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2008 DIGILAW 43 (DEL)

NEW INDIA ASSURANCE CO. LTD. v. HARI OM SHARMA

2008-01-16

KAILASH GAMBHIR

body2008
JUDGMENT : Kailash Gambhir, J. 1. The appellant, New India Assurance Co. Ltd., insurer of the offending vehicle has preferred an appeal challenging the impugned order dated 27.9.2006 passed by the learned M.A.C.T. 2. The brief facts, which are necessary for deciding the present appeal, inter alia, are that respondent Nos. 3 to 6 are the legal heirs of deceased Shiv Pratap Mishra who died due to the injuries sustained in the accident. On 28.11.2003, the deceased Shiv Pratap Mishra was going on foot near the I.G.I. Stadium, ITO when he was hit by a bus bearing registration No. DL 1P-A 7916 driven by the respondent No. 1 in a rash and negligent manner due to which he received serious bodily injuries and rushed to L.N.J.P. Hospital where he was declared dead. 3. The Claims Tribunal after taking into consideration the facts of the case as well as evidence led by the parties had passed an award in the sum of Rs. 13,45,140 along with interest at the rate of 6 per cent per annum payable from the date of the institution of the petition till the date of realisation. The said order passed by the Tribunal is now under challenge in the present appeal. 4. I have heard learned Counsel for the appellant at considerable length. Appeal is liable to be dismissed at the admission stage itself as the very maintainability of the appeal is in dispute. Appellant cannot assail the findings of the Tribunal on the quantum of compensation as determined by the Tribunal. The appellant had not taken over the defence of the owner and driver as envisaged u/s 170 of the Motor Vehicles Act and, therefore, is debarred from challenging the impugned award so as to assail the findings of the Tribunal on the quantum of compensation. 5. Mr. Vijay Prakash, counsel for the appellant, vehemently disputes this position and contends that the insurer cannot be rendered remediless especially in a case where the Tribunal has awarded an excessive amount of compensation in favour of the claimants ignoring all basic principles of law for the award of compensation. Counsel for the appellant has also placed reliance on the judgment of the Supreme Court in New India Assurance Company Ltd. Vs. Counsel for the appellant has also placed reliance on the judgment of the Supreme Court in New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and Others, to contend that the Apex Court had interfered to lower down the compensation amount even in a case where the insurer had not taken any permission from the court u/s 170 of the Motor Vehicles Act. Counsel for the appellant also contends that the Hon'ble Apex Court has already referred the said issue of lack of competence of the insurer to assail the findings of the Tribunal on the ground of quantum of compensation and negligence to a larger Bench and, therefore, this Court may await the decision of the Supreme Court in this regard. 6. After having given my thoughtful and conscious consideration to the issue involved in the present case, I am of the view that the issue is no more res Integra as in the judgments cited by respondent, the Hon'ble Apex Court has authoritatively held that in the absence of permission sought from the court as envisaged u/s 170 of the Motor Vehicles Act, the insurer has no right to file an appeal to challenge the quantum of compensation or the finding of the Tribunal as regards the negligence or contributory negligence of offending vehicles are concerned. It would be appropriate to refer Section 170 of the Motor Vehicles Act as under: 170. Impleading insurer in certain cases. Where in the course of any inquiry, the Claims Tribunal is satisfied that (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim, it may, 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. 7. 7. It is an admitted case between the parties that no permission u/s 170 of the Motor Vehicles Act was sought by the appellant which clearly means that the procedure laid down u/s 170 of the Motor Vehicles Act was not followed. In the judgment of the Supreme Court in Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, the Supreme Court has held that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if 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 such an order should be a reasoned order of the Tribunal. In such circumstances unless the said procedure is followed, the appellant insurer cannot have a wider defence on merits than what is available to it by way of a statutory defence. The relevant part of para 4 of the said judgment in this regard is referred as under: (4) It clearly shows that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the insurance company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence.... 8. In view of the said legal position, I cannot appreciate the argument of counsel for the appellant that even without seeking permission of the court as required u/s 170, the appellant can proceed with the appeal. Once the application u/s 170 of the Motor Vehicles Act was preferred by the appellant before the Tribunal for taking over the defence of an owner or driver, the Tribunal is required to pass specific order and that too a reasoned order as per the observations of the Apex Court referred above and, therefore, in the instant matter the argument of the counsel for appellant cannot be appreciated that non-filing of an application u/s 170 of the Motor Vehicles Act by the appellant in this regard is no bar in preferring present appeal. 9. 9. In the light of the above discussion, I do not find any merit in the submission of counsel for the appellant. The judgment cited by the counsel in New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and Others, has not dealt with the said legal proposition and, therefore, the same is not applicable in the facts and circumstances of the present case. There is no merit in the appeal and the same is dismissed.