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2011 DIGILAW 2099 (PNJ)

Oriental Insurance v. Sangeeta

2011-11-22

PERMOD KOHLI, TEJINDER SINGH DHINDSA

body2011
JUDGMENT Mr. Permod Kohli, J. (Oral) - CM No.5720 of 2011 CM is allowed. Delay in filing LPA is condoned. LPA No.2124 of 2011 This LPA arises out of order dated 5.9.2011 passed by the learned Single Judge dismissing CWP No.13789 of 2010 filed by the present appellant, Insurance Company against an award passed by the Motor Accident Claims Tribunal, Yamuna Nagar. Facts relevant for the purpose of disposal of this appeal are briefly noticed. 2. Respondents no.1 to 4 herein filed a claim petition being MACT Case No.13 of 2009 before the Motor Accident Claims Tribunal, Yamuna Nagar claiming compensation arising out of motor accident resulting in death of Corporal Rupesh Kamboj. The deceased was receiving salary of Rs.25,000/- per month. Claimants claimed compensation to the tune of Rs.25.00 lacs. Respondents no.5 and 6 were driver and owner of the offending truck whereas appellant herein i.e. the Insurer of the Truck was also impleaded as party respondent in the claim petition. After the trial, the Tribunal awarded an amount of Rs.42,78,760/-. The Tribunal also ruled that the Tribunal is justified in awarding compensation more than the claim made in the claim petition. The compensation amount also carried interest at the rate 7.5% per annum from the date of filing of the claim petition till actual realization of the amount. Certain directions were issued with regard to apportionment and disbursement of the compensation amount, keeping in view the fact that some of the claimants were minors. All the respondents were made liable for payment of compensation jointly and severally. 3. The Insurance Company, respondent in the claim petition being aggrieved of the award dated 20.1.2010 passed by the Tribunal, instead of availing the remedy of statutory appeal under Section 173 of the Motor Vehicles Act challenged the award by way of writ petition before the learned Single Judge of this Court, being CWP No.13789 of 2010. Learned Single Judge has dismissed the writ petition vide the impugned judgment dated 5.9.2011 holding that the writ petition itself is not maintainable. Rejecting the contention of the appellant herein that the award is unconscionable, learned Single Judge made certain observations on the issue of award being unconscionable. It is against the aforesaid judgment that the Insurance Company has preferred this appeal before us. 4. Mr. Rejecting the contention of the appellant herein that the award is unconscionable, learned Single Judge made certain observations on the issue of award being unconscionable. It is against the aforesaid judgment that the Insurance Company has preferred this appeal before us. 4. Mr. Ashwani Talwar, learned counsel for the appellant has raised two contentions- firstly that the award being unconscionable, the Insurance Company had the remedy of invoking extraordinary writ jurisdiction of this Court under Articles 226/227 of the Constitution of India and secondly that in view of the law laid down by Hon’ble Supreme Court in the latest judgment dated 13.10.2011 passed in bunch of Civil Appeals/SLPs including Civil Appeal No.6026-6027 of 2007 titled United India Insurance Co. Ltd. vs. Shila Datta & Ors., the appellant has had the right to challenge the award passed by the MACT even on the question of quantum. 5. We have heard learned counsel for the appellant who tried to impress upon us that once the award is unconscionable and in view of the aforesaid judgment of Hon’ble Supreme Court, the writ court should not have dismissed the writ petition as not maintainable. According to Mr. Talwar, the appellant had disadvantage in preferring the appeal as it would have been made to deposit a part of the compensation amount and secondly the appeal was barred by time. His further contention is that though earlier the law was that without resorting to provision of Section 170 of the Motor Vehicles Act before the Tribunal, the Insurance Company had no right to challenge the quantum of compensation, however, in view of the latest judgment of the Hon’ble Supreme Court referred to above, the Insurance Company has the right to challenge the quantum of compensation as well. On the last argument, Mr. Talwar has relied upon following observations of Hon’ble Supreme Court:- “11.Therefore, where the insurer is a party- respondent, either on account of being impleaded as a party by the tribunal under section 170 or being impleaded as a party-respondent by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under section 149(2) of the Act. The claim petition is maintainable against the owner and driver without impleading the insurer as a party. The claim petition is maintainable against the owner and driver without impleading the insurer as a party. When a statutory notice is issued under section 149(2) by the tribunal, it is clear that such notice is issued not to implead the insurer as a party-respondent but merely to put it on notice that a claim has been made in regard to a policy issued by it and that it will have to bear the liability as and when an award is made in regard to such claim. Therefore, it cannot, as of right, require that it should be impleaded as a partyrespondent. But it can however be made a partyrespondent either by the claimants voluntarily in the claim petition or by the direction of the Tribunal under section 170 of the Act. Whatever be the reason or ground for the insurer being impleaded as a party, once it is a party-respondent, it can raise all contentions that are available to resist the claim.” 6. We have thoughtfully considered the argument of Mr. Talwar on the question of right of the Insurance Company to challenge the quantum of compensation. We cannot have disagreement, in view of the law laid down by Hon’ble Supreme Court in the above referred judgment and even in some earlier judgments where Hon’ble Supreme Court has interpreted the provisions of Motor Vehicles Act and commented upon the right of the Insurance Company to challenge the quantum of compensation where the award of the Tribunal is unconscionable and does not constitute a just compensation. However, we have no reason to accept the contention of Mr. Talwar regarding the right of the Insurance Company to invoke writ jurisdiction of this Court when the specific regular statutory remedy is available. Merely because the Insurance Company is required to deposit the compensation or the Insurance Company has failed to prefer the appeal within the prescribed period of limitation, does not ipso facto provide a ground to the Insurance Company to invoke extraordinary writ jurisdiction of this Court. It would be laying an absolutely bad precedent. Merely because the Insurance Company is required to deposit the compensation or the Insurance Company has failed to prefer the appeal within the prescribed period of limitation, does not ipso facto provide a ground to the Insurance Company to invoke extraordinary writ jurisdiction of this Court. It would be laying an absolutely bad precedent. If we accept this contention, then in each and every case where the Insurance Company or any of the parties fails to prefer the appeal within the prescribed period of limitation or is required to deposit any amount, in view of the statutory requirement of a particular enactment like Motor Vehicles Act, Workmen’s Compensation Act etc., the party would be free to invoke extraordinary writ jurisdiction of this Court under Articles 226/227 of the Constitution of India ignoring the statutory available remedy under law. It is not in dispute that the High Court writ jurisdiction under Articles 226/227 of the Constitution of India does not create any impediment for this Court to entertain writ petition under peculiar circumstances where the facts so warrant, but it cannot be accepted as a norm as it would amount to making the statutory provision otiose. We feel that in the present case, the appellant should have resorted to statutory remedy provided under law by seeking condonation of delay etc. We are in complete agreement with the judgment of learned Single Judge regarding the maintainability of the writ petition. 7. In view of our observations concurring with the opinion of learned Single Judge that the writ petition filed by the appellant was not maintainable, Mr. Talwar has made a prayer for leave of this Court to withdraw the writ petition with liberty to file a regular statutory appeal. We have no reason to disallow such a prayer. We accordingly grant liberty to the appellant to withdraw the writ petition with liberty to file a statutory appeal. The writ petition is accordingly dismissed as withdrawn with liberty to file a statutory appeal. Resultantly, this appeal is rendered infructuous and disposed of as such. We find that the learned Single Judge has made certain observations on the merits of the issue relating to quantum of compensation. The writ petition is accordingly dismissed as withdrawn with liberty to file a statutory appeal. Resultantly, this appeal is rendered infructuous and disposed of as such. We find that the learned Single Judge has made certain observations on the merits of the issue relating to quantum of compensation. Since the scope of appeal is much wider and inter alia, includes the right to reappraise the evidence, any observation of the learned Single Judge in the impugned judgment shall not preclude the appellant from raising all available pleas in the statutory appeal to be filed. ---------0.B.S.0------------