United India Insurance Co. vs Smt. Vidhya Devi and Others

Kailash Gambhir, J.—The appellant, United India Insurance Co. Ltd., insurer of the offending vehicle has preferred the present appeal challenging the impugned order dated 05.11.2007 passed by the learned MACT. The impugned award has arisen out of the claim petition filed by respondent Nos. 1 to 5 against the appellant & respondent Nos. 6 to 9, claiming compensation for the death of Shri Kamlesh Kumar Sharma.

The brief facts which are necessary for deciding the present appeal inter alia are that respondent Nos.1 to 5 are the legal heirs of deceased Shri Kamlesh Kumar Sharma who had died on 16.06.1999. On 16.06.1999 at about 13:15 hrs. the deceased Shri Kamlesh Kumar Sharma along with Sh. Surender Vashnav & respondent nos. 1 to 4 was travelling as a tourist while going from Madurai, Tamil Nadu to Kanyakumari in a vehicle bearing registration No. TN 65 A 9559 driven in a rash and negligent manner hit against a Max Van in which they were travelling. As a result, Shri Kamlesh Kumar Sharma received fatal injuries and succumbed to those injuries.

I have heard learned Counsel for the parties at considerable length and have perused the award.

The appeal is liable to be dismissed at the admission stage itself as the very maintainability of the appeal is in dispute.

The appellant never made any application and thus failed to take over the defence of the owner and driver as envisaged u/s 170 of the Motor Vehicles Act and, therefore, it is debarred from challenging the impugned award so as to assail the findings of the Tribunal on the quantum of compensation.

Mr. K. Sunil, counsel appearing for the respondents has taken a preliminary objection to the very maintainability of the present appeal on the ground that the appellant cannot assail the findings of the Tribunal on the quantum of compensation as determined by the Tribunal. Counsel contends that the appellant had not made an application to take over the defence of the owner and driver as envisaged u/s 170 of the Motor Vehicles Act and, therefore, is debarred from challenging the impugned award so as to assail the findings of the Tribunal on the quantum of compensation.

Mr. A.K. De, counsel for the appellant vehemently disputes this position and contends that the insurer cannot be rendered remediless especially in a case where the Tribunal has awarded an excessive amount of compensation in favour of the claimants ignoring all basic principles of law for the award of compensation. Counsel for the appellant has also placed reliance on the judgment of the Supreme Court reported in New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and Others, . to contend that the Apex Court had interfered to lower down the compensation amount even in a case where the insurer had not taken any permission from the Court u/s 170 of the Motor Vehicles Act.

The counsel for the appellant also drew my attention to the order dated 03/12/2007 of the Hon''ble Apex Court in United India Insurance Co. Ltd. v. Shila Datta and Ors. in SLP (Civil) Nos. 17301-17302/2007 to contend that the Hon''ble Supreme Court has already referred the said issue of lack of competence of the insurer to assail the findings of the Tribunal on the ground of quantum of compensation and negligence to a larger Bench and, therefore, this Court may await the decision of the Supreme Court in this regard.

Motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured/owner and the driver of the vehicle, the insurer comes in to the picture as a result of the statutory liability created under the Motor Vehicles Act. The legislature intended and has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition enshrined in Section 170 is satisfied.

Right of appeal is a creature of statute. The 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 fall under Sub-section (2) of Section 149 cannot be taken as a defence by the insurer. Had it been the intention of the Parliament to include the breach of other conditions of the policy as a defence, it could have easily provided for ''any breach of conditions of insurance policy'' in Sub-section (2) of Section 149. But it is not the case, since the legislator has enumerated specifically the grounds of defences available to the insurer. If the insurer is permitted 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 insurer in the statute which is neither found in the Act nor was intended to be included.

After having given my thoughtful and conscious consideration to the issue involved in the present case, I am of the view that the issue is no more res integra as in catena of judgments including National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, National Insurance Co. Ltd. Vs. Mastan and Another, , the Hon''ble Supreme Court has authoritatively held that in the absence of permission sought from the Court as envisaged u/s 170 of the Motor Vehicles Act, the insurer has no right to file an appeal to challenge the quantum of compensation or finding of the Tribunal as regards the negligence or contributory negligence of offending vehicles is concerned. No such permission was sought by the appellant u/s 170 of the Motor Vehicles Act by the Tribunal and, therefore, in the absence of the same, the appellant being the insurer of the offending vehicle cannot maintain the present appeal on grounds other than those available to it u/s 149(2) of the Motor Vehicles Act.

It would be appropriate to refer Section 170 of the Motor Vehicles Act 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 proceeding and the insurer so impleaded shall thereupon 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.

Admittedly, no such permission u/s 170 of the Motor Vehicles Act was sought by the appellant, which clearly means that the procedure laid down u/s 170 of the Motor Vehicles Act was not followed. In the judgment of the Supreme Court reported in Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, , the Supreme Court has held that the insurance company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the insurance company has to obtain an order in writing from the Tribunal and such an order should be a reasoned order of the Tribunal. In such circumstances unless the said procedure is followed, the appellant insurer cannot have a wider defence on merits than what is available to it by way of a statutory defence. Relevant part of Para 4 of the said judgment in this regard is referred as under:

It clearly shows that the Insurance Company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the Insurance Company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence.

In view of the said legal position, I cannot appreciate the argument of counsel for the appellant that even without seeking permission of the Court as required u/s 170, the Appellant can proceed with the appeal. Once the application u/s 170 of the Motor Vehicles Act was preferred by the appellant before the Tribunal for taking over the defence of an owner or driver, the Tribunal is required to pass specific order and that too a reasoned order as per the observations of the Supreme Court referred above and, therefore, in the instant matter the argument of counsel for the appellant cannot be appreciated that non-filing of an application u/s 170 of the Motor Vehicles Act by the appellant in this regard is no bar in preferring present appeal.

In the light of the above discussion, I do not find any merit in the submission of counsel for the appellant. In the judgment cited by the counsel in Shanti Pathak''s case (supra) the Hon''ble Apex Court has not dealt with the said legal proposition and, therefore, the same is not applicable in the facts and circumstances of the present case.

There is no merit in the appeal and the same is dismissed.