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2019 DIGILAW 400 (GAU)

National Insurance Co. Ltd. v. Lalnunpari

2019-03-29

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Johny L. Tochhawng, the learned counsel for the appellant and Mr. Zochhuana, the learned counsel for the respondent No. 1. None appears for the respondent Nos. 2 and 3. 2. This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 (MV Act, 1988) by the appellant Insurance Company against the Judgment & Award dated 12.06.2018, passed by the learned Member-cum-Presiding Officer, Motor Accident Claims Tribunal, Aizawl, (The Tribunal) in MACT Case No. 65/2007. The Tribunal through the impugned Judgment and Award has awarded a sum of Rs. 8,35,800/- to the respondent No. 1 on account of the death of Smt. Krosmawii, i.e. the sister of the respondent No. 1 along with interest @ of 7% per annum from the date of filing the claim application, i.e. 01.08.2007. 3. Brief facts of the case is that the deceased Smt. Krosmawii, aged 24 years, while travelling in a motor vehicle, i.e. Tata Sumo-Victa-LX, bearing Registration No. MZ01-0490 belonging to the respondent No. 3 in the appeal and driven by the one Mr. R. Vanlalhruaia, met with an accident between Chhiahtlang and Chhingchhip on 30.05.2007. The Sumo vehicle coming towards Aizawl from Serchhip with 9 passengers in it had rolled down to the gorge about 140 feet from the main road of National Highway No. 54.2 (two) passengers, namely, Sh. T. Lalchhuanga and Smt. Krosmawii succumbed to their in-juries and died on the spot. As a result, the father of the deceased Krosmawii filed a claim for compensation before the Tribunal, i.e. MACT Case No. 65/2007. The claim was clubbed together with another case i.e. MACT Case No. 76/2007, which was said to be filed by one Mr. Rosanga, who claimed to be the widower of the deceased. However, the 2 cases after being clubbed together were dismissed for default and thereafter, a restoration application only in respect of MACT Case No. 65/2007 was filed. The restoration application was however dismissed by the Tribunal and as a result, the claimant approached this Court by filing a revision petition. The revision petition was disposed of by remanding the case back to the Tribunal for considering the case on merit. The learned Tribunal thereafter, dismissed the case on merit and which again prompted the claimant to approach this Court by filing MAC Appeal No. 2/2015. The revision petition was disposed of by remanding the case back to the Tribunal for considering the case on merit. The learned Tribunal thereafter, dismissed the case on merit and which again prompted the claimant to approach this Court by filing MAC Appeal No. 2/2015. The appeal was again disposed of by this Court by remanding the case back again to the Tribunal for fresh consideration. Pursuant to the remand, the impugned Judgment and Award dated 12.6.2018, which is presently under challenged was passed by the Tribunal. 4. Mr. Johny L. Tochhawng, the learned counsel for the appellant Insurance Company advancing his arguments submits that the original claimant hails from Burma. As per the evidence on record, the claimant neither visited Mizoram before or after the deceased expired and that he filed the claim petition by executing a power of attorney. 5. The learned counsel further submits that the claimant/respondent No. 1 miserably failed to establish any dependency so as to be awarded any compensation. He submits that as per the evidence on record, the deceased was not employed anywhere during the relevant time, i.e. when the accident occurred and in fact, she was being looked after by the claimant's witness No. 1 i.e. Mr. C.V. Thuama. He further submits that the claimant Sh. Laltanngaia, who claimed to be the father of the deceased is not a dependent. Likewise, Smt. Lalnunpari, who substituted Sh. Laltanngaia on account of his death being the sister of the deceased person also cannot be a dependent. The law in this regard is well settled according to Mr. Johny L. Tochhawng. To substantiate his submission, the learned counsel refers to the decision of the Apex in the case of Reshma Kumar and Others vs. Madan Mohan and Another, (2013) 9 SCC 65 and also the decision rendered in Sarla Verma and Others vs. Delhi Transport Corporation, (2009) 6 SCC 121 . The learned counsel submits that the decision rendered by the Apex Court in Sarla Varma and Others (Supra) was again relied upon in Reshma Kumar and Others (Supra). The learned counsel submits that the decision rendered by the Apex Court in Sarla Varma and Others (Supra) was again relied upon in Reshma Kumar and Others (Supra). The learned counsel also refers to the decision passed by a coordinate Bench of this Court in 2018 (3) GLT 572 : MAC Appeal No. 48/2012, United India Insurance Company Ltd. vs. Sri Girish Keot, vide Judgment and Order dated 30.10.2017 and submits that without there being any dependency found, this Court had modified the impugned Judgment and Award passed by the Tribunal concerned. 6. Mr. Johny L. Tochhawng further submits that there was also great delay in the issuance of the Birth Certificate of the deceased. He submits that the deceased expired on 30.05.2007 whereas, the Birth Certificate was issued on 16.07.2007, i.e. after 46 days. He therefore submits that the delay in issuance of the Birth Certificate and in fact, the death of the deceased itself will make the case of the claimant to be unreliable and therefore, the learned Tribunal could not have acted upon the same to award compensation to the claimant. The learned counsel further refers to Section 140 of the MV Act and submits that under the given facts and circumstance, the claimant would only be at best entitled to a sum of Rs. 50,000/- and no further amount beyond that. The learned counsel also submits that although the Tribunal was unable to understand as to how the claimant being a citizen of Burma could file the claim, but nevertheless, the Tribunal proceeded to award compensation in his favor. Therefore, the impugned Judgment passed is contradictory and under such circumstance, the conclusion to award compensation to the claimant is unsustainable. 7. Mr. Johny L. Tochhawng, the learned counsel also submits that there is no MVI report produced before the Tribunal to show that the braking system of the vehicle concerned was malfunctioning and therefore, the finding of the Tribunal on this issue is only misconceived. 8. Appearing for the respondent No. 1, Mr. Zochhuana, the learned counsel at the outset submits that the Insurance Company can only raise defence within the parameters of Section 149(2) of the M.V. Act. 8. Appearing for the respondent No. 1, Mr. Zochhuana, the learned counsel at the outset submits that the Insurance Company can only raise defence within the parameters of Section 149(2) of the M.V. Act. In an appeal filed by the Insurance Company, if the grounds prescribed beyond Section 149(2) of the MV Act is sought to be raised, prior permission or leave under Section 170 of the same Act has to be invariably obtained by the Insurance Company. In the present case, the admitted position is that no such leave was obtained by the Insurance Company or the appellant and therefore, the grounds taken in the appeal are not only unsustainable but, the appellant itself do not have any locus standi to raise such grounds. To drive home his submission, Mr. Zochhuana relies upon the decision of the Apex Court rendered in Rekha Jain vs. National Insurance Company Limited, (2013) 8 SCC 389 . 9. The learned counsel by referring to the deposition of Sh. C.V. Thuama, the power of attorney holder of the claimant submits that the deceased engaged herself in various businesses and her main occupation was weaving a Mizo Handloom. Whenever she earned money, she used to give the same to him and Mr. C.V. Thuama used to send the money to the parents of the deceased, who were staying in other village. He submits that merely because the deceased was said to have eloped with another person at the relevant time, the same would not mean that the deceased had no income at all. The deposition of employer of the deceased Mr. J. Rengliana would clearly go to show that she was being paid Rs. 4,500/- per month, while being employed in Zote Handloom Industries at Bawngkawn. Mr. Zochhuana also submits that in so far as the averments and the allegations leveled by Mr. Rosanga as observed by the Tribunal in the Judgment & Award cannot have any evidentiary valve, inasmuch as, the claim filed by Mr. Rosanga himself, i.e. MACT Case No. 76/2007 after being dismissed for default was never restored. The claim of the respondent No. 1 according to Mr. Zochhuana is further fortified by the Heirship Certificate issued by the competent Court and which was exhibited as Exhibit-C-15, without any objection from any quarter. Rosanga himself, i.e. MACT Case No. 76/2007 after being dismissed for default was never restored. The claim of the respondent No. 1 according to Mr. Zochhuana is further fortified by the Heirship Certificate issued by the competent Court and which was exhibited as Exhibit-C-15, without any objection from any quarter. He thus submits that under the given facts and circumstances, interference of the impugned Judgment & Award passed by the learned Tribunal is not called for and the appeal being without any merit, the same should be dismissed. 10. I have heard the submissions advanced by the rival parties and I have perused the materials available on record. 11. As may be noticed, the case has a checkered history. Although the appellant Insurance Company has raised several grounds in the memorandum of appeal but before considering the same, it will be apposite to look into the grounds available to an Insurance Company under the MV Act, particularly under Section 149 (2) of the MV Act. For ready perusal, Sub-Section (2) of Section 149 of the MV Act may be reproduced below:- "(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. (b) for organized racing and speed testing. (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle. (d) without side-car being attached where the vehicle is a motor cycle. (b) for organized racing and speed testing. (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle. (d) without side-car being attached where the vehicle is a motor cycle. (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 license during the period of disqualification. (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. (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." 12. From the above abstract, what may be noticed is that the Insurance Company upon being given a notice by the Tribunal can take the defence on its liability to the claim made against it, mainly for breach of the terms and conditions of the policy. 13. A three Judges Bench of the Apex Court in the case of National Insurance Company Ltd. vs. Nicolletta Rohtagi and Others, (2002) 7 SCC 456 held that unless the insurer had obtained permission from the Tribunal to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made under Section 170 of the MV Act, the grounds of appeal by the Insurance Company will only be limited to those provided under Section 149 (2) of the MV Act. 14. The relevant paragraph of the said Judgment i.e. Nicolletta Rohtagi and Others (Supra) at paragraph Nos. 15, 16 and 17 may be reproduced below for ready perusal:- "15. It is relevant to note that Parliament, while enacting sub-section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not find place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If Parliament had intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of conditions of insurance policy in sub-section (2) of Section 149. If Parliament had intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of conditions of insurance policy in sub-section (2) of Section 149. If we permit the insurer to take any other defence other than those specified in sub-section (2) of Section 149, it would mean we are adding more defences to the insurer in the statute which is neither found in the Act nor was intended to be included. 16. For the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in sub-section (2) of Section 149 of the 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds. 17. Before proceeding further, it may be noticed that while "the Motor Vehicles Act, 1939" was in force, Section 110-C (2-A) was inserted therein in the year 1970 which corresponds to Section 170 of the 1988 Act. The said provision provides that in course of an inquiry of a claim if the Tribunal is satisfied that there is a collusion between the claimant and the insured or the insured fails to contest the claim, the Tribunal for reasons to be recorded in writing, may 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." 15. The decision of the three Judges Bench of the Apex Court as abstracted above was again relied upon by the same Court in Rekha Jain (Supra). The Apex Court by referring to the case of Nicolletta Rohtagi (Supra) held that the findings recorded by the Tribunal on the important aspect i.e. the percentage of the disability on the basis of legal evidence cannot be challenged by the Insurance Company without obtaining the permission under Section 170 (b) of the MV Act. The Apex Court by referring to the case of Nicolletta Rohtagi (Supra) held that the findings recorded by the Tribunal on the important aspect i.e. the percentage of the disability on the basis of legal evidence cannot be challenged by the Insurance Company without obtaining the permission under Section 170 (b) of the MV Act. Consequently, the appeal of the claimant was allowed and the Insurance Company was directed to deposit the revised compensation. 16. In the present case as well, the admitted position is that the appellant Insurance Company did not obtain permission under Section 170 of the MV Act. Therefore, in view of the decision of the Apex Court in Nicolletta Rohtagi (Supra) and Rekha Jain (Supra), there is no scope for considering the instant appeal on the grounds projected by the appellant. The law laid down as aforesaid Supra was also applied by this Court in the case of New India Assurance Company Limited vs. Smt. Sangzuali, 2001 (2) TAC 136 (Gau) as well. 17. In the result, the appeal fails and the same is hereby dismissed. 18. Registry shall send back the LCR to the Tribunal.