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Judgment
Sanjay K. Agnihotri, J.—Heard on I.A. No. 1/2013, which is an application for condonation of delay in filing the appeal. On due consideration of the submission made by appellant''s counsel, I am satisfied that the appellant has succeeded in explaining the cause of delay in filing the appeal and, therefore, the application {I.A. No. 1/2013} is allowed. Delay in filing the appeal is condoned.
Heard on the question of admission.
The appellant/Insurance Company has filed this appeal u/s 173 of the Motor Vehicles Act (for short ''M.V. Act'') passed by 2nd Additional Motor Accident Claims Tribunal, Rajnandgaon (for short ''the Claims Tribunal'') in Claim Case No. 42/2012, vide award dated 28.7.2012 by which a sum of Rs. 3,22,000/- along with interest @ 6% per annum from the date of filling of claim petition till its actual payment has been awarded to the claimants, who are parents of deceased Girish Tiwari, aged about 26 years.
Shri B.N. Nande, learned counsel appearing for the appellant would submit that learned Claims Tribunal has fallen in error in awarding compensation of Rs. 3,22,000/- to the claimants as the deceased was bachelor, aged about 26 years and age of the parents of deceased as 55 & 61 years and, therefore, the multiplier of 8 would be appropriate for the purpose of computation of compensation instead of 17 as applied by the Tribunal.
On being asked from the learned counsel for the appellant/Insurance Company whether permission u/s 170(b) of the M.V. Act was granted to the Insurance Company to contest the matter on merits, learned counsel for the appellant/Insurance Company, on instructions, submits that no such permission u/s 170(b) of the Motor Vehicles Act was granted to the appellant/Insurance Company to contest the matter on merits and he submits that quantum of award so quantified by the Claims Tribunal is on the higher side and, therefore, the award deserves to be modified.
The Supreme Court in case of National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, has held that the Insurance Company has no right to challenge the quantum of compensation as it has got limited defence as provided in Section 49(2) of the Motor Vehicles Act in absence of permission from the Tribunal to avail the defence as required u/s 170(b) of the Act.
It is relevant to note that Parliament, while enacting Sub-section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not find place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If parliament had intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of conditions of insurance policy in Sub-section (2) of Section 149. If we permit the insurer to take any other defence other than those specified in sub-section (2) of Section 149, it would mean we are adding more defence to the insurer in the statute which is neither found in the Act nor was intended to be included.
Likewise recently the Supreme Court in case of Josphine James Vs. United India Insurance Company Ltd. and Another, has held as under:
The said order was reviewed by the High Court at the instance of the appellant in view of the aforesaid decision on the question of maintainability of the appeal of the Insurance Company. The High Court, in the review petition, has further reduced the compensation to Rs. 4,20,000/- from Rs. 6,75,000/- which was earlier awarded by it. This approach is contrary to the facts and law laid down by this Court. The High Court, in reducing the quantum of compensation under the heading of loss of dependency of the appellant, was required to follow the decision rendered by three judge Bench of this Court in Nicolletta Rohtagi case (supra) and earlier decisions wherein this Court after interpreting Section 170(b) of the M.V. Act, has rightly held that in the absence of permission obtained by the Insurance Company from the Tribunal to avail the defence of the insured, it is not permitted to contest the case on merits. The aforesaid legal principle is applicable to the fact situation in view of the three judge bench decision referred to supra though the correctness of the aforesaid decision is referred to larger bench. This important aspect of the matter has been overlooked by the High Court while passing the impugned judgment and the said approach is contrary to law laid down by this Court.
In a recent decision of the Supreme Court in case of Rekha Jain Vs. National Insurance Company Ltd. and Others, again it has been held that statutory defences which are available to the insurer to contest a claim are confined to what are provided in Sub-section (2) of Section 149 of the 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds.
Admittedly, since no permission u/s 170(b) of the Motor Vehicles Act was granted to the appellant/Insurance Company, it has no right to challenge the quantum of compensation and it has got limited defence as provided u/s 149(2) of the Motor Vehicles Act, and therefore, I do not find any infirmity in the order impugned as the Insurance Company is not entitled to challenge the quantum in absence of permission u/s 170(b) of the Motor Vehicles Act.
No other point was pressed before me.
Consequently, the appeal fails and is hereby dismissed. No order as to costs.