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2009 DIGILAW 628 (JK)

Oriental Insurance Co. Ltd. v. Gulzar Begum

2009-12-08

BARIN GHOSH

body2009
1. In terms of Sub-section (2) of Section 149 of the Motor Vehicles Act, 1988, an adjudicated claim against the owner of a vehicle, involved in an accident, cannot be enforced against the insurer of the vehicle, unless the insurer is made a party to the proceedings for adjudicating the claim. While the insurer is, thus, made a party to such proceeding, he has been given certain specific defences to the claim. A defence to the quantum of the claim is not one of the defences available under Sub-section (2) of Section 149 of the Act. In order to avoid collusion and connivance in between claimant and the person against whom, principally, such claim is made, i.e., owner of the vehicle, the insurer, by Section 170 of the Act, has been empowered to approach the Tribunal to obtain an order authorising it to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made, in addition to those provided in Sub-section (2) of Section 149 of the Act. 2. In the instant case, the claim against the owner proceeded ex parte. The same was only defended by the appellant Insurance Company. Despite the said state of affair, the appellant did not apply for obtaining permission, under Section 170 of the Act, to contest the claim on all or any of the grounds that were available to the owner of the vehicle. The defence put forward by the appellant under Sub-section (2) of Section 149 of the Act failed. The appellant is not aggrieved thereby. The appellant is aggrieved in view of the amount of the claim adjudged to be the rightful compensation payable to the claimants for the loss sustained by them by reason of the accident. 3. When appellant was not entitled to defend the claim on any other ground, apart from those mentioned in Sub-section (2) of Section 149 of the Act, without permission under Section 170 of the Act, the appellant was not entitled to take such defence before the Tribunal and, accordingly, cannot take such defence in an appeal preferred against the award on the analogy that an appeal is nothing but a continuation of the original proceedings. 4. The appeal fails and the same is, accordingly, dismissed.