The New India Assurance Co. Ltd. vs Shiv Kumar and Others

P.D. Mulye, J.—This appeal filed by the Insurance Company u/s 110(d) of the Motor Vehicles Act arises from an Award dated 11-7-1972 passed by the Claims Tribunal Indore in connection with a tempo accident that occurred on 25-3-1969 near the petrol pump on Bijasan Road on account of which the claimant-Respondent No. 1 Shivkumar got injured resulting in compound fracture of Tibia and Fibula bones.

Briefly stated the case of Respondent No. 1 Shivkumar at the Tribunal is that he is a young man of 20 years and from pursuing studies in XI Class. On 25-3-1969 at 4-30 p.m. when he was going from his house towards the city on the left side of the road, he was knocked down by Tempo No. M.P.F. 8514 driven by Respondent No. 3. Harish Chandra and owned by Respondent No. 2-Daryaosingh. Due to the rash and negligent driving of the tempo, the claimant-Shivkumar (Respondent No. 1) sustained injuries resulting fractures of Tibia and fibula bones, which prevented him from pursuing his studies for a period of one year. He was treated by Dr. S.K. Murti (P.W. 1) who found compound fracture of the right Tibia and Fibula, bones. Respondent No. 1 Shivkumar, therefore, claimed compensation of Rs. 30,000/- which included Rs. 20,000/- for fracture of Tibia and Fibula bones, Rs. 4,000/- for pain and sufferings and Rs. 6,000/- for loss of one year.

The Appellant as well as Respondent Nos. 2 and 3 by their separate written statements, denied all allegations including the factum of accident by the said tempo. The learned Tribunal on evidence found that the accident occurred due to the rash and negligent driving of the said tempo by Respondent-Harish chandra who was the driver of Respondent 2--Daryaosingh. The Tribunal, therefore, awarded general damages of Rs. 20,000/- for physical injuries, mental pain and sufferings. The award has also been made against the Orissa Co-operative Insurance Society Ltd., Indore with whom the said tempo at the time of the accident was insured and that insurance company is now represented by the Appellant with whom that insurance Company has merged.

It may be noted at the outset that this appeal has been filed only by the Insurance Company and not by the owner or driver of the tempo. Admittedly, before the Claims Tribunal the owner, the driver and the Insurance Company have filed their separate Written Statements and have defended their own case represented by their respective counsel.

Learned Counsel for the Appellant mainly concentrated his arguments on the quantum of compensation which according to him, considering the nature of injuries sustained by the claimant-Shivkumar is excessive and unreasonable. Being aware of the limitations prescribed by Section 96(2) of the Motor Vehicles Act, 1939, regarding the only defences that are available to the Insurance Company, the learned Counsel further urged that in view of the terms and conditions of the insurance policy the Appellant Insurance Company was also entitled to defend the case in this appeal on behalf of the insured as well as on whom no such restrictions as contemplated by Section 96(2) of the Act have been imposed. As the insurance policy was not placed on record before the Tribunal by the insured Daryaosingh nor its copy was filed by the Insurance Company, the Appellant has filed an application under Order 41, Rule 27 read with Section 151 of the CPC (I.A. No. 206 of 1973) dated 24-1-1973 seeking permission to adduce additional evidence by placing a copy of the policy on record. This application has been strongly opposed by the claimant-Respondent Shivkumar on various grounds.

It is interesting to note that though the insured-Respondent Daryaosingh has put in his appearance in this Court and is represented by his counsel, did not choose to attend the case in this Court when it was fixed for hearing nor any one else appeared on his behalf. That apart, the Appellant has not availed of the provision of law prescribed in the CPC if he wanted admission of this document. Thus, the Appellant having failed before the Tribunal to prove the terms and conditions of the policy coupled with the fact that the claimant-Respondent No. 1 Shivkumar being not aware of these terms and conditions. The Appellant at this stage, now cannot be permitted to make submissions by taking advantage of the alleged term that the insurer had authorised the Appellant to defend before the Tribunal on his behalf and the authorities reported in British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and Others, and Mangilal Vs. Parasram and Others, on which reliance was placed by the learned Counsel for the Appellant are not of assistance as they are distinguishable. The Appellant before the Tribunal had never taken up this stand that he was authorised under the terms of the Insurance Policy to defend on behalf of the insured nor any such ground has also been taken in the memo of appeal. On the contrary, the insured as well as the Appellant have by filing separate written statements independently defended their respective contentions.

That apart Section 110-C (Section-A) provides that where in the course of any inquiry, the Claims Tribunal is satisfied that (1) there is collusion between the person making the claim and 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 there upon 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. None of the conditions as provided in this section exists in the present case. This sub-section empowers an insurer to contest the claim for compensation only if these conditions are satisfied. Unless these conditions are satisfied, the insurer cannot contest the claim on any ground other than those specified in Clauses (a) to (c) of Sub-section (2) of Section 96 of the Act. This view gains support from the decisions reported in Northern India General Ins. Co. Ltd. v. L. Krishnan and Ors. 1972 A.C.J. 420 and National Insurance Co. Vs. Magikhaia Das (After him) Mst. Laxmi Dibya and Others, . Consequently, the application filed by the Appellant (IA. No. 206 of 1973) has to be rejected and there being no proof of the terms and conditions of the alleged insurance policy, the Appellant''s application IA. No. 206 of 1973) deserves to be and is hereby rejected.

Next it was urged that the quantum of compensation awarded to the claimant-Respondent--Shivkumar is excessive and unreasonable. It was submitted that the medical evidence of Dr. Moorthy (PW-1) shows that the fracture has united with a slight angulation and his evidence further indicates that there is no disability except that the Respondent-claimant Shivkumar will not be able to run or play games like football etc. and due to the flatfoot he may at a later stage be prevented from joining the police or the Army on account of this injury, the compensation awarded to the claimants-Respondent--Shivkumar deserves to be reduced and as it is not in accordance with the principles laid dawn in the decisions reported in Vinod Kumar Shrivastava Vs. Ved Mitra Vohra and Others, and Dharam Vir Kapur Vs. State of Himachal Pradesh and Others, , but in view of the fact that considering the defences available to the Insurance Company, the Appellant is not entitled to challenge the quantum of compensation, no interference in the discretion exercised by the learned Member while awarding the compensation is called for in this appeal.

Being faced with this difficulty, it appears that the insured--Respondent. Daryaosingh has filed an application (IA. No. 203 of 1973) dated 24-1-1973 under Order I, Rule 10(2) read with Section 151 CPC praying that he may be transposed as a co-Appellant. However, this application also deserves to be rejected; on the short ground that it is barred by time as the limitation for preferring the appeal has already expired on 15-12-72 and consequently none appeared on his behalf to press the same. Even otherwise, the Insurance Policy not being on record and its terms and conditions have not been duly proved, in absence of any appeal filed by him, the Respondent--Daryaosingh cannot be transposed as an Appellant and this application is also, therefore, rejected.

In the result, this appeal being not maintainable, question of interfering in the quantum of compensation does not arise. The appeal is, therefore, dismissed. However, considering the facts and circumstances of the case parties are directed to bear their respective costs of this appeal.