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2006 DIGILAW 619 (UTT)

The New India Assurance Company Ltd. v. Km. Manisha

2006-11-06

RAJEEV GUPTA, RAJESH TANDON

body2006
Judgment Rajeev Gupta, C.J. This judgment shall govern the disposal of A.O. Nos. 502 of 2004, 503 of 2004,504 of 2004 and 505 of 2004. 2. These four appeals have been filed by the insurer of the offending vehicle Truck against the Awards dated 27-09-2004 passed in Motor Accident Claim Petition Nos. 185 of 2001, 1860f2001, 1870f2001 and 189 of 2001. 3. Motor Accident Claim Petition No. 185 of 2001 was filed by the widow, minor children and parents of Laxman Singh Jalal claiming compensation of Rs. 10,00,000/- (Rupees Ten Lakhs only) for his death in the motor accident on 13-10-2001 when the offending vehicle Truck bearing Registration No. UP 02-D-1197 dashed his Tempo bearing registration no. UA-04-3765 resulting in serious injuries to Laxman Singh Jalal, Pushkar Singh, Bhuwan Singh and Nand Ram, who succumbed to their injuries the same day. Motor Accident Claim Petition No. 186 of 2001 was filed by the widow and minor children of deceased Pushkar Singh for grant of compensation of Rs. 8,00,000/- (Rupees Eight Lakhs only) for his death in the motor accident. The parents of deceased Bhuwan Singh were claimants in Claim Petition No. 187 of 2001 wherein compensation of Rs. 8,00,000/ - (Rupees Eight Lakhs only) was claimed by the claimants for his death. Motor Accident Claim Petition No. 189 of 2001 was at the behest of unfortunate widow and minor children of deceased Nand Ram, who claimed compensation of Rs. 8,00,000/- (Rupees Eight Lakhs only) for his death in the motor accident. 4. The owner and insurer of the truck contested the claim and denied their liability to pay compensation to the claimants in all the four claim petitions on the plea that the driver of the truck was not responsible for the accident and in fact the accident occurred due to negligence of Tempo driver himself. 5. The Tribunal on the evidence led by the parties held that all the four deceased persons, namely, Laxman Singh, Bhuwan Singh, Pushkar Singh and Nand Ram died on account of the injuries sustained by them in the motor accident on 13-10-2001; the accident occurred due to rash and negligent driving of the driver of the truck; and the insurer of the truck was liable to pay compensation to the claimants in all the four claim petitions. 6. 6. Considering the evidence led by the claimants about the income of the deceased persons; and the age of the deceased and the claimants, the Tribunal awarded compensation of Rs. 3,67,000/- (Rupees Three Lakhs Sixty Seven Thousand only) to the claimants in Claim Petition No. 185 of 2001; Rs. 3,67,000/- (Rupees Three Lakhs Sixty Seven Thousand only) to the claimants in Claim Petition No. 186 of 2001; Rs. 3,19,000/- (Rupees Three Lakhs Nineteen Thousand only) to the claimants in Claim Petition No. 187 of2001 and Rs. 3,67,000/- (Rupees Three Lakhs Sixty Seven Thousand only) to the claimants in Claim Petition No. 189 of 2001. 7. The insurer of the offending truck has filed these appeals against the Awards dated 27-09-2004 passed by the Tribunal in Motor Accident Claim Petition Nos. 185 of 2001, 186 of 2001, 187 of 2001 and 189 of 2001. 8. Sri TA Khan, the learned counsel for the appellant - Insurance Company, during the course of hearing sought to challenge the Awards passed in these four claim petitions on the grounds that the Tribunal has erred in holding that the driver of the truck was responsible for the accident, whereas, in fact the accident occurred due to sole negligence of the driver of the other vehicle Tempo; and the compensation of Rs. 3,19,000/- awarded by the Tribunal in Claim Petition No. 187 of 2001 and Rs. 3,67,000/- each in Claim Petition Nos. 185 of 2001, 186 of 2001 and 189 of 2001 is excessive. 9. Thus, the entire challenge in these four appeals, filed at the behest of the insurer of the truck, is confined to the finding of negligence recorded by the Tribunal holding the driver of the truck responsible for the accident and the quantum of the compensation awarded by the Tribunal. 10. The Apex Court in the case of National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and others reported in (2002) 7 SCC 456, while considering the scope of challenge in the appeal filed by the Insurance Company against the award, observed in paras 31 and 32 : "31. We have already held that unless the conditions precedent specified in Section 170 of the 1988 Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. We have already held that unless the conditions precedent specified in Section 170 of the 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 not implead 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 ground 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 appeal on grounds specified in subsection (2) of Section 149 of the 1988 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. 32. For the aforesaid reasons, our answer to the question is that even if no appeal is preferred under Section 173 of the 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. Thus, from the above quoted dictum of the Apex Court, it is evident that in the absence of permission under Section 170 of the Motor Vehicles Act, the findings in regard to the negligence/contributory negligence recorded by the Tribunal and the quantum of compensation are not open to challenge in an appeal filed by the Insurance Company against the Award. 12. 12. Sri T.A. Khan, the learned counsel for the appellant Insurance Company, after verifying from the Tribunal's records of all the four claim petitions, fairly and frankly conceded that permission under Section 170 of the Motor Vehicles Act to contest the claim on all available defences was neither sought by the appellant Insurance Company by filing an appropriate application nor it was granted by the Tribunal. 13. As permission under Section 170 of the Motor Vehicles Act was neither sought by the appellant Insurance Company nor granted by the Claims Tribunal, the appellant Insurance Company in these appeals cannot be permitted to challenge the findings recorded by the Tribunal about the negligence of the driver of the offending vehicle Truck and quantum of compensation awarded by the Tribunal in view of the dictum of the Apex Court in the case of National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and others (supra). 14. No other ground has been raised by the appellant Insurance Company either in the 'Memo of Appeal' or before us during the course of hearing. 15. In this view of the matter, the appeals filed by the appellant Insurance Company are liable to be dismissed and are hereby dismissed. 16. The impugned Awards dated 27-09-2004 passed by the Motor Accident Claim Tribunal in Motor Accident Claim Petition Nos. 185 of 2001, 186 of 2001, 187 of 2001 and 189 of 2001 are hereby affirmed. 17. No order as to costs.