Oriental Insurance Co. Ltd. vs Jan Mohd. and Others

J.P. Singh, J.—Oriental Insurance Co. Ltd. has filed this appeal u/s 173 of the Motor Vehicles Act, 1988, questioning the Motor Accidents

Claims Tribunal, Bhaderwah's award of 28.5.2005, awarding an amount of Rs. 2,44,000 (rupees two lakh forty-four thousand) to respondent Jan

Mohd. along with interest at the rate of 9 per cent from the date of filing of the claim petition till realisation of the awarded amount, as

compensation for the death of his son Mudasar Hussain, who had died in a motor vehicular accident on 5.6.2000 because of the rash and negligent

driving of bus bearing registration No. JK 02-D 5355 at Manoti Gandoh, District Doda.

Abandoning rest of the grounds taken in the memo of appeal, learned Counsel for the appellant has restricted his challenge to the award of the

Tribunal only insofar as it pertains to the quantum of compensation awarded by the Tribunal.

Respondent No. 1's counsel, on the other hand, submits that appellant cannot question the award of the Tribunal regarding quantum of

compensation because it had not sought permission of the Tribunal to contest the award on grounds other than those which are available to an

insurer u/s 149(2) of the Motor Vehicles Act, 1988.

Learned Counsel for the appellant submitted that even if permission to contest the award on grounds other than those which are available to an

insurer u/s 149(2) of the Motor Vehicles Act, 1988, had not been granted by the Tribunal to the appellant, it could still maintain an appeal because

the Tribunal had permitted it to cross-examine the claimant's witness without any restriction thereby impliedly permitting it to contest the claim of

respondent No. 1. Reliance in support of the submission has been placed on a single Bench judgment of this Court in New India Assurance Co.

Ltd. and Others Vs. Sandeep Dhar, . Learned Counsel further submitted that even if the appeal was not maintainable, this Court could still exercise

jurisdiction under Article 226/227 of the Constitution of India and u/s 103/104 of the Constitution of Jammu and Kashmir to see as to whether

Claims Tribunal's award was unsustainable on the admitted facts and the law laid down by Hon'ble Supreme Court of India.

I have considered the submissions of learned Counsel for the parties.

Relying upon a Division Bench judgment of this Court in National Insurance Co. Ltd. Vs. Bashir Ahmad Gojri and Others, and a Division Bench

judgment of Allahabad High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Rajendra Kaur 1989 ACJ 961 (Allahabad), it has been held in New

India Assurance Co. Ltd. and Others Vs. Sandeep Dhar, , that as the claimants had not raised any objection before the Tribunal that the appellant

insurance company cannot resist the claim except the grounds available to it u/s 149(2) of the Act, so the Tribunal shall be deemed to have granted

permission to contest the claim petition on the grounds other than those available to an insurer u/s 149(2) of the Act. Insurer's right to appeal, in

these circumstances, was thus upheld by the court.

I have gone through Division Bench judgments referred in New India Assurance Co. Ltd. and Others Vs. Sandeep Dhar, as also the judgment

delivered in Dr. Sandeep Dhar's case.

These judgments, do not refer to the law which has been laid down by Hon'ble Apex Court of India in National Insurance Co. Ltd., Chandigarh

Vs. Nicolletta Rohtagi and Others, , where, dealing with the question of availability of right of appeal to an insurer who had not sought permission

u/s 170 of the Motor Vehicles Act, had been dealt with as follows:

(14) Sub-section (7) of Section 149 of 1988 Act clearly indicates in what manner Sub-section (2) of Section 149 has to be interpreted. Sub-

section (7) of Section 149 provides that no insurer to whom the notice referred to in Sub-section (2) or Sub-section (3) has been given shall be

entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such

judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the

reciprocating country, as the case may be. The expression 'manner' employed in Sub-section (7) of Section 149 is very relevant which means an

insurer can avoid its liability only in accordance with what has been provided for in Sub-section (2) of Section 149. It, therefore, shows that the

insurer can avoid its liability only on the statutory defences expressly provided in Sub-section (2) of Section 149 of the 1988 Act. We are,

therefore, of the view that an insurer cannot avoid its liability on any other grounds except those mentioned in Sub-section (2) of Section 149 of the

1988 Act.

(15) 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 defences to the insurer in

the statute which is neither found in the Act nor was intended to be included.

(16) For the aforesaid reasons, we are of the view that the 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 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.

Article 141 of the Constitution of India provides that the law declared by the Hon'ble Supreme Court shall be binding on all courts within the

territory of India.

Following the mandate of the Constitution, I would accordingly hold that the appellant does not have any right to file the appeal to question the

quantum of compensation awarded by the Tribunal in the absence of the permission granted to it by the Tribunal to contest the award on grounds

other than those which are available to an insurer u/s 149(2) of the Act. First submission raised by learned Counsel for the appellant, therefore,

fails and is accordingly rejected.

I will now examine the second contention of learned Counsel for the appellant as to whether the extraordinary jurisdiction of the court can be

invoked by the appellant who does not have any right to appeal against the judgment in terms of the statute which governs the lis.

Section 173 of the Motor Vehicles Act provides an insurer the right to file an appeal against an award of the Tribunal before the High Court on

limited grounds available to it u/s 149(2) of the Act. The appeal being a creation of the statute may not thus permit the insurer to take any plea

other than those which are available to an insurer u/s 149(2) of the Act. The right of the insurer being limited cannot thus be enlarged by seeking

exercise of jurisdiction under Article 226/227 of the Constitution of India, or for that matter, u/s 103/104 of the Constitution of Jammu and

Kashmir. Where a statutory remedy to file an appeal has been provided for, it may not be open to the High Court to exercise its extraordinary civil

writ jurisdiction. The supervisory jurisdiction conferred on the High Courts under Article 226 of the Constitution is confined only to see whether

any inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much-less an

error of law.

""In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the Tribunal. It

is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the

inferior court or Tribunal purports to have passed the order or to correct error of law in the decision"", was so held by Hon'ble Apex Court of India

in Sadhana Lodh Vs. National Insurance Company Ltd. and Another, . This view has been reiterated by the Supreme Court in Bijoy Kumar

Dugar Vs. Bidyadhar Dutta and Others,

Section 104 of the Constitution of Jammu and Kashmir, though confers power of superintendence and control of subordinate courts in the

High Court, yet this provision does not confer any such power of superintendence over the Tribunals.

Going by the law laid down by the Hon'ble Apex Court of India in the above quoted two judgments and keeping in view the provisions of

Section 104 of the Constitution of Jammu and Kashmir, I am of the opinion that appellant insurance company cannot invoke this Court's

extraordinary civil writ jurisdiction to question the award when it had abandoned the grounds taken in the memo of appeal to contest the claim of

the respondents on grounds other than those available to it u/s 149(2) of the Motor Vehicles Act.

This appeal has, therefore, been rendered incompetent which is accordingly dismissed.

Amount deposited by the appellant in this Court, along with interest accrued thereon, shall be released in favour of respondent No. 1 on his

proper identification in accordance with the award.