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2001 DIGILAW 42 (JK)

National Insurance Co. Ltd. v. Rattan Chand

2001-02-17

A.M.MIR

body2001
JUDGMENT 1. This appeal arises out of an award passed by the MACT Jammu on 27.2.1999. The life of the deceased was cut short while he was 28 years of age. His monthly income was proved to be Rs. 6600/-. However, the Tribunal has slashed it down to Rs. 4500/- for the reasons that no proof with respect to payment of income tax was adduced. A multiplier of ten has been applied and as a result total dependency has been worked out at Rs. 4,02,160/-. In addition to this Rs. 14500/-, Rs. 10000/- Rs. 2000/- and Rs. 2500/- have been awarded as loss of expectation of life, funeral expenses and loss of estate etc. Total amount awarded is Rs. 4,16,660/-. 2. According to Mr. C.S. Gupta, the compensation awarded is excessive and is violative of the formular laid by the Supreme Court in 1998 SCC Vol. 8 page 633. 3. I have gone through the judgment. In that judgment the age of the parents of the deceased has not been given while as whole stress of the argument of Mr. Gupta with regard to application of wrong multiplier. In this case the parents were at the age of 50 and 55 years. However I need not go to the merits of the case because a objection raised by Mr. Gagan Basotra was with respect to maintainability of the appeal. He has relied upon the judgment of the Apex Court returned in case titled George vs. N.K. Raju reported in (2000) 4 SCC 130. In this judgment the scope of right to appeal of the Insurer has been outlined. It is pertinent to place on record that the case before the Apex Court the insurer had been arrayed as a co-appellant and even then the court after holding that he had no grievance to lodge, held that the insured could defend the proceedings before the Claim Tribunal on certain limited grounds. None of the grounds under sub-section 2 of section 149 of the Motor Vehicles Act exist for the insurer to defend the claim petition. That being so, no right exists for the insurer to file the appeal against the award of the Claim Tribunal in the present case. 4. Prior to that the Supreme Court in a case titled Shankaraya and another vs. United Indian Insurance Co. That being so, no right exists for the insurer to file the appeal against the award of the Claim Tribunal in the present case. 4. Prior to that the Supreme Court in a case titled Shankaraya and another vs. United Indian Insurance Co. Ltd and another reported in 1998 ACJ page 513 has while discussed the scope of section 170 of the Act held as under: - "4. It clearly shows that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merit 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 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 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, the respondent no. 1 insurance company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal". 5. Same view was taken by a Full Bench of this court in a case titled United India Fire and General Insurance Company vs. Laxmi Shri Ganjoo and Others reported in 1982 ACJ 470. Para 28 of this judgment, after taking the whole law into consideration, has clinched the issue. Same reads as under: - "The argument of Mr. Ganjoo that the limitations which are set out in Section 96(2) of the Act in the matter of defending a claims petition before the Tribunal do not extend to appeals filed under Section 110-D of the Act by the insurer or that Section 96(2) is not exhaustive, is not sound. Same reads as under: - "The argument of Mr. Ganjoo that the limitations which are set out in Section 96(2) of the Act in the matter of defending a claims petition before the Tribunal do not extend to appeals filed under Section 110-D of the Act by the insurer or that Section 96(2) is not exhaustive, is not sound. The limitations which are set out in section 96(2) of the Act are implicit and inherent in Section 110-D of the Act and have to be read into that Section. Before a person can file an appeal under Section 110-D of the Act he has to be an "aggrieved party". The expression "aggrieved party" contains the inherent limitation in the matter of filing an appeal. The expression "aggrieved" in the context of Section 110-D of the Act has to be interpreted and understood in common parlance (See in this connection Jasbhair Motibhair Desai vs. Roshan Kumar Haji Bashir Ahmed). It is not possible to give an exhaustive definition of the expression "aggrieved party" and the expression has to be interpreted in the context in which it appears in a particular statute. As a general principle, it has been held by the courts that a person who feels disappointed with the result of a case is not necessarily a person aggrieved to be so classified he must be disappointed of a benefit which he would have received if the order had gone the other way. The order must cause him the legal grievance by wrongfully depriving him of something. If he was not entitled to that relief in the first place, he cannot be aggrieved if the relief was denied to him but if he was entitled to it and the same has been denied to him, he would be a person aggrieved. Thus a party would be regarded as an "aggrieved party" for the purpose of Section 110-D where the claim or defences available to that party did not find favour with the Tribunal in making an award. The party would be aggrieved only to that extent and no further. It is unimagineable that an insurer, which before the Tribunal had only limited defences can file an appeal on other grounds also. An appeal is rehearing of the claims petition and is therefore a continuation of it. The party would be aggrieved only to that extent and no further. It is unimagineable that an insurer, which before the Tribunal had only limited defences can file an appeal on other grounds also. An appeal is rehearing of the claims petition and is therefore a continuation of it. It is elementary that in an appeal a party cannot be allowed to raise a defence which was not available to it in the forum below. It therefore, follows that an "aggrieved party" for the purpose of Section 110-D would only be such a party which is aggrieved of the award on the ground that its defence or claim as was available to it and was set up before the Tribunal did not find favour with it. If a particular defence was not available to a party before the Tribunal, the question of it not having found favour with the Tribunal does not arise because no party can be aggrieved of any adverse decision on the ground which was not available to it. Thus, it is manifest that whereas insured would have the right to challenge an award on all the grounds which were available to it under Section 96(2) of the Act". 6. Here in the present case admittedly the insurer has not obtained permission of the Tribunal in terms of Section 170 and as such his challenge to the quantum of compensation by way of this appeal is not maintainable. That being the position of law, I find that this appeal is not maintainable and is accordingly dismissed. No costs. 7. May it also be placed on record that Mr. C.S. Gupta tried to find fault with the award because the same, according to Mr. Gupta was passed in favour of a brother who was at the age of 25 years and not a dependant. This is of course, a plea taken in the application but it was not a case of the appellant before the Tribunal. The law on the point is clear that the points not raised before the Trial court cannot be permitted to be raised at the appellate stage. In this regard I am supported by the following judgments of the Apex Court AIR 1966 SC 1017 AIR 1967 SC 1193 AIR 1997 SC 1071 Therefore, I am not in a position to address myself to this aspect of the case.