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Judgment
This appeal is directed against the judgment and award dated 10-6-1996 passed by the Additional District Judge of Motor Accident Claims Tribunal, Mandya, in MVC No. 93 of 1992, whereby the Tribunal has awarded the compensation to the tune of Rs. 3,39,000/- with interest at the rate of 6% p.a. from the date of petition till realisation with costs of Rs. 800/-.
The United India Insurance Company Limited, who was respondent 3 before the Tribunal (appellant 1 herein) has come up in appeal before this Court.
This appeal has been filed by the Insurance Company joining the owner of the vehicle also and effort has been made to contend that the finding to the effect that the accident which resulted in the death of Sri A. Syamasundar, was the result of contributory negligence and therefore the award is liable to be set aside.
We have applied our mind to the contention raised by the learned Counsel for the appellants. This contention is not at all open to the appellants. Even the perusal of the memo appeal does not indicate any ground coming within the framework of the defence available to the Insurance Company u/s 149(2) of the Motor Vehicles Act, 1988 has been raised therein. The appeal does not contain any ground of challenge to the award within the framework of Section 149(2) of the Motor Vehicles Act, 1988. In view of the law laid down in the case of Chinnama George and Others Vs. N.K. Raju and Another, , the present appeal is misconceived and it is not maintainable at the instance of the Insurance Company. Their Lordships of the Supreme Court observed paragraph 5 of the said report as under:
"5. u/s 149 of the Act, it is the duty of the insurer to satisfy the award against the person insured in respect of third-party risks. It is not that the liability of the insurer in the present case is being disputed. The insurer can defend the proceedings before the Claims Tribunal on certain limited grounds. Sub-sections (1), (2) and (7) of Section 149 of the Act are relevant, which are as under:
"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third-party risks.--(1) If, after a certificate of insurance has been issued under sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 147 (being a liability covered by the terms of the policy) or under the provisions of Section 163-A is obtained against any person insured by the policy then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgment.
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award, unless before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely-
(a) that there has been a breach of a specified condition 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 rating and speed testing, or
(c) for a purpose not allowed by the permit under which 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 duty 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; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular.
(3) to (6) xxx xxx xxx.
(7) 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".
Admittedly, none of the grounds as given in sub-section (2) of Section 149 exist for the insurer to defend the claims petition. That being so, no right existed in the insurer to file appeal against the award of the Claims Tribunal. However, by adding N.K. Raju, the owner as co-appellant, an appeal was filed in the High Court which led to the impugned judgment. None of the grounds on which the insurer could defend the claims petition was the subject-matter of the appeal as far as the insurer is concerned. We have already noticed above that we have not been able to figure out from the impugned judgment as to how the owner felt aggrieved by the award of the Claims Tribunal. The impugned judgment does not reflect any grievance of the owner or even that of the driver of the offending bus against the award of the Claims Tribunal. The insurer by associating with 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 claims petition. We cannot put our stamp of approval as to the validity of the appeal by the insurer merely by associating the insured. Provision of law cannot be undermined this way. We have to give effect to the real purpose to the provision of law relating to the award of compensation in respect of the accident arising out of the use of the motor-cycle and cannot permit the insurer to give him the right to defend or appeal on grounds not permitted by law by a back-door method. Any other interpretation will produce unjust results and open the gates for the insurer to challenge any award. We nave to adopt a purposive approach which would not defeat the broad purpose of the Act. The Court has to give effect to one object of the Act by adopting a purposive approach".
Their Lordships of the Supreme Court in paragraph 8 of the said report observed as under:
"8. If none of the conditions as contained in sub-section (2) of Section 149 exist for the insurer to avoid the policy of insurance he is legally bound to satisfy the award. He cannot be a person aggrieved by the award. In that case the insurer will be barred from filing any appeal against the award of the Claims Tribunal".
From a perusal of the judgment and award in this case, it is revealed that the owner of the vehicle had not filed any written statement/objections challenging the claim made by the claimants. Respondents 1 and 2 have not filed any objections, nor they have lead any evidence to disprove the claim petition. They cannot be said to be aggrieved from the judgment and award given by the Trial Court. In the view of the matter, the owner of the vehicle or the Driver of the vehicle cannot be permitted to be made use of as "Shikhandi". Thus considered in our opinion, the appeal filed by the Insurance Company is devoid of merits and is hereby dismissed.
As regards the cross-objections in view of the law laid down by this Court in the case of United India Insurance Company v V. Balasubramanyam and Another, in which it has been laid down that "in appeal by insurer in which the only ground of challenge is extent of liability, cross-objector cannot contest quantum of compensation or findings on any other issue". In paragraph 7 of the judgment their Lordships observed as under:
"The combined effect of Section 110-D and Order 41, Rule 22 of the CPC is that in an appeal presented by an insurer in which the only ground of challenge is about the extent of liability of the Insurance Company, the cross-objector in such an appeal cannot be permitted to contest the quantum of compensation or the findings recorded on any other issue".
In view of the law laid down by the Division Bench of this Court, in our opinion cross-objection is not entertainable and is hereby dismissed.
The remaining balance amount of compensation awarded by the Tribunal should be deposited before it within a period of eight weeks from today.