Calcutta High Court
United India Insurance Co. Ltd. vs Smt. Namita Das & Ors. on 17 August, 1999
Equivalent citations: 2001ACJ303, (1999)3CALLT135(HC), AIR 2000 CALCUTTA 145, (1999) 3 CALLT 135, (2000) 2 TAC 380, (2000) CAL WN 514, (2001) 2 ACC 164, (2001) 1 ACJ 303
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal at the instance of the Insurance Company is directed against a Judgment award dated 31.7.1996 passed by B. N. Biswas, additional District Judge, (Judge, Motor Accident Claims Tribunal) Purulia in M. A. C. No. 1 of 1994. The question which has arisen for consideration is as to whether this appeal is maintainable.
2. Mr. Das the learned counsel appearing on behalf of the appellant, inter alia, submitted that as the Judgment under appeal is without any reason and furthermore as in no case of compensation to the extent of Rs. 2,00,000/- had been awarded for death of a 15 year old girl, the impugned Judgment should be set aside. The learned counsel in this connection has referred to a series of decisions. There may be an arguable question as regard the quantum of compensation but in this appeal the only question which arises for consideration is whether such question can be gone into by this Court.
3. In terms of the provisions of the Motor Vehicles Act, the defence of an insurance Company is limited. For answering the aforementioned question the history of the relevant legislation, therefore, may be shortly noticed. In case of death or bodily injury arising out of an accident the amount of compensation could be claimed in a Civil Court. However, thereafter, several legislation came into being including Motor Vehicles Act, 1939 which was amended in the year 1976 pursuant whereto, all such claims became triable by a tribunal known as Motor Vehicles Accident Claim Tribunal. The Motor Vehicles Act, keeping in view the fact that the decretal amount could not be easily recovered from the owners of the vehicles, made insurance of each Motor Vehicle Imperative so as to make the insurance company identified the insurer to the extent of the loss suffered by it. Such a provision exists In section 146 of the Motor Vehicles Act. 1988. section 149 imposes a duty upon the insurer to satisfy judgments and awards against persons incured in respect of third party interest. It is not necessary to implead the insurance company as a party in such a proceeding but it is done either in terms of section 149(2) of the Act. It is not that the insurance companies cannot be impleaded as a party with a view to contest the claim at all. It may only it terms of section 170 of the Motor vehicles Act if the claim tribunal is satisfied that :
(a) there is collusion between the person making the claims and the person against whom the claim is made; or
(b) the person against whom the claim is made has failed to contest the claim.
4. In such an event, the Insurance Company can raise all defences including those which are available to the owners.
5. An application, therefore, has to be filed to the Court for impleadlng the Insurer and an appropriate order thereupon may be passed for reasons to be recorded in writing. This is in contradistinction to the liability of the insurer as contained in sub-section (2) of section 149, which read thus:
"Section 149 : Duty of insurers to satisfy Judgments and awards against persons insured in respect of third party risks:-
(1).....
(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 ground, viz :
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, viz:
(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 organised 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) whlthout 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 licenced, 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 non-disclosure of a material fact or by a representation of fact which was false in some material particular.
6. No application in terms of section 170 of the 1988 Act had been filed in this case nor the insurance company was impleaded as a party.
This aspect of the matter has been considered by the apex Court in Shankarayya and Anr. v. United India Insurance Co. Ltd. & Anr. wherein it was held :
"It clearly shows that the Insurance Company when impleaded as a party by the Court can be permitted to contest the proceeding on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the Insurance Company has to obtain order in writing from the Tribunal and which should claimants themselves had joined respondent No.l Insurance Company in the Claim Petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the Insurance. That was not an order of the Court itself permitting the Insurance Company which was Impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in section 170. Consequently, it must be held that on the facts of the present case, respondent No.l-Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal."
7. In view of the aforementioned decision there cannot be any doubt whatsoever that in respect of the merit of the matter the insurance company cannot be permitted to maintain an appeal apart from the grounds enumerated in sub-section (2) of section 149. some the High Court have also taken view. Reference in this connection may be made to National Insurance Co. Ltd v. Tulsi Deal and Qrs. reported in 1988 ACJ (Rajasthan High Court). Nahar Singh and Anrs. v, Manohar Kumar & Ors. reported in 1993 ACJ 269 ( Jammu and Kashmir High Court). United India Insurance Co. Ltd. & Ors. v. Shatk Saibaqtualla & Ors. reported in 1992 ACJ 858 [ Andhra Pradesh High Court), National Insurance Co. Ltd. v. Roy George and Ors. reported in 1993 ACJ 343 (Kerala High Court) and the decision of the apex Court In National Insurance Co. Ltd. v. Jugal Klshore and Ors. reported In 1983 ACJ 270 and M.K. Kunhimohammed v. P.A. Admedkutty and Ors. reported in 1987 ACJ 872.
8. Even on a question of fact that High Court can exercise its jurisdiction only when the findings are perverse.
9. The learned Tribunal appears to have determined the quantum of compensation relying upon the decision of the Delhi High Court in 1996(1) ACJ 256 which is based upon the decision of Smt. Kaushalya Devi & Ors. v. Bhola Ram & Ors. reported in 1995(8) SCALE 62 and Haji Zainullah Khan (Dead) by L.R. v. Nagar Mahapalika. Allahabad .
10. It is true that normally reason should be assigned but an order which is even on unspeaking one cannot be set aside at the instance of the party who has no locus standi to prefer the appeal.
11. Mr. Das, however, placed strong reliance upon Shankarayya and Anr. v. United India Insurance Co. Ltd. & Anr. reported in 1998 (1) Supreme 579 but in that case no objection was taken as regard the right of the insurance company in joining issues on merit before the Tribunal and the claimant was satisfied with the award of the Tribunal. However, ultimately in that case also the apex Court held keeping In view the fact that no order was passed under section 170 of the Motor Vehicles Act. 1988, insurance company was not entitled to file an appeal on merits of claim which was awarded by the Tribunal. The apex Court observed:-
"It was not disputed before us that respondent No. 1, Insurance Company on account of the contract of Insurance is liable to comply with the entire award amount of compensation. That precisely is the reason why the insured has not though it fit to challenge the compensation in these proceedings. Under these circumstances, respondent No. 1, Insurance Company will have to satisfy the entire award amount as directed by the Tribunal. If any part of the said amount remains still unpaid, the said balance amount shall be deposited by respondent No.l in the Tribunal within eight weeks from the receipt of the copy of this order as its end. Office shall send a copy of this order to first respondent-Insurance Company."
12. Furthemore. it is not the rule of law that the parents of the victim of tender age, who does not earn, can not get a heavy compensation. In K. Murugesh & Ors. v. M. Palappa & Ors. . the apex Court observed;
"Taking all the facts and circumstances into consideration, we direct respondent 3, New India Assurance Co. Ltd. to pay an amount of Rs. 1,00,000/- along with interest at the rate of 6% per annum from the date of filing of the claim petition. If the amount directed by the High Court has already been paid, then the balance amount shall be paid within four months from today."
13. It may be noticed that in that case the learned Tribunal awarded a sum of Rs. 30,800/- which was raised by the High Court to a further sum of Rs. 5,000/-.
For the reasons aforementioned we are of the opinion that no case has been made out to interfere with the impugned award in this appeal which is dismissed accordingly. In facts and circumstances of this case there will be no order as to costs.
M.H.S. Ansari, J.
14. I agree.
15. Appeal dismissed