New India Assurance Co. Ltd. vs Shankar Chakraborty and Another

G.B. Patnaik, J.—The insurer is the appellant in an appeal u/s 110-D of the Motor Vehicles Act challenging the quantum of compensation awarded by the Tribunal. On an application filed u/s 110-A of the Motor Vehicles Act by the injured claimant, the Tribunal has awarded a compensation to the tune of Rs. 96,000/-.

It was alleged in the claim petition that the claimant who was twenty two years old was doing his business and was earning about Rs. 700/- per month and on 23.9.1985 at about 1.30 P.M. while he was going on a motor cycle on the extreme left of the road, the mini truck bearing registration No. HRL. 4250 being driven in a rash and negligent manner came with high speed and knocked down the applicant who fell down from the motor cycle and sustained compound fracture on his right leg. He was immediately removed to the V.S.S. Medical College Hospital, Burla, where he has undergone operation. Then he was removed to the Nursing Home, Cuttack. Still he has not been fully cured.

The owner of the truck remained ex parte. The insurer, however, contested the proceeding by filing a written statement. The insurer even denied to have issured the vehicle in question and had no knowledge about the accident and accordingly denied its liability.

The Tribunal framed three issues and on consideration of the materials placed before him on issue No. 1 came to the conclusion that the accident resulting in the injuries to the applicant took place due to rash and negligent driving of the Mini truck. On issues 2 and 3 which were taken up together, the Tribunal found that the claimant was aged 22 years on the date of the accident and he was earning Rs. 700/- per month. While calculating the quantum of compensation the Tribunal found that the claimant had sustained compound fracture in his right femur with compound communited fracture of both bones of the right leg. Further he had also suffered grievous punctured wounds over the right thigh and one lacerated injury on lateral aspect of his right foot. He had been admitted in the V.S.S. Medical College Hospital, Burla on 23.9.1985 and was discharged on 20.10.1985 after necessary operation in respect of the compound fracture. Then he was treated in the Nursing Home by Dr. Mustaque Ali and there had been fixing up nails on his right leg and plastering of his leg and regular dressing had been advised. He was again admitted in the Nursing Home from 6.2.1986 to 13.2.1986 and from 11.4.1986 to 23.4.1986 from 28.7.1987 to 10.8.1987 and the opinion of the doctor is that the efficiency of his right leg was reduced to 25 to 30 percent. The Tribunal determined the loss of earning capacity for the rest of life and awarded compensation to the tune of Rs. 63,340/- and deducted 20% towards lumpsum grant and fixed the same at Rs. 51,072/-. So far as the medical expenses are concerned, the Tribunal awarded Rs. 24,000/-. Towards the future treatment the Tribunal awarded a sum of Rs. 5000/-. For repairing the motor cycle, the Tribunal awarded Rs. 2000/- and towards mental shock, pain, suffering and loss of pleasure a sum of Rs. 10,000/- was awarded. Thus the Tribunal determined the total compensation at Rs. 96,000/-. far as the liability of the insurer is concerned, the Tribunal found that the seizure list indicated that the vehicle had been insured with the New India Assurance Company Ltd. under Policy No. 173708 and even though the claimant''s Advocate gave a notice for production of the policy in question but the insurer did not make any attempt to produce the same and in fact, the validity of the insurance of the vehicle was not at all challenged in course of cross-examining the claimant''s witnesses. Accordingly the Tribunal directed the insurer to pay the entire compensation in question. The insurer has, therefore, preferred the present appeal challenging the quantum of compensation.

Though Mr. Roy appearing for the appellant in course of hearing of the appeal has urged that in view of the stand taken by the insurer that the vehicle has not been insured with the appellant, the insurer-appellant should not have been made liable but the said contention cannot be accepted in view of the findings of the Tribunal which clearly indicate that not only the insurer on being asked did not produce the policy but also did not put any question to the claimant''s witnesses in the cross-examination. That apart, the seizure list indicates that the vehicle had been insured with the appellant. The said contention, therefore, does not deserve any consideration.

Mr. Roy, then urges that the quantum of compensation awarded by the Tribunal is grossly excessive and must be scaled down.

The learned Counsel for the respondent No. 1, on the other hand, contends that the insurer is entitled to raise only the points which could be raised by him before the Tribunal, namely, grounds ascertained in Section 96(2) of the Motor Vehicles Act. Therefore, quantum not being one of those grounds could not at all be assailed by the insurer. According to Mr. Roy the learned Counsel for the appellant, the insured having remained ex parte and in view of the provisions contained in Section 110-C(2-A) the insurer gets the right of assailing the award on all the grounds which were available to the insured and therefore, the insurer would assail the award on the question of quantum. The rival contentions require a careful examination of the provisions of Sections 96(2) and 110-C(2-A) of the Motor Vehicles Act and a few decisions cited at the bar.

An appeal against an award of an Accidents Claims Tribunal is provided u/s 110-C of the Motor Vehicles Act. Section 96(1) of the Motor Vehicles Act provides that it is the duty of the insurer to satisfy the judgments against the persons insured in respect of third party. Sub-section (2) of Section 96 provides that no sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless the insurer had noticed through the Court of the bringing of the proceeding and after notice being issued the insurer would be entitled to defend the action on the ground mentioned in Clauses (a), (b) and (c). A combined reading of Sections 96(2) and 110-D of the Act would make it clear that in an appeal against the award of a Tribunal the insurer is entitled to raise only the plea which was raised by the insurer before the Tribunal u/s 96(2) of the Act and the appeal would not be maintainable on the grounds which could not be raised before the Tribunal by the insurer. This question has been concluded by a Full Bench decision of this Court in the case of National Insurance Co. v. Magikhala Das AIR 1976 S.C. 175. There cannot be any dispute with the aforesaid proposition of law. But the further question that arises for consideration is whether Mr. Roy''s contention that in view of Section 110-C(2-A), the insured having not contested the claim, the insurer can contest the appeal on all the grounds as were available to the insured is at all sustainable. To examine the correctness of the aforesaid proposition, it would be necessary to notice the provisions of Section 110-C(2-A). The aforesaid provision is extracted hereinbelow in extenso for better appreciation of the point in issue:

110-C(2-A): Where in the course of any inquiry, the Claims Tribunal is satisfied that-

(i) there is collusion between the person making the claim and the person against whom the claim is made, or

(ii) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.

It may be noticed that this provision was not there initially in the statute but was inserted by Act 56 of 1989 with effect from 2.3.1970. The said provision empowers the insurer to contest the claim for compensation on all or any of the grounds which are available to the person against whom the claim is made, if two conditions are satisfied (i) collusion between the person making the claim and the person against whom the claim is made or the person against whom the claim is made has failed to contest the claim; and (ii) the Claims Tribunal for reasons to be recorded by it in writing has directed that the insurer be impleaded as a party to the proceeding. Unless the above conditions are satisfied the insurer cannot contest the claim on any of the grounds other than those specified in Clauses (a) to (c) of Sub-section 2 of Section 96. This conclusion of mine is supported by the decisions of a learned Single Judge of this Court in the case of Orissa Cooperative Insurance Society Ltd. v. Adar Dai and Ors. 1976 A.C.J. 189, a Bench of the Mysore High Court in the case of Northern India General Ins, Co. Ltd. v. L. Krishnan and Ors. 1972 A.C.J. 420 and the Full Bench decision of this Court in the case of National Insurance Co. Vs. Magikhaia Das (After him) Mst. Laxmi Dibya and Others, . Mr. Roy places before me a recent decision of Hon''ble Justice Pasayat, J. in the case of New India Assurance Co. Ltd. Vs. Bhagaban Bhuyan and Another, where the learned Judge had observed that where the conclusions of the Tribunal were monstrous or illusory to shock the conscience of the Court, its power for interference remained undeterred and though in normal cases if the Court found that there was effective participation by the owner of a vehicle, it might not be permissible for the insuer to assail the quantum as awarded. But what is effective participation is dependent on several factors and if there is a mere show of participation, the Court can consider it to be non-effective participation. Though this decision supports Mr. Roy''s contention with regard to the maintainability of the appeal at the instance of the insurer on grounds not covered by Sub-section (2) of Section 96 but the learned Judge has not noticed the provision of Section 110-C(2-A) nor the Full Bench decision of this Court referred to supra and the other decisions of this Court which have been noticed by me earlier. In view of statutory provisions contained in Section 110-C(2-A) unless the said provisions are satisfied, and the insurer would not be entitled to challenge the award on grounds other than those mentioned in Clauses (a) to (c) of Section 96(2). According to Mr. Roy the fact that the owner did not contest would satisfy the pre-condition of Section 110-C(2-A) and, therefore, the insurer would have the right to challenge the quantum of compensation. I am unable to accept this contention of the learned Counsel for the appellant. A bare reading of Section 110-C(2-A) makes it clear that not only the Tribunal would be satisfied with regard to the existence of the conditions mentioned in Clauses (i) and (ii) but also he has to record reasons in writing that the insurer should be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. In the case in hand, there has been no order of the Tribunal recording reasons in writing in terms of Section 110-C(2-A). A Division Bench of Kerala High Court recently considered this question in the case of United India Insurance Co. Ltd. v. Surendra Nair 1990 (2) A.C. 109. It was held that even if the insurer was already a party to the claim petition having been impleaded u/s 96(2), such insurer must obtain the requisite permission from the Tribunal to contest the claim on all or any of the grounds which the insured would have taken in view of Section 110-C(2-A) and on such an application being made, the Tribunal had to consider the same on merit and had to pass appropriate orders in writing enabling the insurer to contest the same on the grounds available to the insured. In the absence of any such permission, the insurer is not entitled to contest the claim on the grounds which are available only to the insured. In the aforesaid premises, no such permission within the ambit of Section 110-C(2-A) being available on record permitting the insurer-appellant to contest the claim on the grounds which are available to the insured, it is not open for the appellant to challenge the quantum of compensation. Since that is not a ground within the ambit of Clauses (a) to (c) of Sub-section (2) of Section 96. In the aforesaid premises, I am of the opinion that the appeal does not merit any consideration and the name is, accordingly, dismissed.