A. Venkatesan V/S State Information Commissioner & Ors.

“One of the first principles of law with regard to the effect of an enabling act is that a legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purpose in view.”

 [Case Brief] A.Venkatesan V/S State Information Commissioner & Ors.

• BRIEF FACTS AND PROCEDURAL HISTORY:

1. New India Assurance Co., Ltd., had received notice in a proceeding before the Motor Accidents Claims Tribunal claiming compensation for the victim in an accident involving the vehicle bearing Registration No. TN-07-A5 6214 said to have been insured with it.
2. The services of the Petitioner was engaged as ‘investigator’ by the Sixth Respondent to collect copies of the documents relating that accident and the vehicle involved from the concerned persons including the police authorities.
3. The erstwhile practice followed had been that such investigators engaged by the insurers would collect copies of the required documents from the concerned persons and police authorities and submit their investigation report for enabling the insurers to effectively conduct the proceedings before the Motor Accident Claims Tribunal

• ISSUE BEFORE THE COURT:

1. Whether the provisions of the Right to Information Act, 2005, could be invoked for obtaining documents from police authorities in connection with defending a claim for compensation before the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, 1988?
2. Whether an ‘investigator’ appointed by an insurer is empowered to correspond with public authorities and/or prosecute litigation relating to furnishing of documents in connection with an accident involving a vehicle said to be insured with that insurer?
3. What is the legal remedy available to an insurer when documents required from police authorities in connection with an accident involving a vehicle said to be insured with it have not been furnished?

• RATIO OF THE COURT:

1. The court held that it must also be recapitulated here that the liability of an insurer to meet a claim for compensation made by a third party arising out of an accident caused by use of a motor vehicle insured with it emanates from the Motor Vehicles Act, 1988, which law has also created the exclusive forum of Motor Accidents Claims Tribunal to adjudicate the same. In that statute, Chapter XI containing Sections 145 to 164 relates to ‘Insurance of Motor Vehicles against Third Party Risks’ and Chapter XII containing Sections 165 to 176 relates to ‘Claims Tribunal’. It could be inferred from Sections 158(6) and 160 of that enactment read with Rule 150 of the Central Motor Vehicles Rules, 1989, that there is an entitlement, as of right, conferred on the insurer to be furnished with particulars required of the vehicle said to have been insured with it and of the accident in which it is reported to be involved, by the concerned police authorities, and that would necessarily also mean supplying copies of relevant documents in proof thereof.
2. The Hon’ble Supreme Court of India in General Insurance CouncilState of Andhra Pradesh [(2007) 12 SCC 354] and the Division Bench of this Court in United India Insurance Co., Ltd. v. R. Venkatesan (2003-1-L.W. 31) have reiterated that the statutory obligations on the police authorities in terms of the said provisions is mandatory and has to be forthwith complied on occurrence of accident involving the motor vehicle without brooking any delay.
3. This Court in Cholamandalam MS General Insurance Co., Ltd.Inspector of Police, Cuddalore (Order dated 12.09.2017 in Crl.O.P. No. 18110 of 2016) has declared that that the hosting of the required documents in the CCTNS portal of the Police Department in the internet is the online version of carrying out that statutory obligation by the police authorities in the State of Tamil Nadu and it is precisely for that reason, the requirement of furnishing manual copies of those documents to the Motor Accidents Claims Tribunals and insurers has been done away, upon having meticulously verified that access to that facility has been made available to them, and that aspect has also been expressly recorded in that decision. In other words, it follows that there is definitely a functional system in place as on date in the digitalized mode for the police authorities to discharge their obligations to the insurers in terms of Sections 158(6) and 160 of the Motor Vehicles Act, 1988.
4. The court stated that when a particular statute provides for access to information by prescribing a procedure in that regard, the provisions of the Right to Information Act, 2005, shall not be invoked for the same purpose and that the overriding effect in Section 31 of the Right to Information Act, 2005, cannot have any application in the absence of inherent inconsistency between that enactment and the other law. Another facet of the matter, which has relevance to the dispute involved in this case, as pointed out in that decision, is that Section 8(1)(j) of the Right to Information Act, 2005, excludes disclosure of personal information which (i) has no relationship to any public interest or activity; or (ii) would cause unwarranted invasion of the privacy of the individual. It is beyond cavil that the documents required by the insurer from the police authorities regarding the accident and the vehicle involved undoubtedly pertain to personal information either of the victim or the vehicle owner which would fall under that exception.
5. It may also be remembered here that a Nine Judge Bench of the Hon’ble Supreme Court of India in S. Puttaswamyv. Union of India [(2017) 10 SCC 1] has in no unmistakable terms recognized that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Viewed from that perspective, it must be held that when the right has been created for the insurer to obtain the required documents from the police authorities in a certain way under the Motor Vehicles Act, 1988, such right must be exercised only in that way and that other modes (including invocation of the provisions of the Right to Information Act, 2005) for seeking that relief, stand necessarily forbidden.
6. Then the court held on the locus standiof an investigator, like the Petitioner in this case, to correspond with police authorities and prosecute litigation relating to the documents required by the insurer. It is axiomatic that the relationship between an insurer and an investigator appointed by that insurer to collect documents and make enquiries regarding the accident involving the vehicle said to have been insured with that insurer, is simply that of principal and agent.
7. It is an elementary principle of law that an agent, in his own personal capacity, cannot enforce the rights of his principal as against third persons and at best, he can act or represent on behalf of his principal for that purpose depending upon the extent of his authority in that regard, but that would not, by any stretch of imagination, entitle the agent to act independent of his disclosed principal. It cannot be forgotten here that the insurer collects funds from the public as vehicle owners in the form of insurance premia for meeting the claims for compensation arising out of motor accidents in pursuance of the requirement imposed by law. As a corollary, the role of the insurer in defending third party claims arising out of motor accidents is that of a trustee of public funds and as such, it is one of the essential duties required to be performed by the hierarchy of officials in the organizational structure of the insurer, which responsibility ought not to be abdicated by ingenious methods of outsourcing those functions to freelancers appointed as investigators under the ruse of lack of manpower. It is, no doubt, true that in the absence of any prohibition, the hiring of services of individuals on contract basis for carrying out specific tasks of a business entity due to exigencies would be permissible for supplementing the performance of work, but that arrangement cannot lead to absurd consequences of supplanting the essential functions of the insurer itself.
8. It is probably in that factual backdrop, the right of access to the CCTNS portal has been thoughtfully restricted only to stakeholders (which undoubtedly includes the insurer) on payment of prescribed fee, and it cannot be carped that there is no provision for other intermeddlers, who are in no way connected with it, for using that facility, as it is likely to otherwise cause invasion of the privacy of the victims and the vehicle owners by misuse of their personal information. That being so, it is really inconceivable as to how the Petitioner in this case could independently assert rights against the police authorities to produce documents required by the Sixth Respondent and further prosecute this Writ Petition in his personal capacity for such object.
9. The court observed that when an application for that purpose is made by an insurer in a pending Claim Petition for compensation, it is incumbent upon that Motor Accidents Claims Tribunal to expeditiously consider the same and pass appropriate orders thereon in accordance with law. If found necessary, the Motor Accidents Claims Tribunal may by recording reasons in writing also extend time to the insurer to file counter or defer the conduct of trial till the required document is actually produced, on case to case basis, having due regard to its material nature and relevancy, bearing in mind the salutary intention that the ends of justice has to be secured for comprehensive and meaningful adjudication of the matter ultimately. The orders passed by the Motor Accidents Claims Tribunal on such application made by an insurer, would certainly be amenable to the superintending jurisdiction of this Court under Article 227 of the Constitution.
10. When such efficacious mechanism exists in the statutory provisions, it is hard to believe that the insurer is helpless when the required documents are not uploaded in time in the CCTNS portal of the Police Department in the internet, as sought to be portrayed by the Petitioner in this case.

• DECISION HELD BY COURT:

1. At last the court stated that where the concerned police officer, without justifiable cause, fails to promptly comply with an order passed by the Motor Accidents Claims Tribunal to produce the document required by an insurer in terms of Sections 158(6) and 160 of the Motor Vehicles Act, 1988, or does not respond to the direction issued by the Nodal Officer for uploading such document in the CCTNS portal of the Police Department, he shall be liable for disciplinary action as per rules.
2. Hence, the Director General of Police, Tamil Nadu, is directed to issue a circular in this regard along with a copy of this order to all the concerned Police Officers in the State of Tamil Nadu requiring strict compliance of their statutory obligations mentioned supra, and also send copies of the same to the insurance companies which have been registered with the CCTNS portal of the Police Department for availing the online facility for downloading required documents.
3. The Registry of this Court, after obtaining necessary orders from the Hon’ble Chief Justice, shall also communicate copy of this order to all the Presiding Officers of the Motor Accidents Claims Tribunals in Tamil Nadu and Puducherry for apprising the legal position enunciated in this order.
4. In the upshot, the Writ Petition is dismissed. No costs.