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2001 DIGILAW 294 (ORI)

UNITED INDIA INSURANCE CO. LTD v. NAKULA DALAI

2001-07-10

P.K.TRIPATHY

body2001
P. K. TRIPATHY, J. ( 1 ) THIS appeal by united India Insurance Co. Ltd. , has been filed challenging the award dated 29. 4. 98 passed by the Second Motor Accidents claims Tribunal (S. D.), Berhampur, in m. A. C. No. 339 of 1996 (140 of 1995)awarding compensation of Rs. 55,500 with interest at the rate of 9 per cent per annum on amount of Rs. 45,500 from the date of application till realisation. ( 2 ) THE claimant/respondent No. 1 filed an application before the Tribunal claiming compensation of Rs. 1,50,000 from the appellant and respondent No. 2 on the allegation that on 14. 10. 1994 at about 9 p. m. near Kanisi Silver Factory on N. H. No. 5 while he was going from Berhampur side towards Golanthara on a bicycle, a mini truck bearing registration No. OR-07-A-5509 being driven in a rash and negligent manner came from Berhampur side and dashed against him from his back causing severe injuries on his person. He was shifted to the hospital and after prolonged treatment he was discharged. The respondent No. 2 who is the owner of the truck did not contest the case and was set ex pane. The present appellant contested the case by way of filing written statement denying the allegations made by the claimant. Specific stands were taken that the offending vehicle had not been insured with the appellant company and the driver of the vehicle was not having a valid driving licence at the time of the accident. ( 3 ) CONSIDERING the respective averments of the parties, the Tribunal framed four issues and while answering issue No. 1, the Tribunal found that the offending vehicle was being driven in a rash and negligent manner and hit the claimant resulting in injuries on the person of the claimant. While answering issue No. 2, the Tribunal also found that the claimant had sustained three injuries, i. e. , one lacerated injury on the scalp over the occipital region, bruise and fracture of 1st and 2nd ribs on right side. Considering the income of the claimant and the nature of injuries, the Tribunal was of the view that he is entitled to an award of Rs. 55,500. While answering issue No. 3, the Tribunal was of the view that the seizure list Exh. 10 and the charge-sheet, Exh. Considering the income of the claimant and the nature of injuries, the Tribunal was of the view that he is entitled to an award of Rs. 55,500. While answering issue No. 3, the Tribunal was of the view that the seizure list Exh. 10 and the charge-sheet, Exh. 13 disclose that the offending vehicle had valid insurance policy and the driver was having a valid driving licence at the time of the accident and accordingly fixed the liability on the present appellant. ( 4 ) IN course of argument learned counsel for appellant challenged the impugned award on three grounds, viz. , the vehicle had not been insured with the appellant, the driver of the offending vehicle did not have a valid driving licence at the time of accident and the amount of compensation awarded is not justified. While the matter was pending before this court, copies of the insurance certificate and the driving licence were filed and accepted by this court vide order dated 22. 3. 2000, without objection from the appellant insurance company, as additional evidence. The certified copy of the driving licence filed before this court was marked as Exh. 14 and the xerox copy of the insurance policy was marked as Exh. 15. ( 5 ) COMING to the first objection raised with regard to coverage of insurance, it appears from the xerox copy of the insurance policy marked as Exh. 15 that the offending vehicle had a valid insurance with the present appellant on the date of the incident and, therefore, the first objection raised by the learned counsel for appellant has no force. Similarly the certified copy of the driving licence marked as Exh. 14 also indicates that the driver of the offending vehicle had a valid licence at the time of the accident. Thus the second contention raised by the learned counsel for the appellant also fails. ( 6 ) COMING to the third question with regard to quantum of compensation, the learned counsel appearing for respondent No. 1 submitted that the insurance company cannot challenge the quantum of compensation awarded on merits, since it had not taken permission of the Tribunal to avail a larger defence on merits under section 170 of the Motor Vehicles Act ('the act' for short ). Reliance is placed on decision of the Apex Court in Shankarayya v. United India Insurance Co. Reliance is placed on decision of the Apex Court in Shankarayya v. United India Insurance Co. Ltd. , 1998 acj 513 (SC ). The Apex Court in para 4 of the judgment observed as follows: "it clearly shows that the insurance company when impleaded as a party by the court can be permitted to contest the proceeding 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. It is true that the claimants themselves had joined respondent No. 1 insurance company in the claim petition but that was done with a view to thrust the statutory liability on the insurance company on account of the contract of the insurance. That was not an order of the court itself permitting the insurance company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in section 170. Consequently it must be held that on the facts of the present case, respondent No. 1 insurance company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal. " ( 7 ) FROM the records of the Tribunal there is no material to show that the appellant had sought for permission of the Tribunal as required under section 170 of the Act. It was contended by the learned counsel for appellant that since the insurance company had already been impleaded as a party before the Tribunal, there was no necessity for obtaining permission under section 170. It was contended by the learned counsel for appellant that since the insurance company had already been impleaded as a party before the Tribunal, there was no necessity for obtaining permission under section 170. In the decision relied upon by the learned counsel appearing for respondent No. 1, the insurance company had been made a party by the claimant and the Apex court was of the view that the claimants themselves had joined the insurance company in the claim petition but that was done with a view to thrust the statutory liability on the insurance company on account of contract of insurance and that is not an order from the court permitting the insurance company to avail a larger defence on merits on being satisfied, as enumerated in section 170 of the Act. Therefore, this court is of the view that the ratio laid down by the Apex Court in the said decision squarely applies to the facts of the present case. Even accepting that the appellant had a right to challenge the award on merits, this court does not find any infirmity in the findings of the Tribunal to interfere with quantum determined as compensation. The tribunal has not only taken into consideration the nature of injuries, the resultant deformity, the amount of money spent for treatment and taking into consideration all such relevant factors, the Tribunal arrived at a conclusion that the claimant-respondent is entitled to compensation of rs. 55,500 (rupees fifty-five thousand and five hundred ). There is no justification to interfere with such findings and award which are supported by oral and documentary evidence. ( 8 ) IN view of the above noted findings, this court does not find any merit in the appeal and the same is accordingly dismissed. Appeal dismissed.