Karnataka High Court
National Insurance Co. Ltd. And Anr. vs Renuka And Ors. on 7 October, 2002
Equivalent citations: 2003ACJ1318, 2003 AIR - KANT. H. C. R. 165, 2003 AIHC 428, (2003) 2 ACJ 1318, (2003) 2 TAC 216, (2003) 2 INDLD 600, (2003) 3 ACC 732
Author: R. Gururajan
Bench: R. Gururajan
JUDGMENT R. Gururajan, J.
1. These appeals are filed both by the insured as well as the insurer challenging the judgment and award passed by M.A.C.T., Gulbarga, in M.V.C. Nos. 415, 444, 450, 452, 522, 527, 677 and 111 of 1997.
2. This court admitted the appeals and ordered interim stay. Matter was posted from time to time. On 5.9.2002, the matter was heard. The learned Counsel for the respondents invites my attention to the latest judgment of the Apex Court with regard to maintainability of the appeal filed by the insured as well as the insurer. In these circumstances, Counsel for the insurance company was asked as to whether he would like to delete any one of the appellants.
3. On 17.9.2002 matter was listed for further hearing. On that date, learned Counsel filed a memo stating therein that joint appeals are maintainable and occasion to delete the insurer would not arise and the appeals are to be heard and disposed of on merits. He also relied on several judgments.
4. Learned Counsel for the respondents strongly relies on a recent judgment of the Supreme Court in H.S. Ahammed Hussain v. Irfan Ahammed .
5. In the light of the objections with regard to maintainability of a joint appeal at the instance of the insured and the insurer, the matter is heard.
6. Section 173 of Motor Vehicles Act provides for an appeal under Sub-section (1) of the Act. The said section reads as under:
173. Appeals.-(1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court.
A careful reading of the said section would show that any person aggrieved may within 90 days prefer an appeal.
7. The question as to whether joint appeal by insured and insurer is maintainable or not is debated and courts have given their ruling on this issue.
8. The Supreme Court in the case of Narendra Kumar v. Yarenissa , noticed the various provisions of the Motor Vehicles Act of 1939. Thereafter in para 7, the Supreme Court ruled as under:
For the reasons stated above, we are of the opinion that even in the case of a joint appeal by the insurer and owner of offending vehicle if an award has been made against the tortfeasors as well as the insurer even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause-title is suitably amended by deleting the name of the insurer.
The Supreme Court also ruled that merely because a joint appeal is preferred and it is found that one of the appellants, namely, the insurer was not competent to prefer an appeal, it cannot be said that the appeal by the tortfeasor, the owner of the vehicle cannot be proceeded with after dismissing or rejecting the appeal of the insurer.
9. The next case is Chinnama George v. N.K. Raju . The Supreme Court in this case considered the scope of Sections 149(2), 146 and 173 of the Motor Vehicles Act. The Apex Court in this case after noticing Narendra Kumar v. Yarenissa , ruled in para 6 as under:
The insurer by associating the owner or the driver in the appeal when the owner or the driver is not an aggrieved person cannot be allowed to mock at the law which prohibits the insurer from filing any appeal except on the limited grounds on which it could defend the claim petition. We cannot put our stamp of approval as to the validity of the appeal by the insurer merely by associating the insured.
10. The Supreme Court again in United India Insurance Co. Ltd. v. Bhushan Sachdeva , has considered the scope of Sections 173, 168, 170 and 149(2) of the Motor Vehicles Act. It has considered both Narendra Kumar and Chinnama George, and thereafter ruled in para 10 as under:
(10) Can it be said that the insurance company should not have any grievance at all in a case where the award appears to be unjust to the company? We must bear in mind that the nationalised insurance companies in India are holding public money. What they have to deal with is public fund. They are accountable to the public for every pie of it. If it is held that no insurance company should feel aggrieved even if the award is seemingly unjust and that such awarded amount should go out of the public fund it is public interest which suffers. If the insurance company has reason to believe that the award was obtained fraudulently which fact was not known to the insured, should we allow public money to be given to satisfy such an award? In such cases the insurance company must feel aggrieved. Any interpretation denying such aggrieved insurance companies the opportunity to seek the legal remedy of appeal should not be adopted unless there is a statutory compulsion. There is nothing in Section 173 or in other relevant provisions of the Act which debars the insurance company to resort to the remedy of appeal when it knows that the award is unjust.
The Supreme Court also ruled that if the insured fails to prefer an appeal that also would amount to failure to contest that case.
11. Recently, the Supreme Court in the case of H.S. Ahammed Hussain v. Irfan Ahammed , noticed all these three judgments and thereafter distinguished Chinnama George's case 2002 ACJ 777 (SC) and ruled in para 4 as under:
In such eventuality, the course which a court should adopt is as noticed in the case of Narendra Kumar (supra) to delete the name of the insurer from the cause-title and proceed with appeal of the insured and decide the same on merit.
12. The latest judgment after noticing all the three judgments referred to above has chosen to lay down the law to the effect that the joint appeal by the insured and the insurer is not liable to be dismissed and the proper course is to delete the name of the insurer from the cause-title and proceed with the case of the insured and decide the case on merits. The appeal is not to be dismissed without following the above course in terms of the judgment of the Supreme Court in the case on hand. In the light of the latest judgment of the Supreme Court and in the light of the objection of the claimant, I gave an option to the learned Counsel appearing for both the insured and the insurer in the case on hand. Instead of availing the course in terms of the judgment of the Supreme Court, the learned Counsel appearing for the appellants filed a memo and in the memo the appellants insisted on maintainability of joint appeals and the appellants stated that there is no occasion to delete the insurer. In my view, it is not possible for this court, particularly in the light of the clear pronouncement of the Supreme Court in Ahammed Hussain's case , after consideration of all the previous cases, to permit the appellants to maintain a joint appeal. Joint appeal is, therefore, held to be not maintainable in the light of the latest law by the highest court of the country.
13. Learned Counsel, however, refers to me a Division Bench judgment of this court in the case of Shanta Rathod v. Mahantesh , to contend that joint appeal is maintainable. The Division Bench held that the appeals by the owner and the insurer, on the facts and circumstances are maintainable. That was a judgment rendered by this court after noticing Chinnama George's case . The Division Bench has ruled that where owner has contested the case he can file an appeal either by himself or by adding the insurer as a co-appellant. The Division Bench did not have the benefit of the latest judgment of the Apex Court in the case of H.S. Ahammed Hussain v. Irfan Ahammed .
14. In these circumstances, I am of the view that the course suggested by the Apex Court after noticing the earlier judgments has to be adopted. In the case on hand, judicial discipline require me to follow the latest law of the Supreme Court.
15. In the result, this joint appeal is rejected particularly, in the light of the memo dated 11.9.2002 and in the light of the Supreme Court judgment. Parties are to bear their costs.