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2005 DIGILAW 235 (GAU)

National Insurance Co. Ltd. v. Biswajit Banik

2005-03-18

I.A.ANSARI

body2005
JUDGMENT I.A. Ansari, J. 1. The present set of three writ petitions are against three judgments and awards, which were passed, on 21.8.2001, 7.8.2001 and 21.8.2001 by the learned Member, MACT, on analogous hearing of three claim petitions made under Section 166 of the Motor Vehicle Act, 1988, namely, TS (MAC) No. 160/99, TS(MAC) No. 157/99 and TS(MAC) No. 147/99 respectively. WP(C) No. 180 of 2002 [TS (MAC) No. 160/99] 2. Heard Mr. A. Lodh, learned Counsel for the petitioner, and Mr. A Gon Choudhury, learned Counsel appearing on behalf of the respondent No. 4. Also heard Mr. T Ali, learned Counsel appearing on behalf of the respondent Nos. 2 and 3. 3. The case of the claimant may, in brief, be stated as follows : - On 18.2.1999, at about 10 A.M., when Biswajit Banik, aged about 3 1/2 years, was travelling with his mother, Bina Devi Brahma, in an auto-rickshaw bearing registration No. TRT-2089 over the Agartala Airport road, the auto-rickshaw collided against a bus bearing No. TR.1-1230, both the vehicles having been driven rashly and negligently. The said minor, Biswajit Banik, as well as his mother, Bina Debbrahma, were severely injury. However, while Biswajit survived, his mother, Bina, succumbed to her injuries. The claimant accordingly demanded Rs. 6,00,000 as compensation for the injuries sustained by the said minor. 4. By the judgment and award passed in this case, which, now, stands impugned in WP(C) 180/2002, the learned Tribunal has awarded Rs. 40,000 as compensation for the injuries sustained by the said minor and directed the insurer of both the offending vehicles, namely, the auto-rickshaw and the bus to make payment of the said compensation; but at the same time, it gave liberty to the respondent No. 3, namely, M/S. New India Assurance Co. Ltd., i.e., the insurer of the said bus to recover the amount from the respondent No. 1, namely, the owner of the said bus inasmuch as the driver of the bus had no valid driving licence at the time, when the accident had taken place. WP(C) 186/2002 5. Heard Mr. A. Lodh, learned Counsel for the petitioner, and Mr. A Gon Choudhury, learned Counsel appearing on behalf of the respondent No. 4. Also heard Mr. T Ali, learned Counsel appearing on behalf of the respondent Nos. 2 and 3. 6. WP(C) 186/2002 5. Heard Mr. A. Lodh, learned Counsel for the petitioner, and Mr. A Gon Choudhury, learned Counsel appearing on behalf of the respondent No. 4. Also heard Mr. T Ali, learned Counsel appearing on behalf of the respondent Nos. 2 and 3. 6. The case of the claimant may, in brief, be stated as follows : - On 18.2.1999 at about 10 A.M., when Bina Debbarma, aged about 25, years was travelling with other passengers in an auto-rickshaw bearing registration No. TRT-2089, the auto-rickshaw collided against a bus bearing No. TR. 1-1230, both the vehicles having been driven rashly and negligently. Bina Debbarma (since deceased) was severely injured and died on the spot. The said deceased used to work as a helper to masons and earn Rs. 1,800 per month. The claimants, who are legal representatives of the said deceased, accordingly claimed Rs. 10,82,000 as compensation for the death of the said deceased. 7. By the judgment and award passed in this case, which, now, stands impugned in WP(C) 186/2002, the learned Tribunal has awarded Rs. 1,70,000 as compensation and directed the insurer of both the offending vehicles, namely, the auto rickshaw and the bus to make payment of the said compensation amount; but at the same time, it gave liberty to the respondent No. 3, namely, M/S. New India Assurance Co. Ltd. to recover the amount from the respondent No. 1, namely, the owner of the said bus inasmuch as the driver of the said bus did not have valid driving licence at the time, when the said accident had taken place. WP(C) 181/2002 8. Heard Mr. A. Lodh, learned Counsel for the petitioner, and Mr. A Gon Choudhury, learned Counsel appearing on behalf of the respondents. 9. The case of the claimant, in brief, be stated as follows : - On 18.02.99 at about 10 A.M., when Ratan Dev Nath, aged about 21 years, was travelling with other passengers in an auto rickshaw bearing registration No. TRT-2089, the auto-rickshaw collided against a bus bearing No. TR.1-1230, both the vehicles having been driven rashly and negligently. Ratan Dev Nath was severely injured and succumbed to his injuries on 23.2.1999. The said deceased was a contingent worker under Agartala Municipal Council and used to earn Rs. 1,800 per month. The claimants, as legal representatives of the said deceased, have accordingly claimed Rs. Ratan Dev Nath was severely injured and succumbed to his injuries on 23.2.1999. The said deceased was a contingent worker under Agartala Municipal Council and used to earn Rs. 1,800 per month. The claimants, as legal representatives of the said deceased, have accordingly claimed Rs. 9,27,000 as compensation for the death of the said deceased. 10. By the judgment and award passed in this case, which, now, stands impugned in WP(C) 181/2002, the learned Tribunal has awarded Rs. 1,77,000 as compensation for the injuries sustained by the said deceased and directed the insurer of both the offending vehicles, namely, the auto rickshaw and the bus to make payment of the said compensation amount; but at the same time, it gave liberty to the respondent No. 2, namely, M/S. New India Assurance Co. Ltd., the insurer of the said bus to recover the amount from the respondent No. 6, namely, the owner of the said bus inasmuch as the driver of the said bus did not have valid driving licence at the time, when the said accident had taken place. 11. It is now the surer of the said auto-rickshaw, namely, National Insurance Co. Ltd., which has impugned the awards in the present three writ petitions, its grievances being (i) that since the said auto-rickshaw was carrying more than three passengers in breach of the policy conditions of insurance and the relevant laws, it is the owner of the auto-rickshaw, which ought to have been held responsible for making payment of the compensation, if any, to the claimants and the insurer of the said auto-rickshaw, namely, the present petitioner ought not to have been saddled with the liability to pay the compensation or any part thereof to the claimants; and (ii) that since the driver of the bus had no valid driving licence to drive the bus, the insurer of the auto-rickshaw, namely, the present writ petitioner ought not to have been fastened at all with the liability to pay the compensation or any part thereof to the claimants. 12. 12. While dealing with the present three writ petitions, what is of utmost importance to note is that the findings of the learned Tribunal that both the vehicles aforementioned, namely, the auto-rickshaw as well as the bus were being driven rashly and negligently and that both the said drivers having equally contributed to the said accident, the insurers of both the vehicles were liable to pay compensation, in equal share, to the claimants, could not be assailed and have not, in fact, been assailed at the time of hearing of the writ petitions. 13. What follows from the above discussion is that notwithstanding the fact that the driver of the bus had no driving licence, the driver of the auto-rickshaw was equally responsible for the said accident. In such a situation, the mere fact that the driver of the bus had no valid driving licence could not have been made a ground for absolving the owner of the auto-rickshaw from the responsibility to share, in equal proportion, along with the insurer of the said bus, the compensation, which were found liable to be paid to the claimants and, hence, the present petitioner, as insurer of the auto-rickshaw, was, in the absence of any other assailable ground, liable to indemnify the owner of the auto-rickshaw to the extent that the owner of the auto-rickshaw was found liable to share the amounts of compensation determined by the learned Tribunal. 14. As regards the writ petitioner's grievance that the auto-rickshaw was carrying more than three passengers in breach of the policy conditions and the relevant laws, suffice it to mention here that in the light of the provisions of Section 149(2) of the MV Act, breach of any of the conditions of the insurance policy is one of the grounds on which an insurer can defend the claim for compensation made against it. In other words, the insurer has the statutory defence available to it under Section 149(2) of the MV Act if any of the conditions of the insurance policy is breached. If the present petitioner, as insurer of the auto-rickshaw, feels aggrieved by the impugned award, whereby it has been as insurer of the said auto-rickshaw, fastened with the liability to pay compensations a remedy of statutory appeal in terms of Section 173 read with Section 149(2) of the MV Act was available to the writ petitioner. If the present petitioner, as insurer of the auto-rickshaw, feels aggrieved by the impugned award, whereby it has been as insurer of the said auto-rickshaw, fastened with the liability to pay compensations a remedy of statutory appeal in terms of Section 173 read with Section 149(2) of the MV Act was available to the writ petitioner. When a statutory right of appeal was available to the petitioner and the petitioner has not availed the same, the petitioner cannot achieve the same object by seeking to invoke the jurisdiction of this Court under Article 226 and/or 227 of the Constitution of India and thereby make the remedy of the statutory appeal available to it redundant or enlarge the scope of the restricted right of appeal, which the legislature, with the help of the MV Act, has provided to the insurer. (See Sadhana Lodh v. National Insurance Co Ltd. reported in [2003] 1 SCR 567). Viewed from this angle, the writ petition is not maintainable. 15. Though the petitioners have also challenged the quantum of compensation granted to the claimants, it needs to be emphasized that no award of a Tribunal, constituted under the MV Act, can be impugned by way of a writ petition on the ground of quantum of compensation, for, an insurer cannot, as held in Sadhana Lodh v. National insurance Co Ltd. reported in [2003] 1 SCR 567, challenge, by way of a writ petition, an award given by a Tribunal on the mere ground that the compensation awarded is high or excessive inasmuch as an erroneous decision, in the absence of any other ground, is not amenable to the writ jurisdiction under Article 226 and/or227 of the Constitution of India. That the insurer, such as, the present petitioner, cannot challenge an award made by a Tribunal on the ground of quantum of compensation only cannot be disputed and has not, in fact, been disputed before me. This apart, I have carefully scrutinized the impugned awards and found that the learned Tribunal has assigned cogent reasons for determining the amounts of compensation aforementioned. 16. Because of what have been pointed out above, I find no merit in the writ petitions and the same shall accordingly stand dismissed. 17. In each of the three writ petitions, the petitioner shall pay cost of Rs. 2,000 to the claimants. 18. 16. Because of what have been pointed out above, I find no merit in the writ petitions and the same shall accordingly stand dismissed. 17. In each of the three writ petitions, the petitioner shall pay cost of Rs. 2,000 to the claimants. 18. With the above observations and directions, the three writ petitions shall stand disposed of. 19. Send back the LCRs.