Allahabad High Court
United India Insurance Co. Ltd. vs Veerendra Sen And 5 Others on 23 March, 2015
Bench: Krishna Murari, Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 3 F.A.F.O. No. 753 of 2015 United India Insurance Company Ltd. ------- Appellant Versus Veerendra Sen & Ors. ------- Respondents Hon'ble Krishna Murari, J.
Hon'ble Pratyush Kumar, J.
Heard Shri S.B.L. Gaur, learned counsel for the appellant and Shri Shreeprakash Singh appearing for the respondents.
This First Appeal From Order filed under Section 173 of the Motor Vehicles Act, 1988 (for short the Act), is directed against the impugned judgment and award dated 07.01.2015 passed by Motor Vehicles Accident Claims Tribunal/Additional District Judge, Court No. 15, Jhansi in MACP No. 124 of 2012 awarding a sum of Rs.5,13,272 as compensation along with 7% simple interest from the date of the application till actual payment.
Shri Shreeprakash Singh, learned counsel for the claimant-respondents has raised a preliminary objection with respect to maintainability of the appeal on the instance of the Insurance Company and submits that since no permission was taken by the appellant from the Tribunal under Section 170 of the Act, hence, the appeal is not maintainable.
In support of the contention, reliance has been placed on the decision of the Hon'ble Apex Court in the case of Josphine James Vs. United India Insurance Co. Ltd. & Anr., 2013 ACJ 2418.
The fact that the appellant-Insurance Company was a party before the Tribunal and has not made any application under Section 170 of the Act and no permission has been obtained by it, is not being disputed on behalf of the appellant.
The Hon'ble Apex Court in the case of Josphine James (supra), in paragraph 8 has observed as under.
"8. Aggrieved by the impugned judgment and award passed by the High Court in MAC Appeal no. 433/2005 and the review petition, the present appeal is filed by the appellant urging certain grounds and assailing the impugned judgment in allowing the appeal of the Insurance Company without following the law laid down by this Court in Nicolletta Rohtagi's case (supra) and instead, placing reliance upon the Bhushan Sachdeva's case (supra). Nicolletta Rohtagi's case was exhaustively discussed by a three judge bench in the case of United India Insurance Company Vs. Shila Datta, 2011 ACJ 2720 (SC). Though the Court has expressed its reservations against the correctness of the legal position in Nicolletta Rohtagi decision on various aspects, the same has been referred to higher bench and has not been overruled as yet. Hence, the ratio of Nicolletta Rohtagi's case will be still applicable in the present case. The appellant claimed that interference by the High Court with the quantum of compensation awarded by the Tribunal in favour of appellant and considerably reducing the same by modifying the judgment of the Tribunal is vitiated in law. Therefore, the impugned judgments and awards are liable to be set aside."
Again in paragraph 13 of the said judgment, the Hon'ble Apex Court has recorded that Insurance Company was a party before the Tribunal and has filed a written statement, admitting that truck was insured with it on the date of accident.
In the case in hand, the Tribunal has returned a finding while deciding issue no. 4 that the offending vehicle, the bus was insured with the Insurance Company on the date of accident.
Hon'ble Apex Court in paragraphs 17 and 18 of the case of Josphine James (supra) has further held as under.
"17. The said order was reviewed by the High Court at the instance of the appellant in view of the aforesaid decision on the question of maintainability of the appeal of the Insurance Company. The High Court, in the review petition, has further reduced the compensation to Rs. 4,20,000/- from Rs. 6,75,000/- which was earlier awarded by it. This approach is contrary to the facts and law laid down by this Court. The High Court, in reducing the quantum of compensation under the heading of loss of dependency of the appellant, was required to follow the decision rendered by three judge Bench of this Court in Nicolletta Rohtagi case (supra) and earlier decisions wherein this Court after interpreting Section 170 (b) of the M. V. Act, has rightly held that in the absence of permission obtained by the Insurance Company from the Tribunal to avail the defence of the insured, it is not permitted to contest the case on merits. The aforesaid legal principle is applicable to the fact situation in view of the three judge bench decision referred to supra though the correctness of the aforesaid decision is referred to larger bench. This important aspect of the matter has been overlooked by the High Court while passing the impugned judgment and the said approach is contrary to law laid down by this Court.
18. In view of the aforesaid reasons, the Insurance Company is not entitled to file appeal questioning the quantum of compensation awarded in favour of the appellant for the reasons stated supra. In the absence of the same, the Insurance Company had only limited defence to contest in the proceedings as provided under Section 149 (2) of the M.V. Act. Therefore, the impugned judgment passed by the High Court on 13.1.2012 reducing the compensation to 4,20,000/- under the heading of loss of dependency by deducting 50% from the monthly income of the deceased of Rs. 5,000/- and applying 14 multiplier, is factually and legally incorrect. The High Court has erroneously arrived at this amount by applying the principle of law laid down in Sarla Verma Vs. Delhi Transport Corporation, 2009 ACJ 1298 (SC) instead of applying the principle laid down in Baby Radhika Gupta's case (supra) regarding the multiplier applied to the fact situation and also contrary to the law applicable regarding the maintainability of appeal of the Insurance Company on the question of quantum of compensation in the absence of permission to be obtained by it from the Tribunal under Section 170 (b) of the M.V. Act. In view of the aforesaid reason, the High Court should not have allowed the appeal of the Insurance Company as it has got limited defence as provided under section 149(2) of the M.V. Act. Therefore, the impugned judgment and award is vitiated in law and hence, is liable to be set aside by allowing the appeal of the appellant."
In view of the aforesaid decision, it is clear that the earlier decisions of the Supreme Court in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi, 2002 ACJ 1950 (SC) and in the case of United India Insurance Co. Ltd. Vs. Shila Datta, 2011 ACJ 2720 (SC) were taken into consideration and it was held that the ratio of Nicolletta Rohtagi (supra) will be applicable, as it has only been referred to larger Bench and still holds the field.
In the absence of any permission obtained by the Insurance Company from the Tribunal under Section 170 of the Act, it cannot be permitted to contest the case on merits and it has limited defence to contest the proceedings under Section 149, as provided in the Act.
In such view of the matter and in the light of the aforesaid pronouncements of the Hon'ble Apex Court, this appeal cannot be held to be maintainable.
The appeal, accordingly, stands dismissed for the aforesaid reasons.
However, there shall be no order as to costs.
23.03.2015 VKS