9911796707
TMI Blog1983 (7) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... a Chakraborty, an young typist aged 21, in employment of the hirer of the vehicle (M/s Oil India Ltd), travelling by the said bus, in the course of employment, sustained serious injuries in the said accident resulting in his death. On a claim being preferred by Mahim Chandra Chakraborty, the father of the deceased, the Motor Accidents Claims Tribunal, Gauhati, by its award dated January 28, 1975, passed in MAC Case No. 45(K) of 1972 allowed the same with interest and costs and by the same order also determined the respective liabilities of the aforesaid owner of the vehicle, M/s. National Transport (India) Pvt. Ltd., and M/s New India Assurance Co. Ltd., with whom the vehicle was insured. Taking into consideration the terms of the policy and the provisions of section 95(2)( b ) of the Motor Vehicles Act, 1939, the insurer was directed to pay Rs. 2,000 and the balance Rs. 13,000 was made payable by the owner. A Bakijai case, being Case No. 24 of 1974-75, was started against the company for realisation of the awarded amount and a notice under section 7 of the Bengal Public Demands Recovery Act was issued on December 29, 1976, against the said company as the certificate-debtor. Before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r suffers from an error of law apparent on the face of the record and it is, as such, liable to be quashed by a writ of certiorari. We have no doubt about the fact and it is also not disputed before us that the company was dissolved, as it appears from Annexure-I to the petition, in accordance with the provisions of section 560(5) of the Companies Act and that a notification to that effect was published in the Gazette of India on April 21, 1973. The only question which falls for our consideration in this application is the effect in law of the said dissolution inasmuch as the learned counsel for the respondents-claimants, Mr. B. Sarma, contends that by virtue of the proviso ( a ) of the same provision, the liability of the dissolved company has devolved on the ex-directors. In our opinion, however, the provision relied on does not provide a correct and complete answer to the questions raised before us on the validity of the impugned order. The relevant provisions may, therefore, be read : 560(5) At the expiry of the time mentioned in the notice referred to in sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of section 543. When such liability is determined, then and then only the directors can be proceeded against individually in their personal capacity, otherwise, for any debt due by the company, they cannot be proceeded against by any creditor of the company in their individual capacity, either before or after its dissolution. We were , however, appalled by the prospect of the poor claimants-respondents being deprived substantially of the fruits of the award which was passed in their favour 8 years ago. The fact that more than two decades have elapsed since the accident stared us at the face as a budding precious human life was lost for which law could not provide even a poor recompense to the family which, as appears from records, belongs to the underprivileged class of wage earners. We, therefore, made an attempt to investigate the position as to whether the petitioners had with them in their control or possession any assets of the defunct company out of which the just dues of the claimants could be satisfied. We also endeavoured to investigate if the entire amount of the award could be satisfied under the law by the insurance company. Accordingly, during the course of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the claimants-respondents shall be satisfied in this case by the insurer if, on the facts of this case, we find that the statutory liability of the insurer in the matter of satisfaction of the award is not limited to Rs. 2,000 but extends to the entire amount of the award. The specification, in terms of section 110B of the Act, in the award, in the instant case, of the amount of Rs. 2,000 as payable by the insurer does not, in our opinion, preclude the claimants from agitating in this proceeding the right available to them under section 96 to have the award satisfied by the insurer to the exclusion of the owner to the extent allowed by section 95. Because section 96(1) in terms provides that if a "judgment in respect of any such liability as is required to be covered by a policy under clause ( b ) of sub-section (1) of section 95" is obtained against any person insured by the policy, the insurer shall "pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured thereunder, as if he were the judgment-debtor in respect of the liability." In our opinion, the purport of the concluding sentence of section I 10B (even after the amendment of 1969) by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97, 99 and 100 reflect the position that the "amount" so specified creates merely a tentative and inchoate obligation which is perfected in the course of discharge of the judgment-debt arising under the award in respect of the total "amount" of compensation payable in respect of the claim determined in the course of adjudication thereof culminating in the award passed under section 110B. We now turn to the primary aspect of the objection of the insurer based on sub-section (2)( b ) of section 95 of the Act as to the limit" of its liability which with the aid of the concluding sentence of section 110B is said to exhaust its liability under the award notwithstanding the provision of section 96. In order to deal with this limb of the contention, we may read the relevant portions of section 95 (as in 1962) having a bearing on this point. "95. Requirements of policies and limits of liability. ( i ) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which ............... ( b ) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof ; clauses ( a ) and ( b ) of sub-section 2, on the other hand, prescribe the limits of the liability of the insurer incurred under the policy of insurance issued in compliance with the requirements of Chapter VIII in respect of any one accident as a result of the use in a public place of the vehicle insured indicating simultaneously the types of vehicle and the persons or classes of persons, indicated albeit in sub-section (1)( b ), in relation to which the limits are to be determined. There is no dispute in this case about the type of vehicle involved in the accident which is not material also for the purpose of deciding the point at issue in this case. What is necessary is to identify the classes of beneficiaries contemplated in clause ( b ) and to fix the identity of the deceased in the particular class. It is not difficult to see that clause ( b ) is a composite provision consisting of several parts. It indicates two classes of beneficiaries in its first part, namely, (1) passengers carried for hire or reward, and (2) passengers carried by reason of or in pursuance of a contract of employment. In the same part, a limit is also prescribed but only in respect of one cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Ltd. v. Jodavji Keshavji Modi, AIR 1981 SC 2059 ; [1982] 52 Comp. Cas. 454 (SC) and it was held in that Case that although the expression was susceptible of two equally reasonable interpretations, the ambiguity must be resolved by having regard to the underlying legislative purpose of the provisions contained in Chapter VIII of the Act. Accordingly, it was held that the word "accident" should be considered from the point of view of various claimants each of whom was entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurer. In this case, therefore, in respect of the accident resulting in the death of Dual Choudhury, his heirs, the claimants, by virtue of the provisions of the first part of clause ( b ) of sub-section (2) and also of sub-section (5) of section 95 of the Act, are entitled to have payment made to them, by the insurer, in terms of section 96, of the entire amount or Rs. 15,000 of the award which is well within the "limit" of the statutory liability of the insurer which is fixed at Rs. 20,000 by the Act. The learned counsel for the insurer has drawn our attention to a decision in Sheikhupura Transport Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l issue in appropriate cases even when there is an alternative remedy. Thus, the court will exercise its discretion in a case where justice of the case demands, to issue appropriate directions to give relief to any party before it when the grievance flows' from the breach by an adversary of any statutory duty resulting in economic injustice and the constitutional goal in this regard being frustrated. Accordingly, we direct that respondent No. 10, the New India Insurance Co. Ltd., shall deposit with the Tribunal the balance amount of the award, namely, Rs. 13,000, together with the balance of costs and also the interest as per the award, to discharge their statutory liability under the award, within a period of two months whereupon the Tribunal shall record satisfaction of the award and arrange disbursement of the amount to the claimants-respondents. We may, in this connection, make it clear that as per award of the Tribunal, the claimants are entitled to interest at 6% per annum from the date of filing the claim petition (namely, November 27, 1962), till satisfaction of the award which was within its competence to award in addition to the compensation, as held by a Full Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er order/direction" as this court may deem fit and proper. As the total exoneration of the company, in the sense of making the insurer fully liable for the award, will give full relief to the petitioners, the absence of a specific prayer to this effect has not been deemed sufficient by us to deny this relief to do complete justice between the parties because of these pronouncements of the apex court. It has been stated in Charanjit Lal Chaudhari v. Union of India [1951] 21 Comp. Cas. 33 ; AIR 1951 SC 41, that article 32 has given very wide discretion in the matter of framing writs to suit the exigencies of particular cases and an application cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for. I have no doubt that what has been stated about article 32 in this regard applies proprio vigore to article 226, as the language, in so far as framing of writs is concerned, is similar in the two articles. In Satyanarayan Singh v. District-Engineer, AIR 1962 SC 1161, appropriate relief was granted because of the prayer for grant of "other relief" in the petition (see para 11). In the present case as well, the petitioners have prayed, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
