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2010 DIGILAW 1058 (HP)

National Insurance Co. Ltd. v. Bishambhari Devi

2010-08-23

V.K.AHUJA

body2010
JUDGMENT V.K. Ahuja, J. 1. This is an appeal filed by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act (hereinafter referred to as 'the Act') against the award passed by the learned Motor Accident Claims Tribunal-III, Kangra at Dharamshala, H.P., dated 29.10.2008, vide which the claim petition filed by claimant/respondent No. 1 under Section 166 of the Act was allowed and she was held entitled to a sum of Rs. 3,23,105/- payable by the appellant/Insurance Company. The owner/driver and the Insurance Company contested the petition. 2. I have heard the learned Counsel for the parties and have gone through the record of the case. 3. The first point taken by the learned Counsel for the appellant was that the amount of compensation awarded by the learned Tribunal was excessive in so far as the actual loss to the shop in question was concerned. During the course of arguments, learned Counsel for respondent No. 2 has pointed out that the application filed by the Insurance Company under Section 170 of the Act to contest the petition on the grounds available to the driver and owner was rejected by the learned Tribunal and as such the Insurance Company is not entitled to challenge the findings of the learned Tribunal on the question of quantum. 4. A perusal of the order passed by the learned Tribunal, dated 27.7.2007, shows that the application under Section 170 of the Act filed by the Insurance Company for permission to contest the petition on the grounds available to respondents No. 1 and 2 was rejected by the learned Tribunal and as such the Insurance Company cannot dispute the findings of the learned Tribunal in regard to the quantum. 5. 5. In this regard, a reference can be made to the provisions of Sub-section (2) of Section 149 of the Motor Vehicles Act, which reads as under: (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 of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organized 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 nondisclosure of a material fact or by a representation of fact which was false in some material particular. 6. Reliance was placed on the decision of the Apex Court in National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. (2002) 7 SCC 456. The observations made in Para-14 are relevant and are being reproduced below: 14. 6. Reliance was placed on the decision of the Apex Court in National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. (2002) 7 SCC 456. The observations made in Para-14 are relevant and are being reproduced below: 14. 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 judgment 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. 7. It is, therefore, clear from perusal of the above provisions of the Act as well as the observations made by their Lordships that the insurer cannot avoid its liability on any other grounds except those mentioned in Sub-section (2) of Section 149 of the Motor Vehicles Act, 1988. The grounds available are that breach of condition in regard to the license and the vehicle taken on hire or reward etc. However, no appeal lies on the ground of quantum by the Insurance Company once the permission has not been granted under Section 170 of the Act to contest the petition on other grounds also. 8. It follows from the above discussion that the appellant/Insurance Company is not entitled to contest the petition on the ground of quantum once the application under Section 170 of the Act was rejected by the Court. 9. 8. It follows from the above discussion that the appellant/Insurance Company is not entitled to contest the petition on the ground of quantum once the application under Section 170 of the Act was rejected by the Court. 9. The other ground raised by the learned Counsel for the appellant/Insurance Company was that the driver was not having a valid and effective driving license to drive the vehicle. A perusal of the record shows that the respondents had examined RW-2 Gopal Kishore, from the office of DTO, Hoshiarpur and a perusal of his statement shows that as per the record of their office, the license was valid for HGV/HPV for which there was an endorsement. The evidence led by the Insurance Company did not establish that the driver was not possessing a valid and effective driving license and as such the findings recorded under issue No. 6 also in this regard are liable to be affirmed. 10. In view of the above discussion, the appeal filed by the appellant is dismissed, with costs assessed at Rs. 5,000/-, payable by the appellant to respondent No. 1/claimant. The appeal is disposed of accordingly.