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2003 DIGILAW 1496 (AP)

National Insurance Co. Ltd. v. Adari Kotamma

2003-12-04

GHULAM MOHAMMED

body2003
( 1 ) SINCE all these appeals arise out of the same accident, they are clubbed together, heard and are being disposed of by the common judgment. ( 2 ) C. MA. NOS. 544, 545, 546, 711, 712, 719 and 720 of 2002 are preferred by the national Insurance Company Limited, visakhapatnam, against theorder and decree, dated 11-06-2001 in O. P. Nos. 1103,1369,1230, 1598,1596,1597 and 1599of 1998 respectively, passed by the Motor Accidents Claims tribunal, Visakhapatnam. ( 3 ) THE brief facts of the case are that on 14-11-1997 at about 11 a. m. the van bearing no. AP31u-349 was going to Govada and when it reached near Chilakalagedda bridge, chowdivada, the lorry bearing No. AND- 9099 came in rash and negligent manner at high speed in opposite direction and dashed against the van, resulting in death of a. Koteshwara Rao, M. Sun Babu, and p. Appa Rao and injuries to Reddi Ammanna, k. Lakshmi, R. Nagamani, and L. Ramu. The injured and deceased were shifted to government hospital, Chodavaram and Post mortem was conducted on the dead bodies of the deceased. The injured and the dependents of the deceased filed the above o. Ps claiming compensation from the owners and insurers of the vehicles involved in the accident. ( 4 ) THE owner of the lorry remained ex parte in the O. Ps. The 2nd respondent-insurer filed counter affidavit in O. Ps denying the averments including the manner of accident and rash and negligent driving of the lorry. The 6th respondent denied the ownership of the van at the time of accident and the insurer of the van denied that the vehicle is insured with them. ( 5 ) THE claimants got themselves examined and marked documents on their behalf. The insurance policy and the order passed by the motor Accidents Claims Tribunal, vizianagaram in O. P. No. 488 of 1998, dated 02-02-2000 were marked on behalf of respondents. The Tribunal after considering the oral and documentary evidence on record held that the accident occurred due to the rash and negligent driving of the lorry driver. ( 6 ) HEARD learned counsel for the appellant and learned counsel for the respondents. The Tribunal after considering the oral and documentary evidence on record held that the accident occurred due to the rash and negligent driving of the lorry driver. ( 6 ) HEARD learned counsel for the appellant and learned counsel for the respondents. ( 7 ) THE learned Standing Counsel for the appellant-Insurance Company contends that the Motor Accident Claims Tribunal, vizianagaram, rendered the judgment in o. P. No. 488 of 1998, dated 02-02-2000 fixing the contributory negligence between the lorry driver and the van driver to an extent of 75% and 25% respectively. The learned Standing counsel also contends that finding in the said O. P. had attained finality and the tribunal at Visakhapatnam, ought not to have ignored the finding of contributory negligence making the van driver also responsible for the accident. ( 8 ) THE learned Standing Counsel for the insurance Company further contends that the findings rendered by the Motor Accident claims Tribunal, Vizianagaram, in O. P. No. 488 of 1998 are arrived at the earliest point of time and such findings are binding on the Tribunal at Visakhapatnam, which dealt with the same issue subsequently, but took a different view that there is negligence on the part of the lorry driver alone and exonerated the driver of the van bearing no. AP31-U-349. ( 9 ) ON the other hand, the learned counsel for the respondents-claimants contends that in all the other OPs where compensation is claimed, the lorry owner was impleaded and he remained ex parte and since the insured himself was set ex parte, the insurer is not entitled to file an appeal inasmuch permission under Section 170 of the Motor Vehicles act, 1988, has not been obtained from the tribunal. ( 10 ) THE learned counsel for respondents has drawn my attention to the judgment of the Apex Court in National Insurance Company limited v. Nicolletta Rohtagi wherein the following question arose for consideration:"where an insured has not preferred an appeal under Section 173 of the Motor vehicles Act, 1988 (hereinafter referred to as "1988 Act") against an award given by the Motor Accidents Claims Tribunal (hereinafter referred to as "the tribunal"), is it open to the insurer to prefer an appeal against the award by the Tribunal questioning the quantum of compensation, as well as the finding as regards the negligence of the offending vehicle?"the Apex Court while considering the provisions of the Motor Vehicles 1939 Act and 1988 Act, held in paras 16,17,18 31 and 32 as follows:"for the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in sub- section (2) of section 149 of 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds. Before proceeding further, it may be noticed that while the Motor Vehicles act, 1939 was in force, Section 110-C (2-A) was inserted therein in the year 1970 which corresponds to section 170 of the 1988 Act. The said provision provides that in course of an inquiry of a claim if the Tribunal is satisfied that there is a collusion between the claimant and the insured or the insured fails to contest the claim, the tribunal 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. The aforesaid provisions show two aspects. The aforesaid provisions show two aspects. Firstly, that the insurer has only statutory defencesavailableasprovided in sub-section (2) of Section 149 of 1988 act and, secondly, where the Tribunal is of the view that there is a collusion between the claimant and the insured, or the insured does not contest the claim, the insurer can be made a party and on such impleadment the insurer shall have all defences available to it. Then comes the provisions of Section 173 which provides for an appeal against the award given by the Tribunal. Under section 173, any person aggrieved by an award is entitled to prefer an appeal to the High Court. Very often the question has arisen as to whether an insurer is entitled to file an appeal on the grounds available to the insured when either there is a collusion between the claimants and the insured or when the insured has not filed an appeal before the High Court questioning the quantum of compensation. The consistent view of this court had been that 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 the offending vehicle. We have already held that unless the conditions precedent specified in section 170 of 1988 Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further the tribunal does notimplead the insurance company to contest the claim in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the grounds available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case, where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing an appeal on grounds specified in sub-section (2) of section 149 of 1998 Act. In any case, where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing an appeal on grounds specified in sub-section (2) of section 149 of 1998 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res Integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the tribunal for rectification of award. For the aforesaid reasons, our answer to the question is that even if no appeal is preferred under Section 173 of 1988 act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle. " ( 11 ) THE Supreme Court in Rita Devi v. New india Assurance Company Limited held that the insurer, having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High court against the award passed by the tribunal on merits. ( 12 ) THE Supreme Court in another decision in United India Insurance Company Limited v. Sachdeva, however, held that where the insured fails to file an appeal to the High court against the quantum of compensation awarded by the Tribunal, the insurer is entitled to file an appeal as the insured has failed to contest the claim and in that view of the matter, the insurer could be a person aggrieved. This is the only decision, which is contrary to the consistent view of the Supreme court in regard to maintainability of appeal. ( 13 ) IN the instant case, the insured remained ex parte and the insurer has filed these appeals contending that at the earliest point of time the Tribunal at Vizianagaram has applied the principle of contributory negligence and apportioned the negligence between the lorry driver and the van driver to the extent of 75% and 25% respectively and that finding had become final and as such, the same is binding on the Tribunal at visakhapamam. ( 14 ) THE contentions of the learned standing counsel for the appellant cannot be accepted inasmuch as the Tribunal at visakhapatnam has independently arrived at its findings relying upon the version of p. W. 1, who is an independent and impartial eye witness to the incident, P. W. 1 deposed that P. W. 1 and her husband boarded the van and when the van reached near chilakalagedda bridge, the accident lorry came in the opposite direction and dashed their van, due to which the van turned turtle. Nothing is elicited in the cross-examination to disbelieve her version. Apart from that, the Tribunal at Visakhapatnam, having considered the evidence on record categorically held that the accident occurred due to the rash and negligent driving of the lorry driver alone. However, this witness was not examined in the earliest proceedings in O. P. No. 488 of 1998, but the order in the said O. P. was marked as Ex. B-2 in the proceedings before the Motor Accidents claims Tribunal, Visakhapatnam. ( 15 ) APART from this, in all these cases the lorry owners against whom the award is made remained ex parte and he has not preferred any appeal, but the Insurance company has preferred these appeals contending that the finding of the Motor accidents Claims Tribunal, Vizianagaram, regarding contributory negligence between the lorry driver and the van driver to the extent of 75% and 25% respectively has become final and therefore the same is binding on the Tribunal at Visakhapatnam. ( 16 ) IN such view of the matter, learned standing counsel contends that the Tribunal at Visakhapatnam ought to have confirmed the said finding and ought not to have taken a different view holding that the lorry driver is alone responsible for the accident. This contention even on merits cannot be accepted inasmuch as the Tribunal at visakhapatnam relied upon the version of p. W. 1 and has given his cogent and convincing reasons for arriving at its findings. P. W. 1 was not examined before the Tribunal at Vizianagaram and apart from that, the lorry owner has not contested the matter before the Tribunal and thus the award had become final. However, the insurer filed the appeal contending that when two vehicles are involved in the accident, the findings arrived at by the Tribunal, Vizianagaram, at the earliest point of time are binding on the tribunal at Visakhapatnam. However, the insurer filed the appeal contending that when two vehicles are involved in the accident, the findings arrived at by the Tribunal, Vizianagaram, at the earliest point of time are binding on the tribunal at Visakhapatnam. This contention, in my considered view, cannot be accepted inasmuch as the Visakhapatnam Tribunal taking into consideration the evidence on record and the order of Tribunal at vizianagaram in O. P. No. 488 of 1998 has given an independent finding with regard to the negligence of the lorry driver. ( 17 ) THE learned counsel for the respondents-claimant has also drawn my attention to the judgment of this court in New india Assurance Company Limited, Nirmal v. B. Pattni Bai to the effect that Insurance company cannot file an appeal against the quantum of compensation on the ground of application of wrong multiplier, and such ground is not available to an insurer under section 149 (2) of the Motor Vehicles Act. Even on the grounds permitted under section 149 (2), the Insurance Company has to invoke Section 170 of the Act and obtain permission from the Court to come on record and contest the claim. ( 18 ) IN these cases, the insured, who is the lorry owner, remained ex parte and he is a proper and necessary party but he has not filed any appeal. However, the insurance company in all these appeals has challenged the finding with regard to negligence. Since this issue has already been decided by the apex Court in Nicolletta Rohtagi (1 supra) and Rita Devi (2 supra) to the effect that if no appeal is preferred under Section 173 of the motor Vehicle Act, 1988 by the insured against the award of the Tribunal, it is impermissible for the insurance company to file an appeal questioning the quantum of compensation and finding on negligence or contributory negligence of the offending vehicle. ( 19 ) FOR the aforesaid reasons, all the appeals filed by the National Insurance company Limited shall stand dismissed. No order as to costs.