in rebuttal was adduced by the apposite parties. 5. On a consideration of the material on record, the Tribu¬nal held that Mohammed Khorsid died as a result of injuries sustained in a road accident and accordingly awarded Rs. 50,000/- as interim compensation to the claimants/parents. This award is impugned in this appeal. 6. The contention of Mr. Sinha, learned counsel for the appellant-insurer, is that in view of the plea of the insurer that the driver did not hold a valid driving licence and the claimants having failed to establish that he did, liability could not be fastened on the insurer. Alternatively, placing reliance on the decisions reported in 1994 (1) T.A.C. 449 (Orissa), Divisional Manger, United India Insurance Company Ltd. v. Somani Ghosh and others and 1995 (1) T.A.C. 663 (Orissa), United India Insurance Co. Alternatively, placing reliance on the decisions reported in 1994 (1) T.A.C. 449 (Orissa), Divisional Manger, United India Insurance Company Ltd. v. Somani Ghosh and others and 1995 (1) T.A.C. 663 (Orissa), United India Insurance Co. Ltd. represented by Divisional Manager, Bhubaneswar v. Kama¬lalochan Kamrao and others, it is submitted that the Tribunal erred in passing the interim award without giving the insurer an opportunity to substantiate its plea. At any rate, submits Mr. Sinha, in view of the decision reported in 1997 (2) T.A.C. 96 (Orissa) New Indian Assurance, represented through Divisional Manager, Bhubaneswar, Khurda Division v. Radha Bewa and others, the Tribunal erred in granting interest on the sum awarded under no-fault liability. 7. On the other hand, it is submitted by the learned counsel for the claimants/respondents 1 and 2 that no case for interfer¬ence is made out because the award is under no-fault liability in which full trial is not contemplated. At any rate, submits the learned counsel as the insurer did not adduce any evidence to establish, even to make out a prima facie case that driver was not licensed, the Tribunal was justified in passing the impugned award and awarding interest thereon. 8. In the case reported in 1994(1) T.A.C.449 (supra), the Tribunal had allowed the application under Section 140 without considering the question of delay in filing the claim petition and, on a day which was fixed for settlement of issues. The record did not indicate that the insurer was heard before the or¬der in question was passed. It was under these circumstances, this Court observed that the basic requirements of the principles of natural justice had not been followed. It was also observed that before fastening the liability, it was the duty of the Tribunal to ascertain as to whether the insurer had the liability to indemnify the owner or not. Further, the Court observed that the inquiry contemplated under Section 140 of the Act should not be an elaborate one and has to be one of summary nature. 9. In the case reported in 1995(1) T.A.C. 663 (supra) it was an admitted position that the deceased along with some twenty-five to thirty persons was travelling as a passenger in a goods vehicle. The owner neither appeared nor adduced any evidence to show that he had obtained a policy covering risk of passengers travelling in a goods vehicle. 9. In the case reported in 1995(1) T.A.C. 663 (supra) it was an admitted position that the deceased along with some twenty-five to thirty persons was travelling as a passenger in a goods vehicle. The owner neither appeared nor adduced any evidence to show that he had obtained a policy covering risk of passengers travelling in a goods vehicle. The basic plea of the insurer was that as the risk of passengers in a goods vehicle is neither covered nor required to be covered under the Motor Vehicles Act, 1939, no liability could be fastened on it. Without considering this aspect, the Tribunal had proceeded to pass an award in favour of the claimants under Section 92-A of the 1939 Act. In these circumstances, it was observed that the Tribunal fell in error in not considering the plea of the insurer that it was not liable. It was further observed that the liability of the insurer is required to be ascertained or fixed with reference to the insurance policy and that it was wrong to say that the liability is to be fixed without any reference thereto. 10. At this stage, a reference may be made to Chapter III of the Orissa Motor Vehicles (Accident Claims Tribunal) Rules, 1960 which was inserted in the said rules by S.R.O.No.189/85 dated 10.4.1985 which relates to claims under Chapter VII-A of the 1939 Act, i.e. no-fault liability. Some relevant rules of Chapter III of the aforesaid rules are quoted hereunder : “24. Application for claim :- Every application in the case of a claim without fault under Chapter VII-A of the Act shall be made in Form CWF. 25. Fees :- Every application for a claim under Chapter VII-A shall be accompanied by a fee of ten rupees in the form of court-fee stamp. 26. Application not to be rejected on technical flaw :- The Claims Tribunal shall not reject any application made as per the provisions of Chapter VII-A of the Act on the ground of any technicalflaws, but shall given notice to the applicant and get the defect rectified. 27. Notice to owner and Insurer :- (1) The Claims Tribunal shall give notice to the owner and the Insurer, if any of the motor vehicle involved in the accident, directing them to appear on a date not later than ten days from the date of issue of notice. 27. Notice to owner and Insurer :- (1) The Claims Tribunal shall give notice to the owner and the Insurer, if any of the motor vehicle involved in the accident, directing them to appear on a date not later than ten days from the date of issue of notice. The date fixed for such appearance shall also be not later than fifteen days from the receipt of the claim applica¬tion. (2) The notice under Sub-rule (1) shall state that in case the owner or the insurer, if any, fails to appear on the date appointed, the Tribunal will proceed ex parte on the presumption that they have no contention to make against the award of compen¬sation. 28. Manner of adjudication claims :- The Claims Tribunal shall, for the purpose of adjudicating and awarding a claim under Chapter VII-A of the Act, follow the procedure of summary trial contained in the Code of Criminal Procedure, 1973. 29. Award of claim :- The Claims Tribunal shall obtain whatever information is necessary from the Police, Medical and other authorities and proceed to award the claim whether the parties who were given notice, appear or not, on the appointed date. 30. Basis to award the claim :- The Claims Tribunal shall proceed to award the claim on the basis of - (i) oral evidence; (ii) certified copy of the Register of Motor Vehicles registered in the district and/or registration certificates of the Motor Vehicles involved in the accident; (iii) insurance certificate or policy relating to the insur¬ance of the Motor Vehicle against the Third Party risk; (iv) copy of First Information Report; (v) post mortem certificate or certificate of injury from the Medical Officer; (vi) the nature of the treatment given by the Medical Officer who has examined the victim; and (vii) bed Head Ticket and/or discharge certificate of the hospital or dispensary where the injured /the deceased received treatment.” Thus, the above mentioned rules clearly indicate that an inquiry-summary in nature was required to be made before passing an award under no-fault liability. Thus, passing of an award under the no-fault liability is not mechanical and that, if material is placed on record for denying the liability, and a bald statement by the insurer in its reply that it is not liable under the policy is not enough, a summary inquiry is to be made. Thus, passing of an award under the no-fault liability is not mechanical and that, if material is placed on record for denying the liability, and a bald statement by the insurer in its reply that it is not liable under the policy is not enough, a summary inquiry is to be made. But, it was never intended that the adjudication should be like a trial as that would frustrate the intention of the legislature and the statute which is to give quick relief to the victims of the road accidents or their dependants, as the case may be. 11. In the instant case, there is nothing on record, except a bald statement in the written statement of the insurer, that the driver of the offending vehicle did not possess a valid driving licence and as such, it should be absolved of the liabil¬ity. Thus, it is not a plea which can be adjudicated upon in a summary manner as it requires going into a detailed inquiry and necessary evidence will have to be adduced by the insurer. There¬fore, it is not a case like the one where the liability could be ascertained by a perusal of the statutory provisions and the insurance policy that is on record. Thus, the observations that the parties concerned should be noticed and heard and that a summary inquiry is necessary have to be appreciated in the con¬text in which they were made. As observed earlier, the observa¬tion were never intended to convey that a detailed inquiry into all factual aspects is necessary at the stage of consideration of a claim under no-fault liability. 12. In the aforesaid view of the matter, there was no error committed by the Tribunal in holding the insurer liable as the vehicle in question was insured. However, as the relief under Section 140 of the Motor Vehicles Act, 1988 is of an interim nature, the insurer will be at liberty to raise the plea, that as the driver did not have a valid driving licence it is not liable, in the main claim petition which is pending. 13. Accordingly, while affirming the award under no-fault liability, the direction regarding payment of interest on the said amount is, in view of the decisions referred to above, set aside. 13. Accordingly, while affirming the award under no-fault liability, the direction regarding payment of interest on the said amount is, in view of the decisions referred to above, set aside. An order regarding payment of interest on the sum awarded under no-fault liability will be passed by the Tribunal while disposing of the main case, and it is ordered accordingly. Subject to the above modification of the impugned order regarding payment of interest, the appeal stands dismissed. There shall, however, be no order as to costs. Appeal dismissed.