Bajaj Allianz General Insurance Company vs Bhakta Ram Manjhi and Others

N.K. Agarwal, J.—Feeling aggrieved by the award dated 18th July, 2008 passed by the 4th Additional Motor Accident Claims Tribunal (FTC), Raigarh, in Claim Case No. 10/2008 whereby and whereunder an amount of Rs. 4,21,000/- has been awarded and liability has been fastened upon the Appellant/insurance company along with interest at the rate of 7.5% per annum from the date of application till its payment, the instant revision has been filed.

Facts briefly stated are as under:

The Appellant/insurance company feeling aggrieved by the quantum of the award has filed this revision. Admittedly, the award is appellable u/s 173 of the Motor Vehicles Act, 1988 (briefly ''the Act''). This is also not in dispute that permission u/s 170 of the Act has not been obtained by the applicant herein so as to contest the case, upon the grounds which are available to the owner/driver of the vehicle.

As per Shri Rajput, learned Counsel appearing for the applicant/insurance company, the revision has been rightly preferred by the applicant in the light of judgment of Apex Court in case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, , wherein it has been held that since the revision has not been expressely barred by the statute and therefore, the applicant/insurance company can seek its remedy by filing a revision.

I have heard learned Counsel for the applicant and perused the impugned award.

The core question arises for decision making in the instant revision is that:

whether or not the applicant can seek its remedy by way of revision although the remedy of appeal is available?

Para 6 of the judgment of the Supreme Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, ), upon which learned Counsel for the applicant has placed its reliance, reads as under:

The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided u/s 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court u/s 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court u/s 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision u/s 115 Code of Civil Procedure, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court u/s 115 Code of Civil Procedure, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution.

A bare reading of the aforesaid paragraph of the judgment would reveal that Hon''ble Supreme Court has observed that in case where a remedy by way of appeal has not been provided against the judgment of District Judge, the remedy available to the aggrieved person is to file a revision before the High Court u/s 115 of the CPC unless expressly barred by State enactment. Indisputably the award impugned is appellable u/s 173 of the Act. Although in the absence of permission u/s 170 of the Act, the insurance company can only prefer appeal upon the grounds available to it under the provisions contained in Section 149(2) of the Act as in the absence of grant of permission u/s 170 of the Act, the insurance company is not entitled to file an appeal challenging the award on the ground which are otherwise not available to the insurance company, as held by Supreme Court in the case of National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, in para 6 of its judgment which reads thus:

For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made, or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 are satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Section 173 of the 1988 Act, the same would go contrary to the scheme and object of the Act.

In view of the above, since the remedy of statutory appeal is available to the applicant of course in absence of grant of permission u/s 170 of the Act only on the grounds which are available u/s 149(2) of the Act, therefore, this revision is without jurisdiction. The remedy of appeal and revision are not alternative remedies which the applicant can pick and chose amongst them but the remedy of revision is only available when the remedy of appeal is not provided under the statute.

In view of above, in the considered opinion of this Court, this revision being without jurisdiction is liable to be dismissed and is hereby dismissed. However it is made clear that the applicant is free to pursue its remedy by filing a legally constituted appeal if so advised.

In view of above, interim order granted earlier also stands vacated.