Karnataka High Court
United India Insurance Com.Ltd vs Sangappa on 26 November, 2009
Author: N.Ananda
Bench: N.Ananda
BO (By Sri. Harshavardhan R. Malipatil, Advocate for Caveator/R- 1, Sri. Basavaraj R. Math, Advocate for R-2) uo This MFA is filed U/S 173 (1) of MV Act-against -the. Judgment and Award dated 20.1.09 passed ins. MVvc - No.58/07 on the file of the Civil Judge, (Sr, Dix.J, Member, ~ MACT, Muddebihal, partly allowing. the claim' "petition. for compensation for Rs. 5,46,900 with future. interest at the rate of 6% p.a. from the date of petition... a IN MFA 30524/2009: BETWEEN: Sangappa S/o Bhimappa ~ @ Hanamappa Kuri, ann Aged 24 years, Occ: Agriculturist. And coolie, R/o Madari, CF Taluk: Muddebihal, Dist: Bijapur. ~~ ee oe . Appellant (By Sri. Harshavardhan R. Malipatil, Advocate) AND: 1. Shrishail S/o Malakaiappa Kumbar, Age: Major, Occ: Business, R/o Mudari, Ta: Muddebihal, Dist: Bijapur. 2. The United. India Insurance Co. Ltd.. '. Bijapur-Division Office, -Represerited by its Divisional Manager, . Dr.-B.S. Patil, Sangam Building - S.S. Front Road, Bijapur. ws, ... Respondents (Ey Sri. Basavaraj R. Math, Advocate for R-1 and Sri. Manavendra Reddy, Advocate for R-2) This MFA is filed U/S 173 (1) of MV Act against the Judgment and Award dated 20.1.09 passed in. MVC No.58/07 on the file of the Civil Judge, (Sr. Dn.),. Member, MACT, Muddebihal, partly allowing the claim: petition for _ compensation and seeking enhancement of conipensation- 7 These Miscellaneous First Appeals: coming 'on. for admission this day, the court delivered the following: JUDGMENT. These appeals are listed for admission. The lower Court records are received. With the consent of learned counsel for the parties, they are taken up for final disposal. © > 2, M.P.A. 2038/2009 is filed by the Insurance Company. to sel aside the impugned award inter alia contending that auto rickshaw bearing No. KA 28/ 9811 ~ was not involved in the accident. The claimant. in connivance with first respondent has involved the 7 autorickshaw KA28/9811 in the accident, that too by | "filing a complaint under Section 200 of Cr.P.C. after six months from the date of accident. The tribunal has erroneously rejected application filed under Section 170 Ld rm. of the Motor Vehicle Act. The medical records produced by claimants are concocted. 3. M.F.A. No.30524/2008 is filed by claimant for. enhancement of compensation: inter, alia "contending that claimant has become. a paraplegic "after. the 2 accident. Therefore assessment of disability should have been 100%. The tribunal has: not awarded adequate compensation towards loss of tuture earning. 4. ] have heard 'Sr "Manavendra Reddy, learned couns: al appearing for the Insurance Company and Sri. Harshavardhan, R "Malipatil, learned counsel for the claimant. 5..Phe, learned counsel appearing for claimant has raised quest ion of maintainability of appeal filed by the 7 Insurance Company on the ground that tribunal has | + rejected application filed under Section 170 of the a Mother Vehicle Act. Therefore, the Insurance Company cannot file an appeal to challenge the quantum of compensation or finding of the tribunal __ regarding involvement of vehicle. 6. The learned counsel for claimant has relied on the judgment of Supreme Court reported in. 20 2 SAK (Civil) 860 (in the case of National Insurance Co. Ltd. Chandigarh Vs. Nicoltetta Rohiagi and Ors.); 2008 (11) SCALE36 (in the case of Sainundra Devi and Ors. Vs. Narendra Kaur and Ors.) Coe 7. 'The leamed counsel for Insurance Company would submit. that order of rejection of application under Section 170 (1) of the Motor Vehicle Act is a non- a speaking order. In fact first respondent had not filed ms written statement to oppose the claim petition as observed by the tribunal. Therefore, the Insurance ae Company can maintain an appeal to question the firiding of the tribunal regarding involvement of vehicle : ; va ~~-and quantum of compensation. fi 8. The learned counsel appearing for Insurance Company would submit that the tribunal - "ignoring contents of written statement filed by. tems that there was no dispute oie pa regarding involvement of autorickshaw bearing. No. -KA28/9811 and that the tribunat. was required to decide issues relating to negligence and quantum of compensation. 9, In order to appreciate the 'above submissions and the principies of law laid down in the aforestated decisions, it is necessary for me to consider the order sheet maintained by the tribunal and order of the a tribunal rejecting application made under Section 170 i of the Motor Vehicle Act. ~. 10. It is seen from the order sheet maintained by " : the tribunal that on 29.09.2007 the learned counsel 'appearing for the Insurance Company (second "respondent before the tribunal) had made an ys eal tone application under Section 170 of Motor Vehicle Act anid also filed written statement. This application Was numbered as [.A. No.l. On 29, 09. 2007 "ease was, adjourned to 16.10.2007, On 16, 16, 2007 objection to | LA. No.I was not filed, the refore, . case was adjourned to. 23.11.2007 for hearing on' 7 LA, Nod and fr framing issues. ll. On 1 aS: I ], 2007. first' respon: dent (the owner of the vehicle involve d in the Lecideny) prayed for time to file ene ; state i _ Therétore. Case was adjourned to 2 5.01. 2008 10 fame Issues. On 25.01.2008 the learned Tolye of the "iibunal heard arguments on J.A, oS New: and, posted "the case to 04.04.2008. On -- Ob. O4. 2008. this learned Judge of the Tribunal was on leave. Theictore the matter was taken by the learned "in-chareé Judge. The learned in-charge J udge recorded "presence -- of partes and adjourned the case to rcdend 11.04.2008. On 11.04. 2008 the learned Judge made the following order: "Both side counsel are present. Heard. LAL iS rejected as respondent No. r has fied Ju is written statement. who » is) oumer of the" offending vehicle. Hene e, Re Spt. No.2 iS not : permitted to take defence available to Respt.No. 1." The learned J udge ramed issues, read over the same and ac tio: tne d ihe Case tov filing list of witnesses, documents.an nd rece rd i u & evidence, 12. As per the erties: sheet dated ] 1.04.2008 the respondent "Nov Towner of the vehicle) had filed written a statemer lent-on 04, 4. 2008. However, from the perusal of "the written s statement filed) by respondent No.1, we do hot find any' endorsemens of the court to show that it owas filed and received by court and taken on record on 04.04.2008. This apart the Insurance Company had . made an application under Section 170 of the Motor rr. Vehicle Act on the ground that first respondent -- owner- cum-driver of the vehicle involved in the accident is not contesting the claim petition. The Insurance Company : has contended that there : was collision "between | Claimants and first respondent: Fhis application was filed on 29.10.2007 by whieh, ime first respondent had not filed written statement, ever as per entries made in the order sheet maintained by. the tribunal, 13- ~The law Is. rurly well-settled that order made by the tribunal aicder'Section | 70 of Motor vehicle Act should pea reasoned:.order [vide: AIR 1998 SUPREME COURT 2968). ~ '4. hia the case on hand on consideration of the order' made by the tribunal on the application filed tuider Section 170 of the Motor Vehicle Act. I find there 'is. uncertainty regarding the date on which the order was made. It is obvious from the order extracted supra, the order is cryptic and a non-speaking order. The Lob. mm. recordings of the order sheet that respondent No.1} has filed his written statement is factually Incorrect. The of the Motor Vehicle Act. if a persory against whonz. the claim is made had con tested the claim. Even if it is assuined. that first respondent had filed written statement as observed-in the order of the Tribunal, that would. ot Satisly the requirement of Section 17) (fb OF the Motor Vehicle Act to reject the application filed by the hisura we Company. 15) In view. of the discussion made Supra. | hold that order. OF rejection-oF application filed under Section 170 of Motor Vehicle Act by the tribunal suffers from inherent deters and improper reflection of facts. The 'order does dot reflect the correct facts: the order does » Hot indicate the application of mind. The rejection of ; {he application under Section 170 of the Motor Vehicles Act on the ground that first respondent had filed his Ag rw. 1] written statement is erroneous both on facts and in-law. The tribunal could reject the application only atter being satisfied that the first respondent against whom claim 7 : was made has contested the claim. ~The mere filing of written statement, assuming it was filed, eannot be at ground to hold that first respondent was contesting the claim. 16. The learned counsel. appearing for claimant would submit that "Insurance Company had not challenged the order dated 11.04.2008. Therefore, the Insurance Company cannot maintain this appeal to question "the findings: of the tribunal regarding /_ invoivement | ofthe vehicle and quantum -- of "compensation. ~ The Insurance Company could file appeal only on the grounds available to it under Section 149 (2} of the Motor Vehicle Act. 17 In support of these submissions, learned ', counsel for claimant has relied on the judgments of the yw. Supreme Court reported in 2002 SAR (Civil) 866-and 2008 (11) SCALE36. 860 it is held that- "unless the conditions precedent specified ine Section 170 of 1988 Act is satisfied, fan insurance compar has no right. of appeal to challenge the award on. merits. However, ina situation ebvhere ihere. is collusion between the claimants and the insured or ihe insured does not contest the claim and, . further, the tribunal does" net implead. th re insurance company to contest the claim ir such cases it is open to an insurer to seek permission of the tribunal te contest the claim on the ground available to the insured or toa person against whom a _ clair has been made. If permission is os granted and the insurer is allowed to contest the claim on merits, in that case it is open to the 'insurer to file an appeal against an award on merits, f aggrieved. In any case where an "application for permission is erroneously rejected the insurer can challenge only that bonewle, sw. 13 part of the order while filing appeal ori. grounds specified in sub-section (2) of Section : . 149 of 1988 Act. But such application Jor i permission has to be bona fide and filed at the stage when the insured is required tO. lead 7 7 his evidence. So fai as obtaining i compensation by fraud -by the claimant és concerned, it is no longer res integra that fraud vitiates the ent ire "proceeding and in such cases it is open to an insurer to apply to the ves for rectif ication of award." 19. In the decision re sported in 2008 (11) SCALE36, the Su 'preme Court has held that- "onbinrtyat oe to just exceptions, the a insurance company would have no right to - "question the quantum of compensation in a absence of any leave having been granted in i its favour in terms of Section 170 of the Act." 20. In the discussion made supra, I have held that a the tribunal had rejected the application under Section . 170 of Motor Vehicle Act by assuming that first we, cd onl, 14 respondent had _ filed written statement which is factually incorrect. The perusal of the order sheet which bears the order made on the application under _ Section 170 of Motor Vehicle Act would give. lise to a reasonable doubt as to the date c on. which the order -- made. The order is cryptic, its not a reasoned order. The only reason contained in 'the order is that first respondent the owner of the vehicle involved in accident has filed writer s statement: therefare second respondent is not permitted ed "te ts iake defence available to the first respordent, These findings an are factually incorrect and erroneous in law. 'The « order made by the tribunal on the application under r Section 170 of Motor Vehicle Act "apart from being erroneous both on facts and in law is shr rouded: with mystery. Therefore, the case on hand falls. in the category of just exceptions where the a 'insurance company could file an appeal on the other . grounds other than the grounds available under Section 149 (2) of the Act notwithstanding the fact that the rv. 15 application filed under Section 170 of the Act was rejected by the tribunal. the insurance company that the - tndainee ate has denied that auto rickshaw bearing No. KA 28,/ 9811 ? which belonged to first respondent was itrvolved in the accident. The insurance . 'company has specifically contended that: after a petiod of s six c menths the brother of claimant. seme ely. ore | Parashuram had filed complaint under Section -- 200 op Crp P.Ce "before the J.M.F.C., Muddebihal cane! thea police submitted a final report against 7 'frst. ' respondent involving -- the ou autor vickshaw bear ring No. KA28/9811 in the accident in = question. The tribunal without noticing the specific defence raised by the insurance company has framed issue No.l on the assumption that involvement of auto _ ~ Hekshav bearing No. KA28/9811 which belonged to prebrrord. 16 first respondent, was not denied by the insurance company. premise that it was required to consider whether the drive of auto rickshaw (first "resporident) was guiity of rash and negligent driving as.contended by clairnant. 23. The tribunal after making fa brief reference to the documents filed under Section 173(5) Cr.P.C. has held that. the : accident took - place due to rash and negligence driving of "autorickshraw bearing No. KA 28/981 I by first resporident : The tribunal while answering issue No.2 has "ancepted medical evidence to hold that claimant has "been | rendered paraplegic after the accident and awarded compensation of Rs.5,46,900/- under different on heads The tribunal has held that first respondent ~ - owner of the vehicle and second respondent ~ insurance 7 company are jointly and severally liable to satisfy the award. The tribunal has not even referred ° fo the Contents of policy to record a fnding Of joint-and several liability. 24. In view of these erroneous findings of he tribunal which had resulted in arrivi we at 'oniclusions not based on facts. and alec fature of the 'tribunal to consider the defence raed hy the: insurance company on the ground, that there as 'contest by the first respondent. the: impugned award Cannot be sustained. The matter "FeQuare - "pecciisideration by the tribunal. Therefore, } pars the following: ORDER
The appeal filed by the Insurance Company is aecepred in part. The impugned award is set aside. The matter is remanded to the tribunal for re-consideration
- in} the light of the observations made herein and in accordance with law. The tribunal shal re-consider the application filed under Section 170°) of the> Motor Vehicles Act. Parties are at liberty to adduce lurtier evidence. The tribunal shall decide the cage. on inetits ° Within a period of six months from, ihe date-of receipt of :
copy of this order. In View of the reasoned order ihe claimant's appeal does hot, survive tor consideration. however claimant ean, substantiate the same before the tribunal.
Office is directed, fo send back the records along With a copy-of this order. Sd/-
JUDGE ~ swk