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2003 DIGILAW 596 (RAJ)

New India Insurance Co. v. Tej Kanwar

2003-04-22

O.P.BISHNOI, RAJESH BALIA

body2003
JUDGMENT 1. - Having heard the learned counsel for the parties, we are of the opinion that no interference can be made in this appeal at the instance of New India Insurance Co. Ltd. 2. The husband of respondent No. 1 and the father of respondent Nos. 2 to 8, Paras Mal died in a Motor Accident which took place on 13.7.89. A claim was filed before the Motor Accident Claims Tribunal alleging therein that the income of deceased at the time of his death was Rs. 6000/- per month and his 8 years' service was left. The Insurance Company was also impleaded as party and the vehicle was insured. The Motor Accident Claims Tribunal taking the monthly income of deceased at Rs. 6000/- awarded a sum of Rs. 5,74,000/- as compensation and after depositing Rs. 25,000/- as no fault liability, Rs. 5,49,000/- was awarded to be paid to the claimants till the date of filing the application only and 12% interest was also awarded. This award was not appealed by the owner and the driver of the vehicle but this appeal was filed by the Insurance Company only. 3. From the judgment under appeal, it is clear that award was sought to be challenged for avoiding liability, on merits, on grounds other than permissible under Section 149(2) of the Motor Vehicles Act, 1988. Primary contention before the learned Single Judge was that as per the statement of Bank Manager, last drawn salary of the deceased was Rs. 5145/- per month and not Rs. 6000/- per month as has been allowed by the learned Motor Accident Claims Tribunal. On that basis, the learned Tribunal has awarded Rs. 4,80,000/- and the learned Single Judge has affirmed the same. The learned Single Judge categorically stated that the plea about quantum of compensation is not available to the insurance Company. Apart from this, the learned Single Judge on examining the evidence sustained the finding on merit also. The same contentions has been raised before us that there was error apparent in determining the quantum of compensation by taking the basic salary per month which was payable to the deceased at the time of his death at Rs. 6000/-per month, which is contrary to the statement of employer. 4. We are of the opinion that in view of the judgment reported in 2003(1) WLC (SC) Civil 129, National Insurance Co. 6000/-per month, which is contrary to the statement of employer. 4. We are of the opinion that in view of the judgment reported in 2003(1) WLC (SC) Civil 129, National Insurance Co. v. Nicolletta Rohtagi & ors. , Insurance company is-not entitled to avoid its liability to any person entailed to benefit of any judgment or award referred to in sub-section (1) except in the manner provided in sub-section (2) of Section 149 of the Act of 1988. The Hon'ble Apex Court after considering the scheme of Section 149 of the Act of 1988 drew special attention to sub-sections (2) and (7) and came to the conclusion that statutory defences which are available to the insurer to contest a claim petition are confined to what are provided In sub-section (2) of section 149 of the Act of 1988 and not more, and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine only to those grounds. Interpreting sub-section (7) of Section 149 of the Act, the Hon'ble Supreme Court held that the expression "manner" employed in sub-section (7) of section 149 is very relevant which means an insurer can avoid its liability only in accordance with what has been provided for in sub-section (2) of section 149. It, therefore, shows that the insurer can avoid its liability only on the statutory defences expressly provided in sub-section (2) of section 149 of 1988 Act. We are, therefore, of the view that an insurer cannot avoid its liability on any other grounds except those mentioned in sub-section (2) of Section 149 of 1988 Act: 5. The only exception of this rule is that the conditions mentioned in Section 170 are found to be satisfied and for that purpose the Insurance Company has to obtain an order in writing from the Tribunal and which should be reasoned order by the tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. 6. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. 6. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation. The two conditions are that where in course of an enquiry the Claims Tribunal is satisfied that (a) either there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the tribunal may, for the reasons to be recorded in writing, implead the insurer and in that case, it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. 7. No such case is made out before us nor any such permission was sought by the Insurance Company at any stage for permitting it to contest the claim under Section 170 of the Act. 8. In view of the aforesaid, we are of the opinion that learned Single Judge was right in holding that the Insurance Company is not entitled to address this court on the point of quantum determined by the Tribunal. Moreover, on merit also, we agree with the findings of learned Single Judge who has relied upon the statement of Bank Manager, who infact, made a statement only about estimated payment of salary at the time of death of the deceased. In addition thereto, we find from the Award that in this connection, there was no mis-representation made by claimants. It was dearly stated by the claimants that at the time of death, as a result of accident, which happened In 1989, the deceased was getting Rs. 5367/- per month. However, as a result of revision of pay under Revised pay-scale Rules 1987, his salary was Rs. 6008/- at the time of death. Revision of pay of deceased w.e.f. 1987 was not contested and in view thereof, nothing turned on the statement of Bank Manager. 9. Lastly it was contended by the learned counsel for the appellant that the rate of interest awarded in the present case is excessive. 6008/- at the time of death. Revision of pay of deceased w.e.f. 1987 was not contested and in view thereof, nothing turned on the statement of Bank Manager. 9. Lastly it was contended by the learned counsel for the appellant that the rate of interest awarded in the present case is excessive. This plea also deserves to be rejected. The death has taken place in the year 1989, claim petition was immediately filed thereafter and the award was made in the year 1994. At the time when death took place or when the award was made, the rate of interest prevailin( was not less than 12% per annum and in the circumstances, no reduction in rate of interest is justified. 10. The meal is, therefore, dismissed. No order as to costs.Appeal dismissed. *******