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2008 DIGILAW 12 (JK)

Oriental Insurance Co. Ltd. v. Jan Mohd.

2008-01-30

J.P.SINGH

body2008
1. Oriental Insurance Company Limited has filed this appeal under Section 173 of the Motor Vehicles Act, 1988, questioning Motor Accidents Claim Tribunal Bhaderwahs award of 28.5.2005, awarding an amount of Rs. 2,44,000/- (two Lacs forty four thousand) to respondent Jan Mohd along with interest at the rate of 9% from the date of filing of the claims petition till realization of the awarded amount, as compensation for the death of his son Mudasar Hussain, who had died in a motor vehicular accident on 5.6.2000 because of the rash and negligent driving of Bus bearing registration no. JK02D-5355 at Manoti Gandoh District Doda. 2. Abandoning rest of the grounds taken in the memo of appeal, learned counsel for the appellant has restricted his challenge to the award of the Tribunal only in so far as it pertains to the quantum of compensation awarded by the Tribunal. 3. Respondent no.1s counsel, on the other hand, submits that the appellant cannot question the award of the Tribunal regarding quantum of compensation because it had not sought permission of the Tribunal to contest the award on grounds other than those which are available to an insurer under Section 149(2) of the Motor Vehicles Act, 1988. 4. Learned counsel for the appellant submitted that even if permission to contest the award on grounds other than those which are available to an insurer under Section 149 (2) of the Motor Vehicles Act, 1988, had not been granted by the Tribunal to the appellant, it could still maintain an appeal because the Tribunal had permitted it to cross examine the claimants witness without any restriction thereby impliedly permitting it to contest the claim of respondent No. 1. Reliance in support of the submission has been placed on a Single Bench judgment of this Court in New India Assurance Company Limited v. Dr. Sandeep Dhar and ors, CIMA No. 219/98. Learned counsel further submitted that even if the under Article 226/227 of the Constitution of India and under Section 103/104 of the Constitution of Jammu and Kashmir to see as to whether the Tribunals award was un-sustainable on the admitted facts, and the law laid down by Honble Supreme Court of India. 5. I have considered the submissions of learned counsel for the parties. 5. I have considered the submissions of learned counsel for the parties. Relying upon a Division Bench Judgment of this Court in National Insurance Company Limited v. Bashir Ahmad Gojri and others, reported as 2000 ACJ 1108, and a Division Bench Judgment of Allahabad High Court in Oriental Fire and General Insurance Company Ltd. and another v. Rajindra Kaur reported as 1989 ACJ 961, it has been held in New India Assurance Co. Ltd. v. Dr. Sandeep Dhar and others that as the claimants had not raised any objection before the Tribunal that the appellant Insurance company cannot resist the claim except the grounds available to it under Section 149 (2) of the Act, so the Tribunal shall be deemed to have granted permission to contest the claim petition on the grounds other than those available to an insurer under Section 149 (2) of the Act. Insurers right to appeal, in these circumstances, was thus upheld by the Court. 6. I have gone through the Division Bench judgments referred in New India Assurance Co. Ltd. v. Dr. Sandeep Dhar and others as also the judgment delivered in Dr.Sandeep Dhars case. 7. These judgments, do not refer to the law which has been laid down by Honble Supreme court of India in National Insurance Co. Ltd., Chandigarh v. Nicoletta Rohtagi and others reported as (2002) 7 SCC 456, where, dealing with the question of availability of right of appeal to an insurer who had not sought permission under Section 170 of the Motor Vehicles Act, had been dealt with as follows: - "Sub-section (7) of Section 149 of the 1988 Act clearly indicates in what manner sub-section (2) of Section 149 has to be interpreted. Sub-section (7) of Section 149 provides that no insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgments as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be. 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 the 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 the 1988 Act. 15. It is relevant to note that Parliament, while enacting sub-section. (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not find place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If Parliament had intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of conditions of insurance policy in sub-section (2) of Section 149. If we permit the insurer to take any other defence other than those specified in sub-section (2) of Section 149, it would mean we are adding more defences to the insurer in the statute which is neither found in the Act nor was intended to be included. 16. 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 the 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." 8. Article 141 of the Constitution of India provides that the law declared by the Honble Supreme Court shall be binding on all Court within the territory of India. 9. Following the mandate of the Constitution, I would accordingly hold that the appellant does not have any right to file the appeal to question the quantum of compensation awarded by the Tribunal in the absence of the permission granted to it by the Tribunal to contest the award on grounds other than those which are available to an insurer under Section 149 (2) of the Act. First submission raised by learned counsel for the appellant, therefore, fails and is accordingly rejected. 10. I will now examine the second contention of learned counsel for the appellant as to whether the extraordinary jurisdiction of the Court can be invoked by the appellant who does not have any right to appeal against the judgment in terms of the statute which governs the lis. 11. Section 173 of the Motor Vehicles Act provides an insurer the right to file an appeal against an award of the Tribunal before the High Court on limited grounds available to it under Section 149(2) of the Act. The appeal being a creation of the statute may not thus permit the insurer to take any plea other than those which are available to an insurer under Section 149(2) of the Act. The right of the insurer being limited cannot thus be enlarged by seeking exercise of jurisdiction under Article 226/227 of the Constitution of India, or for that matter, under Section 103/104 of the Constitution of Jammu and Kashmir. Where a statutory remedy to file an appeal has been provided for, it may not be open to the High Court to exercise its extra ordinary civil writ jurisdiction. The supervisory jurisdiction conferred on the High Courts under Article 226 of the Constitution is confined only to see whether any inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, muchless an error of law. "In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate Court. It is also not permission to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior Court or Tribunals purports to have passed the order or to correct errors of law in the decision", was so held by Honble Supreme Court of India in Sadhana Lodh v. National Insurance Company Ltd. and another, reported as (2003) 3 SCC 524. This view has been reiterated by the Supreme Court in Bijoy Kumar Dugar v. Vidhya Dhar Dutta and ors., reported as 2006(2) Supreme 374. 12. This view has been reiterated by the Supreme Court in Bijoy Kumar Dugar v. Vidhya Dhar Dutta and ors., reported as 2006(2) Supreme 374. 12. Section 104 of the Constitution of Jammu and Kashmir, though confers power of superintendence and control of subordinate Courts in the High Court, yet this provision does not confer any such power of superintendence over the Tribunals. 13. Going by the law laid down by Honble Supreme Court of India in the above quoted two judgments and keeping in view the provisions of Section 104 of the Constitution of Jammu and Kashmir, I am of the opinion that appellant-company cannot invoke this Courts extra ordinary civil writ jurisdiction to question the award when it had abandoned the grounds taken in the memo of appeal to contest the claim of the respondents on grounds other than those available to it under Section 149(2) of the Motor Vehicles Act. 14. This appeal has therefore been rendered incompetent which is accordingly dismissed. 15. Amount deposited by the appellant in this Court, along with interest accrued thereon, shall be a released in favour of respondent no.1 on his proper identification in accordance with the award.