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2000 DIGILAW 178 (MP)

NEW INDIA ASSURANCE CO. LTD. v. INDER SINGH

2000-02-23

A.K.MISHRA, D.P.S.CHAUHAN

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A. K. MISHRA, J. ( 1 ) APPELLANT New India assurance Co. Ltd. has filed this appeal challenging the award dated 27. 7. 1993 passed by the learned Claims Tribunal, jashpur Nagar, arising out of accident which took place on 1. 3. 1991. In the said accident, Gurmeet Singh, the driver of the truck bearing registration No. MIT 9011, died due to fall of the truck in a nullah. Deceased Gurmeet Singh was aged about 26 years and was earning Rs. 1,600 at the relevant time. ( 2 ) INSURANCE company in its written statement has contended that accident took place owing to the fact that deceased was heavily drunk and was himself negligent while driving the truck and as such he was not entitled to claim compensation. Total sum of compensation as claimed by the claimant is Rs. 1,40,000. ( 3 ) LEARNED Tribunal has found that tyre of the front wheel of the truck got burst due to which accident had taken place. As per the report of mechanical examination of the truck the finding has been recorded by the Claims Tribunal. It has been held that it was not a case of negligence of the deceased. Income of the deceased was assessed at Rs. 1,600 per month. However, a sum of Rs. 1,000 was deducted towards the personal expenditure and the dependency of Inder Singh, the claimant was assessed at Rs. 600 per month. Annual dependency was arrived at Rs. 7,000. Multiplier f 20 was applied. Though the multiplier applied appears to be on higher side yet the quantum of compensation cannot be challenged by the insurance company in appeal. It is not a defence available to the insurance company under section 149 of the Motor Vehicles Act. 600 per month. Annual dependency was arrived at Rs. 7,000. Multiplier f 20 was applied. Though the multiplier applied appears to be on higher side yet the quantum of compensation cannot be challenged by the insurance company in appeal. It is not a defence available to the insurance company under section 149 of the Motor Vehicles Act. Defences of the insurance company are very limited as provided under section 149 (2) of the Motor vehicles Act which are as under:" (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 racing 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 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; or (b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular. " ( 4 ) IN the instant case dependency which has been arrived at by the learned Claims tribunal is extremely on the lower side and the amount of Rs. 1,40,000 has been rightly awarded by the Claims Tribunal. It cannot be said to be an excessive amount awarded by way of compensation. Quantum of compensation is not the defence available to the insurance company. Thus, it is not open for the insurance company to file an appeal for reducing the amount of compensation. Negligence is also not one of the defences available to the insurance company under section 149 of the motor Vehicles Act. Quantum of compensation is not the defence available to the insurance company. Thus, it is not open for the insurance company to file an appeal for reducing the amount of compensation. Negligence is also not one of the defences available to the insurance company under section 149 of the motor Vehicles Act. ( 5 ) FACED with the aforesaid position of law, learned counsel for the appellant has vehemently submitted that owner of the truck remained ex pane before the Tribunal. As such permission under section 170 of the Motor Vehicles Act should be granted to contest the claim on any of the grounds. Section 170 of the Motor Vehicles act is extracted as below:"section 170: 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/' ( 6 ) IT may be seen that it is not a case of collusion between the persons making the claim and the person against whom the claim is made. Secondly, the section applies in case the person against whom the claim is made, has failed to contest the claim. In such a situation Claims Tribunal in the course of inquiry, directs the insurer who may be liable in respect of such a claim shall be impleaded as party to the proceedings and the insurance company has right to contest the claim on all or any of the grounds which are available to the person against whom the claim is made. In such event defences which are available to the insurance company under section 149 (2)of the Motor Vehicles Act are not a bar for it to raise other defences available to the person against whom the claim has been made. In such event defences which are available to the insurance company under section 149 (2)of the Motor Vehicles Act are not a bar for it to raise other defences available to the person against whom the claim has been made. It may be seen that section applies specifically in the course of an inquiry by the learned Claims Tribunal. The provision does not apply for the first time at the appellate stage. ( 7 ) IN the instant case, no permission was sought before the Claims Tribunal by the insurance company to raise the defences which were not available to the insurance company by virtue of section 149 (2) of the Motor Vehicles Act. The owner was proceeded ex parte. ( 8 ) LEARNED counsel for the appellant further submitted that appeal is in continuation of the suit as such as mention has been made in the appeal memo in para 5 and that should be taken to be the mode for praying the permission under section 170 of the Motor Vehicles Act, so as to enable the insurance company to raise the grounds available to the owner in the present appeal. This submission of the learned counsel is devoid of substance. The language of section 170 of Motor Vehicles Act in which the legislature has engrafted it is clear. Such permission can be granted in the course of an inquiry by the Claims Tribunal and that is the purpose behind it as the defences which are available to the owner, require evidence and thus permission should be obtained at the stage of inquiry before the Claims Tribunal and claims Tribunal has to record the reason in writing and permit the impleadment of insurance company giving right to contest on all the grounds. ( 9 ) IN the instant case, though the insurance company was not impleaded, subsequently, it was made a party in the original claim petition. However, there is no order passed by the Claims Tribunal allowing the insurance company to raise the defences available to the owner or driver or other person liable to compensate. Thus, the appeal is without substance. Same is accordingly dismissed. Appeal dismissed. .