Oriental Insurance Company Ltd. vs Shama Devi and Others

Appellant is the insurer of the offending Motor Vehicle (Tata Tipper) bearing Registration No. 7179 JK02G owned by respondent no. 3 The

short question for determination is whether the appellant insurance company can file the appeal against the award of the Motor Accident Claims

Tribunal and get the quantum of compensation reduced when the insured has not filed the appeal and the appellant had not moved the Tribunal

under Section 170 of the Motor Vehicles Act of 1988 (hereinafter to be referred as Act) for getting the right to contest the proceedings on merits.

It may be stated that respondent no. 1 filed claim petition no. 183/99 before the Motor Accident Claims Tribunal' Jammu for the injuries suffered

on account of motor vehicle accident of his daughter Shama Devi, aged three and half years. The accident occurred on 1761997 at a place known

as ""Tali Morh, Miran Sahib, Jammu"". The offending vehicle was being driven in a rash and negligent manner by respondent no. 2 from Jammu side

towards R.S. Pura. The vehicle had served on the wrong side of the road and hit Shama Devi (claimant) who received severe injuries including a

crushing wound on the left leg which caused it amputation in the hospital. The petition was filed through her father before the Tribunal though the

owner and the driver were served, yet they did not appear and were proceeded exparte. Compensation in the amount of Rupees Twenty Lakhs

was claimed under various heads. In its written statement, the appellant denied the accident. The liability to reimburse the insured was denied on

the plea that a condition of the insurance policy had been violated as the driver at the time of the accident was not holding an effective driving

licence. It was also pleaded that there was an option clause in the policy of insurance (policy no. 2) which was enabling the insurer to take over the

defence to contest claim petition in the name of insured (respondent no. 3).

On the pleadings the following four issues were raised :

Whether accident involving injuries to the petitioner have occurred due to the rash and negligent driving of the offending vehicle no. JK02G7179

by respondent no. 1 on 1761997 ? OPP

In case issue no. 1 is held determined in affirmative, what is the amount of compensation payable to the petitioner and by whom ? OPP

Whether the driver of the offending vehicle was not holding a valid driving licence and the offending vehicle was being driven against the terms

and conditions of the insurance policy ? OPR3

Relief?

The Tribunal decided issues no. 1 and 2 in favour of respondent no. 1. Issue no. 3 was decided against the appellant. While deciding issue no. 4

the Tribunal awarded an amount in the sum of rupees 3,62.600/ in favour of respondent no. 1 with 12% interest except on Rs. 30.000/ being

expenses of future operation and Rs. 57.600/ being future loss of income from the date of filing of the claim petition till realisation. The

compensation was awarded under ten different heads enumerated below :

i) For future loss of income Rs. 57.600/

ii) For inconvenience hardship etc 50.000/

iii) Expd. on attendant 70.000/

iv) Expd. on wheel chair 15.000/

v) For loss of marriage prospect 25.000/

vi) For expenses on special diet 15.000/

vii) For expenses on transport 20,000/

viii) For expenses on medicines 30.000/

ix) For expenses on other operations including

medicines, transport and special diet 30,000/

x) For pain and suffering and loss of amenities of life 50.000/

...................................

Rs. 3,62,600/

The appellant for reasons best known to it did not think it fit to apply under Section 170 of the Act forgetting written permission of the court on

proof of relevant conditions mentioned in the section for contesting the proceedings in merit, although its counsel cross examined the witnesses on

every aspect, produced by respondent no. 1. It did not produce any witness respondent no. 1 had not objected the appellant joining issues on

merits when crossexamination was conducted.

Appellant has challenged the award by pleading that Tribunal erred in law by awarding the compensation under overlapping heads in as much as

it has awarded Rs. 50.000/ for inconvenience and hardship and it also allowed an amount of Rs. 50.000/ for pain and suffering and loss of

amenities of life as also Rs. 57,600/ for future loss of income. This was a duplication of heads under general damages. The Tribunal did not follow

the dictum of the Apex Court spelled out in different judgments while assessing the damages, but made the awards liberally even under the head

special damages when there was no evidence to establish them. Compensation in the sum of Rs. 70,000/ was awarded as expenditure of attendant

and transport expenses were awarded to the tune of Rs. 20,000/ besides the expenses incurred on medicines in the amount of Rs. 30,000/when

there was no proof of such expenditure. Just and fair compensation should have been in the amount of rupees one lakh only.

In order to adjudge the competency of the appellants to file the appeal, I may profitably refer to Section 170 of the Act which reads 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 person 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 proceedings and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in subsection (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"".

Mr. Basotra, counsel of the claimant at the outset contended that appeal is not maintainable as the case is governed by the ratio decidendi of the

case of Shankarayya and Another vs. United India Insurance Co. Ltd. and Another. (1998 ACJ, 513). He urged that unless the procedure

prescribed under Section 170 of the Act is followed, the Insurance Company cannot have a wider defence on merits than what is available to it by

way of statutory defence. In Shankarayya's case (supra) claimants themselves had joined Insurance Company as one of the respondents in the

claim petition, but that was done with a view to thrust the statutory liability on account of the contract of Insurance. There was no order of the

Court permitting the Insurance Company to avail a larger defence on merits on being satisfied on the conditions mentioned in Section 170. The

Insurance Company was not permitted to file the appeal on merits.

The learned counsel has also cited the case of Chinnama George and Others vs. N.K. Raju and Another (2000 4 SCC 130). In this case, the

Apex Court has held that the Court must give effect to the real purpose of the provisions of law in respect of award of compensation to extend

claims. It cannot permit the Insurer the right to defend or appeal on grounds not available to it under law. The Insurer had filed the appeal on merits

by associating the owner as a coappellant. This practice was depreciated by stating that the insurer by associating the owner or the driver in the

appeal when the owner or the driver is not an aggrieved person, cannot be allowed to mock at the law, which prohibits the insurer from filing any

appeal except on the limited grounds on which it could defend the claim petition. This principle was emphasized in para no. 6 of the judgement and

the relevant portion is reproduced :

We have to give effect to the real purpose to the provisions of law relating to the award of compensation in respect of the accident arising out of

the use of the motor vehicle and cannot permit the insurer the right to defend or appeal on grounds not permitted by law by a backdoor method.

Any other interpretation will produce unjust results and open the gates for the insurer to challenge any award. We have, no doubt a purposive

approach which would not defeat the broad purpose of the Act. The court has to give effect to true object of the Act by adopting a purposive

approach"". 9. Mr. H.S. Choudhary, the counsel of the appellant has vehemently controverted the submissions by urging that purpose of the Act is

to give just compensation to the victims of the accident caused by motor vehicles. Whenever duplication of heads in the award of the Tribunal is

found, the insurer gets the right to file the appeal as was done in the case of New India Assurance Company Ltd. vs. M.N. Sheeja and Others

91997 ACJ 1072). In that case the Tribunal has awarded Rs. 2,62,000/ as compensation to a 9 years old girl whose left leg was amputated.

Neither the driver nor the owner of the vehicle had filed the appeal. The insurer filed the appeal on the ground that its liability was limited. Claimant

filed separate appeal for enhancement of compensation. The appellate court had found duplication of heads in the award of the Tribunal and in

exercise of its powers under 0.41 R 33 CPC reduced the award to Rs. 1,62,000/ This case was decided by the Division Bench of the Kerala

High Court by holding that insurance company cannot challenge the quantum of compensation. The insurer had filed the appeal on the basis that its

liability was limited. The court showed the indulgence when it was found that quantum was blown out of proportion. Aid was sought to modify the

award from Order 41 Rule 33 CPC. It was not considered whether sections 149 and 170 of the Act could be over looked. Motor Vehicles Act is

a special place of legislation and right of appeal is specially granted under Section 173 of the Act to any person aggrieved by an award of a claims

Tribunal. The insurer is granted the right of appeal under Section 149 of the Act. The appeal is filed against the award and not against any decree

passed by any court or from an order passed in that manner. In other words, this is not an appeal filed under Section 96 of Code of Civil

Procedure. On this view of the matter, Order 41 Rule 33 CPC is not attracted. Section 149 of the Act casts a statutory duty on the insurer to

satisfy judgments and awards against persons insured in respect of third party risks. The insurer can defend itself in an action before the Tribunal on

the grounds specified under subsection (2) of Section 149 and they are :

a) that there has been a breach of a specified conditions 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 underwhich the vehicle is used, where the vehicle is a transport vehicle or

d) without side car 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"".

In the instant case, the appellant had taken the statutory defences in the Tribunal by pleading that the driver of the offending vehicle was not

possessing a valid driving licence and the insured had breached the conditions of the insurance policy. The benefit of option clause contained in the

policy of insurance was also claimed. Issue No. 3 was raised on these submissions and the burden to prove the issue was cast on the appellant.

No evidence was led in support of the allegations and burden not discharged. The insured and the driver had been proceeded exparte and under

clause (b) of subsection (2) of section 170 of the Act the insured had failed to contest the claim. The appellant could apply before the Tribunal

forgetting permission to contest the proceedings on merits. The Apex Court in Shankarayy's case as well as in Chinnama George's case (supra)

has emphasised that an insurance company cannot wider its right to file the appeal outside the parameters of sections 149 and 170 of the Act.

There cannot be any backdoor entry and what cannot be done directly cannot be done indirectly. In this view of the matter, provisions of Order

41 Rule 33 CPC can have no application to the proceedings and the argument advanced is not tenable under law

In the case of R.D. Hattangadi vs. Pest Control (India) Pvt Ltd. and Others (1995 ACJ 366] the Apex Court held that ""so far as non

pecuniary damages are concerned, they mayinclude (i) damages for mental and physical shock, pain and suffering already suffered or likely to be

suffered in future (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. walk, run or sit (iii) damages

for the loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened (iv) inconvenience, hardship,

discomfort, disappointment, frustration and mental stress in life"".

Mr. Basotra has contended that even on facts there is no overlapping of any of the claims awarded under different heads and they are within

the specified parameters as laid down by the Apex Court. That special damages under the heads as medical expenses and expenses to be incurred

on attendant in future are concerned they have been granted on the basis of the evidence led by the claimant and in the absence of rebuttal

evidence the findings cannot be disturbed. These are the factual matters and could be considered in case appeal was found to have been filed by a

competent person. The appeal as such, has been filed by incompetent person and is not maintainable. The victim of the accident is a tender girl of 3

1/2 years and amputation of her left leg will be an impediment for proper marriage alliance. She is now a wreck of human being, suffering from an

injury which has made her totally dependant on others. Opportunities to lead a normal life are now denied to her by her physical condition. At the

age of 3 1/2 years everything that life need for her was taken away from her. She will always be tormented by the realisation of her helplessness.

The argument of Mr. H.L. Choudhary, counsel for the appellant that compensation in the amount of rupees one lakh will meet the ends of justice is

an argument of despair. However, it has lost its relevancy when advanced on behalf of an incompetent appellant.

In the result the appeal is dismissed and no order as to costs.