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2009 DIGILAW 3282 (ALL)

NATIONAL INSURANCE v. GUDDI DEVI

2009-10-14

RAJESH CHANDRA, S.P.MEHROTRA

body2009
JUDGMENT By the Court.—The present appeal has been filed against the judgment and order /award dated 25.7.2009 passed by the Motor Accidents Claims Tribunal, Mainpuri in Claim Petition No. 318 of 2006, filed by the claimant-respondent Nos. 1 to 7 under Section 166 of the Motor Vehicles Act, 1988 on account of the death of Ram Prakash in an accident which took place at about 5.45 p.m. on 14.5.2006. 2. It was, inter-alia, averred in the Claim Petition that on 14.5.2006 at about 5.45 p.m., the deceased Ram Prakash with his wife Smt. Guddi Devi, Balister Singh, Prem Chandra, Raj Kishore and others while returning after attending a marriage ceremony in village Dalelpur at the place of the sister of the deceased,was waiting for vehicle on the road -side on GT Road, Kurawali-Etah Marg, a Mini Truck Tata 407 DL-1LG 391,which was coming from the direction of Etah and was being driven by the Driver rashly and negligently, hit the said Ram Prakash, resulting in his death on the spot. The Driver ran away with the said Mini Truck, i.e., the vehicle in question from the spot. The accident was witnessed by Smt.Guddi Devi and others. The First Information Report was lodged in regard to the accident, which was registered as Case Crime No. 174 of 2006 under Sections 279, 304A, Indian Penal Code in Police Station Kurawali, District Mainpuri. The deceased was aged 34 years at the time of his death and was a healthy person. The deceased was an agriculturist and was carrying on the business of sale and purchase of buffaloes, and his monthly income was not less than 7,000/- rupees. An amount of Rs. 24,25,000/- with interest @ 12 % per annum was claimed as compensation in the Claim Petition. 3. Joint Written Statement was filed by respondent Nos. 8 and 10. The Appellant-Insurance Company also filed its Written Statement. 4. The Tribunal framed four issues : Issue No. 1 was as to whether the Driver of the aforesaid vehicle in question while driving the same in rash and negligent manner, hit the said Ram Prakash resulting in the death of the said Ram Prakash. The Tribunal decided the said issue in the affirmative in favour of the claimant-respondent Nos. 1 to 7. Issue No. 2 was as to whether the vehicle in question was insured with the Appellant-Insurance Company at the time of the accident. The Tribunal decided the said issue in the affirmative in favour of the claimant-respondent Nos. 1 to 7. Issue No. 2 was as to whether the vehicle in question was insured with the Appellant-Insurance Company at the time of the accident. The Tribunal held that the vehicle in question was insured with the Appellant-Insurance Company at the time of the accident, and decided Issue No. 2 accordingly. Issue No. 3 was as to whether the Driver of the vehicle in question was having a valid and effective licence at the time of the accident. The Tribunal held that the Driver of the vehicle in question was having a valid and effective licence at the time of the accident, and decided Issue No. 3 accordingly. Issue No. 4 was regarding the relief, if any, to which the claimant-respondent Nos. 1 to 7 were entitled. The Tribunal held that the claimant-respondent Nos. 1 to 7 were entitled to compensation amounting to Rs. 4,89,500/- with interest @ 6% per annum. 5. The Appellant-Insurance Company has filed the present appeal against the said award. 6. We have heard Sri Saral Srivastava, learned counsel for the appellant and perused the record filed with the appeal. 7. From the perusal of the record, it is evident that an application under Section 170 of the Motor Vehicles Act, 1988 was filed on behalf of the Appellant-Insurance Company before the Tribunal. However, by the order dated 7.3.2009, the Tribunal rejected the said application. 8. 7. From the perusal of the record, it is evident that an application under Section 170 of the Motor Vehicles Act, 1988 was filed on behalf of the Appellant-Insurance Company before the Tribunal. However, by the order dated 7.3.2009, the Tribunal rejected the said application. 8. Section 170 of the Motor Vehicles Act, 1988 lays down 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.” Sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 referred to in Section 170 of the said Act is reproduced below : "(1)...................................................................................... (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely : (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely— (i) a condition excluding the use of the vehicle— (a) for hire or reward, where the vehicle is on the date of the contract insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non disclosure of a material fact or by a representation of fact which was false in some material particular. (3) to (7..................................................................”. 9. Reading Sections 170 and 149(2) of the Motor Vehicles Act, 1988 together, it is evident that in case the Tribunal grants permission to the insurer under Section 170, the insurer will get right to contest the Claim Petition on all or any of the grounds that are available to the person against whom the claim has been made. 9. Reading Sections 170 and 149(2) of the Motor Vehicles Act, 1988 together, it is evident that in case the Tribunal grants permission to the insurer under Section 170, the insurer will get right to contest the Claim Petition on all or any of the grounds that are available to the person against whom the claim has been made. However, if such permission is not granted by the Tribunal, then the insurer will be entitled to contest the Claim Petition on the limited grounds mentioned in sub-section (2) of Section 149 of the Motor Vehicles Act, 1988. 10. It follows, therefore, that in case an appeal is filed by the insurer against an award in a case where its application under Section 170 of the Motor Vehicles Act, 1988 was rejected by the Tribunal, it (insurer) will be able to challenge the award only on the limited grounds mentioned in sub-section (2) of Section 149 of the said Act. 11. As noted above, in the present case, the Tribunal rejected the application of the Insurance Company for permission under Section 170 of the Motor Vehicles Act, 1988. 12. In view of the rejection of the said application under Section 170 of the aforesaid Act, it is evident that the Appellant-Insurance Company can challenge the impugned award only on the grounds mentioned in sub-section (2) of Section 149 of the Motor Vehicles Act, 1988. Such grounds are evidently in respect of Issue Nos. 2 and 3. 13. As noted above, in regard to Issue Nos. 2 and 3, the Tribunal has recorded findings of fact that on the date of the accident, the vehicle in question was insured with the Appellant-Insurance Company, and the Driver of the vehicle in question was having a valid and effective licence. 14. Sri Saral Srivastava, learned counsel for the Appellant-Insurance Company has not been able to point out any error in the said findings recorded by the Tribunal. The Appellant-Insurance Company has failed to establish any infirmity or illegality in the impugned award on the grounds open to the Appellant-Insurance Company to raise in view of the provisions of sub-section (2) of Section 149 of the Motor Vehicles Act, 1988. 15. The Appellant-Insurance Company has failed to establish any infirmity or illegality in the impugned award on the grounds open to the Appellant-Insurance Company to raise in view of the provisions of sub-section (2) of Section 149 of the Motor Vehicles Act, 1988. 15. Sri Saral Srivastava, learned counsel for the Appellant-Insurance Company submits that the quantum of compensation as determined by the Tribunal is not correct as the Tribunal has erred in applying multiplier of 15 and has wrongly taken the monthly income of the deceased as Rs. 4,000/-. 16. In our opinion, as the application of the Appellant-Insurance Company under Section 170 of the Motor Vehicles Act,1988 was rejected by the Tribunal, it is not open to the Appellant-Insurance Company to raise the question of quantum of compensation, awarded by the Tribunal in the impugned award. The pleas raised in this regard by Sri Saral Srivastava, learned counsel for the Appellant-Insurance Company cannot, therefore be considered. 17. In view of the above, we are of the opinion that the appeal filed by the Appellant-Insurance Company lacks merits, and the same is liable to be dismissed. 18. The appeal is, accordingly, dismissed. However, on the facts and in the circumstances of the case, there will be no order as to costs. 19. The amount of Rs. 25,000/- deposited by the Appellant-Insurance Company while filing the present appeal, will be remitted to the Tribunal for being adjusted towards the amount payable under the impugned award. ————