Court of Law or Justice?

A Court of Law or Justice?Narasimhan Vijayaraghavan
• Ms. C.Harini
• Ms. Ramya Raghavan
Advocates, Madras

• Narasimhan Vijayaraghavan
• Ms. C.Harini
• Ms. Ramya Raghavan
Advocates, Madras

Donald J. Trump, leader of the free and unipolar world ‘has the attention span of an eight grader”, says a Harvard Professor. Law is no different. Legal fraternity is no different these days. And in these Pandemic times even when time is in our hands, curiously, the short attention span has become exacerbated. Social Media on the information highway has spoilt the focus. “Head Notes today is Law. Whoever has the inclination to dig deep to read any verdicts in full”, messaged a friend on the Bench. These thoughts crossed the minds of these authors, as they read the orders dt.12th May,2020 in NIA vs Ningawwa from a Full Bench of the Karnataka High Court., all of 196 pages.

Holding that the judgment in K.C Subramanyan of a two judges bench was flawed, it has been held that even if the ‘insurance policy was void’, as a compulsory mandate of Parliament, on third party insurance, the insurers have to pay compensation to the victims. But, the insurers would have the right to recover such compensation from the owners of the motor vehicles.

This, in the context of a claim by a victim, unauthorisedly carried in a tempo viz. goods vehicle. And for whom the risk was ‘neither required to be covered under Sec.147 of MV Act,1988 nor covered under the motor policy of insurance for the motor vehicle”. All in the name of the welfare imprimatur from Parliament. Not for the first time. Surely, not the last time. But, viral climes gives one the luxury to read ‘in full’, the verdict running to 196 pages, from the 3 law lords.

The victims can breathe easy. That is the larger picture. Then what is the issue? Insurers are straitjacketed. They deserve to be, as law has proclaimed, not once, but consistently. Then what’s the problem? It is regretful that in the name of beneficial legislation, law and language continue to take a beating. Now, anything goes in its name. Excuse me, we can hear you shout out, “Do Justice inspite of law” said Lord Denning”. Yes. Yes. True. But Law does matter, right?

After adverting to a catena of decisions, of which there is no dearth, the Full Bench has concluded at least within Karnataka State, the ‘notorious fact of unauthorised passengers travelling in goods vehicles’ notwithstanding, they stand protected by the benevolent legislation, if there happened to be an insurance cover in place, for the goods vehicles. And in these days, when the migrant population is impelled to walk, run, travel in trucks and what not, it is a comforting thought? But what of Law please? By Jove, Law is for the people and not the reverse, one agrees.

Way back in Dundamma (1992 ACJ 1) then Chief Justice Rama Jois, Karnataka High Court wrote for a Full Bench, on this very issue on 06-06-1991 vis a vis MVAct,1939. The insurers were held not liable for such victims but upon application of the principle of stare decisis, it was held that exoneration of insurer shall be applied prospectively. And the Supreme Court affirmed this position in Mallawwa (1999(1) SCC 403). We now have a new dispensation under MV Act, w.e.f. 1st July,1989.

Under the shadow of 1939 Act, insurers provided for an add or contractual cover, christened as Non-Fare Paying Passengers benefit, for those carried in goods vehicles, for fixed sums. Picking up on this theme, Parliament amended Sec.147 to include coverage for ‘owners or representatives of goods’ travelling in goods vehicles. But, even now, not providing support to those travelling gratuitously or on hire or reward. That is where trouble began, and has not ceased, until Ningawwa today and unlikely to cease forever, be it for the good of the innocent motor accidents victims, if you will. Law, of course, be damned.

In Satpal Singh (2000(1) SCC 227) decided on 02-12-1999, for a minor girl on a goods vehicle, Supreme Court chose to hold her ‘covered’ as coming within the ambit of ‘any person’ in the statute. Wrong. Any person was not Any person, as No law was not No Law under the US Constitution as Nixon’s lawyer Erwin Nathaniel Griswold argued in NYT vs USA (Pentagon Papers case- 1971).

It had exceptions, and ‘unauthorised occupants’ was one. Then in Asha Rani (2002 (8) Supreme 594) on 03-12-2002 apex court said – Oops, sorry we went astray. They pivoted and said such persons were not required to be covered, as the language of Sec.147 was clear and specific, ‘when read in full’. And then what happens? The precept and practice of Pay and Recovery surfaces to ‘rescue the victims as the purpose of the legislation was paramount’. “Ironing out the creases in the statue” is nothing new (Motor Owners vs Jadavji in 1981 ACJ 507 (SC)). But pressing the creases so hard that it goes for broke? That is new and novel.

In the interregnum between Satpal Singh and Asha Rani, the courts below had obediently followed the leader under Art.141 of Constitution of India. The victims were blameless. Upon Asha Rani becoming law, in Baljit Kaur (2004 (2) SCC 1) and Nanjappan (2004 (2) TAC 12 (SC)), the top court rescued the victims with the Pay and Recovery rule, as the courts were merely being disciplined in applying Satpal Singh. And that dear reader, is a viral faultline which is refusing to go away, to the eternal gratitude of the victim populace. Ningawwa is the new kid on the block, afflicted by the virus. Vaccines found in the meanwhile, have not been of any use for the viral impact is benevolent and graceful, while the Vaccine is harmful and prejudicial to the victims.

Next, be it gratuitous occupants in a private car or pillion riders on two wheelers, even if the policy of insurance was Act or Liability only, insurers could be held liable to pay and recover ( in fact there are a few stray viral strains of this genre, already, which may now spread ). Law is clear that under Act or Liability only policies of insurance, such victims are not covered. (Tilak Singh-SC – (2006) 4 SCC 404). Only under a Package or Comprehensive policy of insurance, such victims are covered (M Laxmi CA NO. 6659 OF 2008 (SC) and Bhagyalakshmi (SC – 2009 AIR SCW 5325)). A compelled Circular from Insurance Regulatory & Development Authority (by judgment of Delhi High Court in Yashpal Luthra reported in 2011ACJ1415) dt.9/12/2009 makes what is clear now, evident and obvious.

To cut the story shorter, to beg and hold the reader’s dissipating attention span, the Supreme Court has tucked into Art.142 to do ‘complete justice’ by repeatedly making ‘pay and recovery’ orders, no matter the defence of insurers. But High Courts? That is where Ningawwa comes to trump K C Subramanyan (ILR 2012 KAR 5241). You see, women power. To the academically inclined, construction of Secs.149 (3) and (4) as if enable such orders, even where the victims were not ‘covered under the contract of insurance’ is jarring. Yes Mi Lords, they are.

There is a world of difference between ‘breach’ by an insured, and total lack of ‘coverage’. To read the two, as if they mean the same thing, is not a purist’s delight. ‘Breach’ presupposes a coverage, so pay and recovery is fine. No ‘Coverage’ is a wholly different kettle of fish, for it is nothing but No Insurance or Coverage. Pay and Recovery, despite no ‘Coverage’ is mutilation of the ‘creases in the statute’ and not mere ‘ironing’ out of it, you see.Of course, in the name of ironing, if you will.

Yes, in Captain Itbar Singh (AIR 1959 SC 1331) in 1959 and Kokilaben (SC 1987 2 SCC 654), the apex court said that the restricted defences of insurers and liberal construction of the statute, were meant for a purpose. To protect the victims. If insurers were in business, they better adjust themselves as compulsory insurance was not ‘meant for insurance companies to make premium and run their businesses on economical lines’. So, one is appreciative and understanding of the tweaks given by the Justices.

Read the decisions in ITGI vs Jaffer Sadiq ( Mad) (DB) (2012 (1) TN MAC 394 (DB)) and Bharati Axa vs. Aandi & Ors (IV(2019)ACC626(Mad.)) ( Mad) (DB), Bharti Axa General Ins. Co. Ltd vs A.Aysha (MANU/TN/5020/2018) where the distinction between 1939 and 1988 Acts, have been correctly drawn and Law properly laid down. As to when pay and recovery rule can be embraced and when not.

And when the victims are ‘unauthorised occupants in a goods vehicles’, and not required to be covered under Sec.147’and not covered under the contract of insurance, they stand orphaned by Law. The court becomes the self-appointed benefactor by assuming the role, without the power to do so. Oh, lest we forget, of course, the legislation is welfare founded, you see. We are not being loyal to Madras High Court and this is not Cauvery imbroglio, when one has to be politically correct, even if legally not.

In fine, while one lauds the laudable motive of the Law Lords, in the name of Blind Lady of Justice, Law, meanwhile takes the backseat, making mincemeat of the Learned Hand and Justice Holmes famous exchange on Law and Justice.

There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together, and afterward, Justice Holmes began to drive of in his carriage, Hand in a sudden onset of enthusiasm, ran after him, crying, “ Do Justice Sir, Do Justice”. Holmes stopped the carriage and reproved Hand, “That is not my job. It is my job to apply the law”.

The only request is this. Please do not assume, claim and say ‘Law’ enables such orders, or it is is Lawful to do so. Just say, what it is. We are no longer a Court of Law. We have now become what we ought to be. A Court of Justice. That would be as Lawfully Just, as it would be Justly Lawful, and possibly as it is, and ought to be.

(Authors are practising advocates in the Madras High Court)

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