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2012 DIGILAW 818 (HP)

Oriental Insurance Company Limited v. Sarita

2012-11-12

V.K.AHUJA

body2012
Judgment V.K. Ahuja, J. The present writ petition has been filed by the petitioner/Insurance Company for quashing the award dated 31.7.2009 passed by the learned Motor Accident Claims Tribunal, Solan, vide which an amount of Rs.6,00,800/- alongwith interest and cost, has been awarded in favour of respondent No.1/claimant. 2. Briefly stated, the facts of the case are that the respondent/claimant filed a petition under Section 166 of the Motor Vehicles Act for the grant of compensation on account of the injuries received by her. She alleged that she was traveling in Maruti Van owned by respondent No. 2, which met with an accident due to rash or negligent driving of respondent No. 2. She suffered multiple injuries and fracture resulting in permanent disablement. The FIR was registered on the same day. The petitioner remained under treatment and thereafter, filed a petition claiming compensation to the extent of Rs. 5 Lacs for the injuries sustained by her. 3. The petition was contested by both the respondents. Issues were farmed by the learned Tribunal, parties led their evidence and the learned Tribunal vide its impugned award allowed the claim petition. 4. Being aggrieved, the petitioner has filed the present petition by way of the present writ petition. 5. Notice of the petition was issued to the respondents and record of the case was called for. 6. I have heard learned counsel for the petitioner and claimant/respondent No. 1. 7. The submission made by the learned counsel for the petitioner/Insurance Company were that the case of the petitioner has been prejudiced since it could not take all the defences open to it since its application filed under Section 170 of the Motor Vehicles Act was not allowed or rejected by the learned Tribunal and though the application remained pending, the award was passed by the learned Tribunal. It was further submitted by the learned counsel for the petitioner that the defences were available to the petitioner/Insurance Company under Section 149(2) of the Act and the defences which could be taken, were in regard to negligence, compensation etc., which could not be taken until and unless, the application was allowed, as filed by the petitioner/Insurance Company under Section 170 of the Motor Vehicles Act. 8. To substantiate its case, learned counsel for the petitioner has relied upon a decision of the learned Single Judge of this Court in Oriental Insurance Company Vs. Sh. 8. To substantiate its case, learned counsel for the petitioner has relied upon a decision of the learned Single Judge of this Court in Oriental Insurance Company Vs. Sh. Parveen and others, 2011(2) Him L.R. 1007. 9. In that case, an application under Section 170 of the Act was filed by the petitioner/Insurance Company and reply was also filed by the respondent, but no orders were passed on this application. It was held by the learned Single Judge as under:- “4. An Insurance Company is not permitted to contest the claim on any ground other than those which are its statutory defences unless it has obtained permission of the Motor Accident Claims Tribunal under Section 170 of the Act to contest the claim on all grounds. Therefore, the Insurance Company cannot contest the petition on the issues of negligence and quantum nor can it file an appeal on these grounds unless it has obtained permission envisaged under Section 170 of the Act. It is thus clear that Section 170 of the Case gives a very valuable right to the Insurance Company. Though, an application was filed, the Tribunal did not care to decide this application, and this has caused grave injuries to the Insurance Company calling for interference in these proceedings.” 10. It is, therefore, clear from the above discussion that the defences were available to the Insurance Company under Section 149(2) only if the application under Section 170 of the Act filed by the Insurance Company was allowed. 11. On the other hand, learned counsel for the respondent/claimant had submitted that no prejudice has been caused to the Insurance Company. To substantiate his submissions, he relied upon the decision of the Hon’ble Supreme Court of India in United India Insurance Company Limited Vs. Shila Datta and others, (2011) 10 Supreme Court Cases 509. A perusal of the decision shows that the Insurance Company if it is impleaded as a party, it can take all the defences available under Section 170 of the Motor Vehicles Act even though, no application is filed. However, if merely a notice under Section 149(2) of the Act is issued to the Insurance Company, who is not impleaded as a party, it has to take permission of the Court under Section 170 of the Motor Vehicles Act. However, if merely a notice under Section 149(2) of the Act is issued to the Insurance Company, who is not impleaded as a party, it has to take permission of the Court under Section 170 of the Motor Vehicles Act. Observations made in Paras 14, 15 and 20 are relevant and are being reproduced below:- “When an insurer is impleaded as a party-respondent to the claim petition, as contrasted from merely being a noticee under Section 149 (2) of the Act, its rights are significantly different. The Act does not require the claimants to implead the insurer as a party-respondent. But if the claimants choose to implead the insurer as a party, not being a noticee under Section 149 (2), the insurer can urge all grounds and not necessarily the limited grounds mentioned in Section 149(2) of the Act. If the insurer is already a respondent (having been impleaded as a party-respondent), it need not seek the permission of the Tribunal under Section 170 of the Act to raise grounds other than those mentioned in Section 149(2) of the Act. 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 entire scheme and structure of Chapters XI and XII is that the claimant files a claim petition only against the owner and driver and the Tribunal issues notice to the insurer under Section 149(2) so that it can be made liable to pay the amount awarded against the insurer and if necessary, deny liability under the policy of insurance, on any of the grounds mentioned in Section 149(2). If an insurer is only a noticee and not a party-respondent, having regard to the decision in Nicolletta Rohtagi case, it can defend the claim only on the grounds mentioned in Section 149(2) and not any of the other grounds relating to merits available to the insured respondent. That is the position even where the claim proceedings are initiated suo motu under Sections 166(4) and 158(6) of the Act, without any formal application by the claimants, as the insurer is only a noticee under Section 149(2) of the Act.” 12. That is the position even where the claim proceedings are initiated suo motu under Sections 166(4) and 158(6) of the Act, without any formal application by the claimants, as the insurer is only a noticee under Section 149(2) of the Act.” 12. It is clear from the above discussion that once the Hon’ble Supreme Court of India has held that there is no necessity to file an application under Section 170 of the Motor Vehicles Act, the learned Tribunal could have simply passed an order rejecting the application that the Insurance Company is entitled to take all the defences. No order was passed by the learned Tribunal making such observation and since the law was clear prior to this judgment that the Insurance Company has to be given permission under Section 170 of the Motor Vehicles Act to take all the defences available to it, it cannot be assumed that the petitioner’s counsel had the knowledge that he can take all the defences. This judgment was passed by the Hon’ble Supreme Court of India on October 13, 2011, that is, after the decision in this case and, therefore, apparently this decision could not have been in the knowledge either of the Insurance Company or the learned Tribunal. Once the application was not rejected, a perusal of the record shows that neither any questions were put up on behalf of the Insurance Company to the petitioner’s witnesses in regard to the negligence or quantum, nor any evidence was led by the Insurance Company except filing the copy of the Insurance Policy. 13. In the facts and circumstances of the case, only conclusion that can be drawn as observed by the learned Single Judge as reproduced above is that prejudice has been caused to the Insurance Company and as such, the case has to be remanded back to the learned Tribunal for fresh decision after passing appropriate orders on the application under Section 170 of the Motor Vehicles Act. Needless to say that since the award was passed in the year 2009, the learned Tribunal shall take steps to dispose of the matter by 31st March, 2013. Parties through their counsel are directed to put up appearance before the learned Tribunal on 26th November, 2012. Record be returned.