1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.205 OF 1996 M/s New India Assurance Co. Ltd., having its Registered and Head Office at New India Assurance Building, 87, M.G.Road, Fort, Bombay 411 001, Branch office at Jalna and Divisional Offices at Adalat Road, Ajay Engg. Compound, Aurangabad 431 005 and 2420, General Thimayya Road, Gulmohor Apartments, Pune, through its Sr.Divisional Manager and duly constituted Attorney Mr.Syed Khalil s/o Syed Chand. Appellant Versus 1 Mr.Bhujanga s/o Wamanrao Katkade, aged 30 years, Occ: Agril.; 2 Mr.Pralhad s/o Wamanrao Katkade, age: 32 years, Occ: Agril., 3 Mr.Narayan s/o Wamanrao Katkade, age: about 34 years, Occ: Agril.; 4 Ambadas s/o Wamanrao Katkade, aged: 36 years, Occ: Agriculture; 5 Smt.Padmabai w/o Wamanrao Katkade, aged 55 years, Occ: Agril & Household, All are R/o Dahnore, Tq. & Dist.Jalna. 6 Mr.Sk.Shakuddin s/o Sk.Shamsuddin, age: 24 years, Occ: Driver and owner of Matador Mh-15-B-897, R/o Ner, Tq. and District Jalna. Respondents Mr.V.N.Upadhye, advocate for the appellant. Mr.J.C.Badve, advocate for Respondents No.1 to 5. 2 CORAM: R.M.BORDE, J. DATE : 08 th February, 2010. ORAL JUDGMENT: 1 Original opponent no.2 – New India Insurance Company has preferred instant appeal raising exception to the judgment and award in Motor Accident Claims Petition No.23 of 1994, decided by Ex-Officio Member, Motor Accident Claims Tribunal, Jalna on 8 th December 1995. 2 Respondents 1 to 5 – original claimants presented claim petition claiming compensation to the tune of Rs.1,00,000/- on account of death of one Wamanrao who died in motor accident which occurred on 18.04.1994 at 8.00 a.m. It is contended by claimants that on the given date, deceased was proceeding to his agricultural land through Viregaon-Ramnagar road. One matador bearing Registration No.MH-15-B-897 owned and driven by opponent no.1 came from backside and dashed deceased who was walking through the street. Deceased died due to injuries on the spot of occurrence. Report was thereafter given to the police and offence came to be registered against driver of the vehicle. It is claimed that on account of death of deceased, claimants are entitled to claim compensation to the tune of Rs.1,00,000/- by way of damages. 3 Petition is contested by opponent no.1 by filing written statement. Opponent no.1 has denied that he was driving the vehicle in rash and negligent manner. He also denied that he was carrying passengers in the vehicle. It is contended that accident had occurred due to absent mindedness of deceased and due to his own fault. It is contended that the vehicle was insured with opponent no.2 – insurance company. As such, insurer is liable to reimburse the claim. 3 4 After considering evidence placed on record, learned Member, Motor Accident Claims Tribunal, allowed the application and directed opponents to pay compensation to the tune of Rs.1,00,000/- along with cost and interest. 5 Being aggrieved by the judgment and award passed by Tribunal, insurance company – original opponent no.2 has approached this Court by presenting instant appeal. 6 There are two grounds raised by appellant – insurance company. Firstly, it is contended that on the date of accident, no valid policy was in existence. Secondly, it is contended that owner and driver of the vehicle has committed breach of condition of insurance in carrying passengers in goods vehicle and as such, insurance company shall have to be exonerated of its liability to reimburse the claim. 7 In order to appreciate contentions raised by appellant, I have perused the judgment delivered by Tribunal as well as perused the record. Firstly, it is to be noted at this stage that there is no defence raised by appellant – opponent no.1 and the contentions, those are advanced before this Court, were not at all part of defence of insurance company. On perusal of certificate of insurance of vehicle, there is nothing in the document to draw an inference that on the date of occurrence of the accident, there was no valid policy in the name of owner. It is to be borne in mind that instant is a case in respect of claim raised by third party as against owner and insurer. The claim, therefore, is to govern by provisions of Section 96 of Motor Vehicles Act. The defence is permissible only in accordance with provisions of statute. Second ground raised is in respect of carrying passengers in the vehicle, which has given dash to deceased. It is required to be noted here that, as stated earlier, instant is a third 4 party claim. No claim is raised by the persons who were being carried in goods vehicle. In view of mandate of provisions of the Act, it is the insurer, who has to meet the claim. Certain observations made by the Apex Court in the judgment in the matter of Ramkrishna Reddy Vs. Manager, H.M.T. Ltd. and another, reported in 2003 ACJ 105, are apt to be quoted: 19 We may also at this stage refer to the pernicious habit of some branches of insurance companies in filing stereotyped written statements denying all and everything. They routinely deny the Insurance, then alternatively plead that even if there was an Insurance, there was a breach of terms of the policy, that driver did not have a valid driving licence, and lastly there was no negligence on the part of driver of the insured vehicle. They do not brother to verify whether the insurance policy covered the risk or not and whether driver had a licence or not. We recognise that insurers are sometimes handicapped for want of full information, while giving instructions to their Counsel, and therefore the objections may be general in nature. We are also conscious that we cannot frown upon a party taking all permissible defences. But, applications for motor accident claims are not to be treated by insurers as normal private adversary litigation, where technical contentions can abound in pleadings and the sole intention is winning the lis. Under the policies of Insurance, the insurers discharge statutory obligations towards third parties. They should do so keeping in view the object and spirit of the Act, and the position of hapless victims of motor accidents. Insurers should balance their concern to safeguard its financial interest, with their obligations as instruments of social justice under the Motor Vehicles Act. 19.1 The claimants are not litigants by choice, but are constrained to approach the Tribunal, because of the death of breadwinner or injury to self, and because the owner and insurer of the vehicle involved, fail to pay the compensation. The insurer should bear in mind that the claimants are also handicapped in obtaining particulars of the insurance policy held by owner or driving licence held by the driver of the vehicle, and they solely depend upon 5 the police for these particulars. The insurer should therefore verify whether there was any Insurance policy or not, whether the insured was covered by insurance policy in regard to the claim or not, and whether the driver had a licence or not before filing its statement of objections and narrow down the area of controversy if the insurer were to file `play it safe’ written statements, without verifying these aspects and mechanically denying all petition averments, the trial gets delayed and the claimants are put to misery and unjustly kept away from the direly needed compensation. It is time that insurers get rid of “Deny Everything and Await the Award Syndrome” and become responsible and responsive opponents in motor accident claims. We make it clear that the above observations are intended only to those officers of Insurance companies who refuse to recognise their statutory obligations to third parties, under the insurance policies issued to the insured.” 8 In the instant matter, in fact there is no written statement presented by insurance company. In the absence of any defence raised by insurer, contentions raised, specially in the case wherein claim is in respect of third party, the insurer cannot be permitted to deny and defeat the claim. While considering issue in respect of breach clause put forth by the insurer to absolve their responsibility, the Apex Court, in the matter of Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and others, reported in AIR 1987 SC 1184, has observed in paragraph no.13, as below: “In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. Ordinarily it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not. If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. Why then has the legislature insisted on a person using a motor vehicle in a public place to insure against third party risk by enacting S.94. Surely the obligation has not been 6 imposed in order to promote the business of the insurers engaged in the business of automobile insurance. The provision has been inserted in order to protect the members of the Community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependents of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the Courts would be recoverable from the persons held liable for the consequences of the accident. A Court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recovered, from the person held liable who may not have the resources. The exercise undertaken by the law Courts would then be an exercise in futility. And the outcome of the legal proceedings which by the very nature of things involve the time cost and money cost invested from the scarce resources of the `Community would make a mockery of the injured victims, or the dependents of the deceased victim of the accident, who themselves are obliged to incur not inconsiderable expenditure of time, money and energy in litigation. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence. The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the contract of policy. In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by S.96 and by providing that except and save to the extent permitted by S.96 it will be the obligation of the Insurance Company to satisfy the judgment obtained against the persons insured against third party risks. (vide Section 96). In other words, the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in 7 order to ensure that the injured victims of automobile accidents or the dependents of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has therefore to be interpreted in the twilight of the aforesaid perspective. 9 The provisions of Section 96(1) of the Motor Vehicles Act, 1939, are clear in itself to fasten the liability on the insurer. The defence raised by insurance company, in the absence of there being any written statement, is not entertainable and more specifically in view of the mandate contained in Section 96(1) of the Act. In this view of the matter, I am of considered opinion that there is no merit in the appeal and appeal deserves to be dismissed. 10 In the result, appeal stands dismissed. In the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/fa20596