Oriental Insurance Co. Ltd. vs Azeemuddin and others

S.P. Mehrotra and Rajesh Chandra, JJ.—Civil Misc. Delay

Condonation Application No. 271690 of 2009 has been filed on behalf of the appellant-insurance company, inter alia, praying for condoning the delay in filing the appeal.

Having regard to the averments made in the aforesaid application and its accompanying affidavit, we are satisfied that sufficient cause has been made out for condoning the delay in filing the appeal.

The aforesaid delay condonation application is accordingly allowed. The delay in filing the appeal is condoned.

Registry is directed to give appropriate number to the appeal.

Having condoned the delay in the filing of the appeal, the Court is proceeding to consider the appeal on merits.

The present appeal has been filed u/s 173 of the Motor Vehicles Act, 1988 against the award dated 18.3.2009, passed by the Motor Accidents Claims Tribunal, Gautam Buddh Nagar in Motor Accidents Claim Case No. 252 of 2006 filed by the claimant-respondent Nos. 1 to 6 in regard to the accident which took place at about 9 O''clock in the morning on 28.10.2006.

The case of the claimant-respondent Nos. 1 to 6 was that the deceased Sirajuddin was going on a Motorcycle bearing Registration No. U.P.-16L 5992, which was being driven by Azad Khan (respondent No. 9 herein). When the said Motorcycle reached at the crossing near Maripath Railway Station, a Bus bearing Resignation No. U.C.M.-0027592 (1) coming from the side of Saddullahpur and being driven in a rash and negligent manner and without blowing the horn, hit the said Motorcycle resulting in serious injuries to the said Sirajuddin. The said Sirajuddin was taken to Sarvodaya Hospital, Kavi Nagar, Ghaziabad, where he expired after about 2 hours while undergoing treatment.

Joint written statement was filed on behalf of the Driver of the Bus in question (Sushil Kumar-respondent No. 7 herein) and the owner of the Bus in question (Divine Public School-respondent No. 8 herein). It was, inter alia, stated in the said written statement that the Bus in question was insured with the appellant-insurance company. The factum of the accident was denied in the said written statement.

The appellant-insurance company also filed its written statement. It was, inter alia, admitted In the written statement that the Bus in question was insured with the appellant-insurance company. However, it was denied that the Bus in question was involved in the aforesaid accident. It was also stated in the said written statement that the Driver of the Bus in question was not having valid Driving Licence at the time of the aforesaid accident.

Joint written statement was also filed by the Driver and the Registered Owner of the aforesaid Motorcycle.

The Insurer of the Motorcycle in question (respondent No. 11 herein) also filed its written statement.

Four issues were framed by the Tribunal in the case.

Issue No. 1 was regarding factum of the accident wherein the Bus in question, namely, Bus Swaraj Mazda No. U.C.M. 0027592 (1) being driven by its Driver in a rash and negligent manner hit the aforesaid Motorcycle, resulting in serious injuries to the said Sirajuddin and his consequent death. The Tribunal held that the accident in question took place at the said place and time on account of sole mistake and negligence of the Driver of the Bus in question, which resulted in serious injuries to the said Sirajuddin, who died as a result of the said injuries on the date of accident itself.

Issue No. 2 was as to whether the accident in question took place on account of the mistake and contributory negligence of the deceased Sirajuddin. The Tribunal held that the accident in question did not take place on account of any mistake or contributory negligence of the deceased Sirajuddin, particularly when he was not driving the aforesaid Motorcycle but was sitting on the back side.

Issue No. 3 was as to whether the Driver of the Bus in question was not having a valid and effective Driving Licence at the time of the accident. The Tribunal held that the Driver of the Bus in question was having a valid and effective Driving Licence at the time of the accident. It was noted by the Tribunal that even though the appellant-insurance company was having sufficient opportunity, it did not produce any evidence to prove to the contrary.

Issue No. 4 was as to whether the claimant-respondent Nos. 1 to 6 were entitled to any compensation and if so, against which opposite party in the claim case. The Tribunal held that the claimant-respondent Nos. 1 to 6 were entitled to be awarded compensation amounting to Rs. 3,69,500 and interest @ 6 per cent per annum with effect from the date of filing the claim petition till the date of actual payment.

The Tribunal accordingly passed the said award dated 18.3.2009 awarding the aforesaid amount as compensation with interest, which was to be distributed as per the directions given by the Tribunal in the said award.

The appellant-insurance company has filed the present appeal impugning the aforesaid award.

We have heard Sri Pankaj Rai, learned counsel for the appellant-insurance company, and perused the record.

Sri Pankaj Rai has fairly brought to our attention the averment made in paragraph 22 of the affidavit accompanying the stay application filed with the present appeal, wherein it is inter alia stated that "application u/s 170 of M.V. Act was not moved before Tribunal." It is thus evident that the appellant-insurance company did not file any application u/s 170 of the Motor Vehicles Act, 1988 before the Tribunal. No permission was, therefore, granted to the appellant-insurance company as contemplated u/s 170 of the Motor Vehicles Act, 1988.

Section 170 of the Motor Vehicles Act, 1988 lays down as under :

Impleading insurer in certain cases.--Where in the course of any inquiry, the Claims Tribunal is satisfied that--

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

(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded 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 thereupoon have, without prejudice to the provisions contained in sub-section (2) of Section 149, 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.

Sub-section (2) of Section 149 of the Motor Vehicles Act, 1988. which is referred to in Section 170 of the said Act, is as under :

Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.--(1)...............

(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :

(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely :

(i) a condition excluding the use of the vehicle--

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without sidecar being attached where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or

(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.

(3) to (7)............

Reading the aforesaid two provisions together, it is evident that in case permission u/s 170 of the Motor Vehicles Act, 1988 is not granted to the insurer, the insurer will be able to contest the award of compensation against it only on the limited grounds indicated in subsection (2) of Section 149 of the said Act.

One of such grounds is that the Driver of the vehicle in question was not having a valid and effective Driving Licence at the time of the accident.

As in case the permission u/s 170 of the Motor Vehicles Act, 1988 is not obtained, the insurer will be able to contest the claim for compensation against the insurer on the limited grounds mentioned in sub-section (2) of Section 149 of the Motor Vehicles Act, 1988, therefore when an appeal is filed against the award in such a case by the insurer u/s 173 of the Motor Vehicles Act, 1988, such appeal may be considered only on the limited grounds mentioned in subsection (2) of Section 149 of the aforesaid Act.

In the present case, as noted above, it was admitted by the appellant-insurance company in its written statement that the Bus in question was insured with the appellant-insurance company. This is evident from a perusal of various paragraphs of the written statement filed on behalf of the appellant-insurance company (Annexure-2 to the affidavit accompanying the stay application filed with the present appeal), particularly paragraph 18 thereof. However, the appellant-insurance company alleged that the Driver of the Bus in question was not having a valid Driving Licence at the time of the accident.

As noted above, in deciding issue No. 3, the Tribunal held that the Driver of the Bus in question was having a valid and effective Driving Licence at the time of the accident.

Sri Pankaj Rai, learned counsel for the appellant-insurance company has not been able to show any error or infirmity or illegality in the finding recorded by the Tribunal on issue No. 3 that the Driver of the Bus in question was having a valid and effective Driving Licence at the time of the accident. In fact, as noticed by the Tribunal, the appellant-insurance company, despite having sufficient opportunity, did not produce any evidence to prove to the contrary. In the circumstances, in our opinion, issue No. 3 has been rightly decided by Tribunal. Therefore, the ground on which the appellant-insurance company may impugn the award, is not established.

Sri Pankaj Rai, learned counsel for the appellant-insurance company then submits that the Bus in question was not involved in the aforesaid accident. This plea raised by Sri Pankaj Rai pertains to the merits of the case. It is not open to the appellant-insurance company to raise the said plea as no permission u/s 170 of the Motor Vehicles Act, 1988 was obtained by the appellant-insurance company.

Sri Pankaj Rai, learned counsel for the appellant-insurance company then submits that the Bus in question was not having any valid permit. He refers to Ground No. (xii) of the Memorandum of appeal in this regard. From a perusal of the record, it is evident that no such plea was pressed by the appellant-insurance company before the Tribunal, and no issue was therefore framed on the said question before the Tribunal. The plea raised by the learned counsel for the appellant-insurance company, therefore, cannot be permitted to be raised for the first time in the present appeal.

In view of the above, we are of the opinion that the appeal filed by the appellant-insurance company lacks merit and the same is liable to be dismissed.

The appeal is accordingly dismissed. However, in the facts and circumstances of the case, there will no order as to costs.

The amount of Rs. 25,000 deposited by the appellant-insurance company while filing the present appeal, will be remitted to the Tribunal for being adjusted towards the amount payable under the impugned award.