Oriental Insurance Co. Ltd. vs Member, Motor Accident Claims Tribunal

This appeal is directed against the judgment and Award dated 23.02.95 passed by the Learned Member, Motor Accident Claims Tribunal, Kamrup, Guwahati, whereby the Learned Tribunal awarded a sum of Rs. 3,19,900/- as compensation to the claimants on death of Badar Ali.

It would appear from the pleadings that Badar Ali who was working as Sahayak in Thermal Power Station. Chandrapur died of an accident on 15.10.1992 when the vehicle No. ASZ-1355 in which he was returning back after official duty met with an accident. It is further alleged that the said vehicle was driven in a rash and negligent manner by the driver. At the time of his death, he was 31 years old and was drawing a salary of Rs. 2,726/-per month. He left behind his wife, old parents and four minor children. O.R No. 1 and 2, i.e. the Assam State Electricity Board and M/s Oriental Insurance Company filed written statement. From the written statement filed on behalf of the Electricity Board, it would appear that the brake of the vehicle failed while returning after distribution of water in the Bagdhara Hills Area. The driver cautioned the deceased and other Sahayaks not to open the door, but Badar Ali who was sitting by the side of the door tried to jump out in panic from the vehicle and fell below the truck and died before he could be shifted to the Gauhati Medical College Hospital.

The Insurance Company in their written statement denied that this particular vehicle was insured with them and that it was involved in any accident. They also challenged the quantum of compensation claimed by the heirs of the deceased.

The Learned Tribunal on conclusion of the proceeding came to the finding that the said truck was insured with the Insurance Company and that Badar Ali died out of the accident that occurred on 15.10.1992. In total, for the seven claimants, the Learned Tribunal assessed the compensation at Rs. 3,19,900/-.

This Court vide order dated 15.3.1999 observed that the matter relating to the maintainability of the appeal is required to be ahead. Accordingly the learned Counsels for the Appellant and the Respondents argued before this Court.

We have considered the impugned award with reference to the evidence on record. We are convinced that there was failure of the brake system of the vehicle and Badar Ali, out of panic, tried to come out and fell down below the truck and died almost instanteously. The Learned Tribunal has also came to the finding that the said truck was insured with the Insurance Company as alleged and further observed that the Insurance Company should not have tried to the claim taking advantage of a typographical error in the description of the registration number of the truck in the claim petition. Considering the evidence on record, we find that there is no error of judgment on these two point. It would further appear that the Learned Tribunal computed the amount of compensation not strictly in accordance with the formulae given in the Second Schedule to the Motor Vehicles Act, 1988, hereinafter referred to as "the Act". But considering the age of the deceased and his monthly income, we find that the amount of compensation calls for no interference. Although this Court is not going to decide the appeal on merit. However, the above observation is made in order to rule out possibility of any serious miscarriage of justice.

Section 149(2) of the Act which specifies the ground on which a Insurance Company is entitled to challenge the award. The provisions of Section 149(2) shows that the grounds taken by the Insurance Company in this appeal does not attract any of the permissible ground. That apart, in order to reserve the right to contest and challenge the claim, one of the two conditions laid down in Section 170 of the Act has to be satisfied. In the instant case, the Executive Engineer, A.S.E.B. contested the claim. There is nothing on record to show that there is a collusion between the claimants and the Executive Engineer concerned. The Insurance Company simply filed a written statement. No order in writing was obtained as per provision of Clause (b) of Section 170. Therefore, this appeal preferred by the Insurance Company cannot be said to be maintainable for want of ingredients to attract provisions of Section 149(2) and 170 of the Act.

The learned Counsel for the Insurance Company has referred to a decision reported in AIR 1982 Jammu and Kashmir 105. In this case, the Jammu and Kashmir High Court held that an insurer cannot resist the claim before the Tribunal or challenge the award of the Tribunal in appeal on grounds other than those enumerated in Section 96(2) of the Act, (old Act) except where the insurer has reserved a right in the policy of the insurance to defend the claim. In the instant case, a copy of the policy was produced before this Court at the time of hearing. Nothing appears to be there in order to show that such a right was reserved in the policy as one of the conditions.

In Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, it has been held that a Insurance Company when impleaded as a party by the Court can be permitted to contest the proceedings on merit only if the conditions precedent mentioned in Section 170 are found to be satisfied and, for that purpose, the Insurance Company has to obtain a reasoned order in writing from the Tribunal. It has been further held that unless this procedure is followed, the Insurance Company cannot have a wider defence on merit than what is available to it by way of statutory defence. The ratio laid down in this case in unambiguous term augment the view expressed herein before that one of the two conditions specified in Section 170 has to be satisfied and an order in writing is a precondition to enable Insurance Company to contest the case on merit. Relying on the decision of the Apex Court in Shankarayya (supra), it can be said unhesitatingly that the instant appeal is not maintainable.

In view of the decision of the Apex Court referred to above, the ratio laid down in United India Insurance Co. Ltd v. Member, Motor Accident Claims Tribunal, Lakhimpur (1992) 2 GLR 391 is not being adverted to.

The discussion above leads to the inevitable conclusion that the appeal is not maintainable. Hence, the appeal is dismissed.