Himachal Pradesh High Court
National Insurance Co. Ltd. vs Rattani Devi And Ors. on 3 May, 2004
Equivalent citations: 2006ACJ717
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. The award dated 5.1.2002 of the Motor Accidents Claims Tribunal, Bilaspur (for short 'the Tribunal') whereby compensation amounting to Rs. 2,30,000 has been awarded in favour of Rattani Devi, claimant-respondent No. 1, for the death of her son Gopal Dass, is under challenge in the present appeal preferred by appellant insurance company, the insurer of the offending truck No. HP 24-1785. Respondent No. 2 was the driver while respondent No. 3 is the owner of the said truck.
2. In a motor vehicle accident which is alleged to have taken place on 25.3.2000 at about 10.30 p.m. at Ghagus, Gopal Dass, son of the claimant-respondent No. 1 had died. While seeking compensation for the death of her son, it was pleaded that truck bearing No. HP 24-1785 belonging to respondent No. 3 was involved in the accident and that the accident had taken place due to rash and negligent driving on the part of the driver, respondent No. 2.
3. The respondent Nos. 2 and 3 while resisting the petition pleaded that their truck bearing No. HP 24-1785 was not involved in the accident.
4. The appellant, insurer of the truck, denied its liability under the insurance policy on the ground that the driver of the truck did not possess a valid and effective driving licence and that the truck in question did not have a valid registration, route permit and fitness certificate and as such, was being driven in contravention of the terms of the insurance policy. Insofar as the accident is concerned, the same was simply denied for want of knowledge.
5. On the basis of the evidence coming on record, the learned Tribunal came to the conclusion that truck No. HP 24-1785 was involved in the accident and that the accident in which the deceased Gopal Dass had died, was a result of rash and negligent driving on the part of the driver, respondent No. 2. The learned Tribunal, therefore, awarded compensation of Rs. 2,30,000 in favour of the claimant-respondent No. 1 as aforesaid.
6. The only question raised in present case is-Whether truck No. HP 24-1785 was involved in the accident?
7. It may be stated that the findings of the learned Tribunal holding that truck No. HP 24-1785 was involved in the accident have become final as against the driver and owner of the said truck, respondent Nos. 2 and 3, on their failure to assail the same by way of an appeal.
8. Once a finding has become final against the insured, the same would be deemed to have become final against the appellant as well being the insurer and duty-bound to indemnify the insured to the extent of the liability incurred by him under the policy of insurance. Therefore, it is not open to the insurer to assail the findings of the learned Tribunal holding truck No. HP 24-1785 to be involved in the accident, once such findings have been accepted by the insured.
9. Secondly, it may be noticed that it was never the defence of the appellant before the learned Tribunal that truck No. HP 24-1785 was not involved in accident. It had simply denied the accident for want of knowledge. Denial of a fact for want of knowledge is not the denial of the fact.
10. In the absence of a specific plea having been raised by the appellant before the learned Tribunal either in the written statement or otherwise, the appellant cannot be permitted to raise a new plea that truck No. HP 24-1785 was not involved in the accident,
11. Thirdly, the defence that truck No. HP 24-1785 was not involved in the accident sought to be raised by the appellant is not available to it under section 149, Motor Vehicles Act, 1988.
12. Hon'ble Apex Court in British India General Ins. Co. Ltd. v. Captain Itbar Singh, 1958-65 ACJ 1 (SC), while dealing with the scope and ambit of the defences available to the insurer under section 96, Motor Vehicles Act, 1939 (corresponding to section 149 of the Motor Vehicles Act, 1988) has held that the defences mentioned in the section are the only defences open to the insurer, other defences being not open to him.
13. In Oriental Insurance Co. Ltd. v. Bishan Dass, 1988 ACJ 106 (HP), it has been held by this court that even if the user of a motor vehicle amounts to breach of a statutory rule, the defences available under section 96 (2) of Motor Vehicles Act, 1939 [corresponding to section 149 (2) of Motor Vehicles Act, 1988] are not attracted.
14. In New India Assurance Co. Ltd. v. Wholesales Cooperative Stores, 1988 (1) TAG 77, it has been held by the High Court of Orissa that the cause of death of the deceased is not open to be assailed by the insurer, who is to be confined to the grounds/defences available under section 96 of the Motor Vehicles Act, 1939.
15. In general terms an insurer may resist the claim against him in two ways: (1) that the insurer was not liable although the insured may be liable and (2) that the insurer is not liable because the insured is not liable.
16. Under the first head, the insurer is entitled to escape the liability by saying that the policy of insurance was void as it was obtained by the insured on a false representation or non-disclosure of a material fact, or that the policy was cancelled before the accident, or that there has been a breach of a specified condition of the policy, being one of the conditions enumerated in section 149 of Motor Vehicles Act, 1988. The insurer is debarred from raising any other ground of defence to avoid its liability, if the insured is found to have incurred the liability.
17. Under the second head, the insurer can plead that there was no negligence on the part of the insured or to show that the insured incurred no liability. The insurer is entitled to raise all such pleas in defence as the insured can take to show that the insured had not incurred the liability provided either the insurer had reserved such a right in the policy to contest the claim petition in the name of the insured or with the leave of the court under section 170, Motor Vehicles Act, 1988.
18. Section 149 of the Motor Vehicles Act has nothing to do with the cases falling under the second head. All that this section does is that it debars the insurer from taking up any defence, other than those enumerated therein to show that it is not liable under the policy even though the insured had incurred a liability.
19. It is pertinent to note that apart from the statute, an insurer has no right to be made a party to the action by the injured against the insured. Sub-section (2) of section 149 gives a right to the insurer to be made a party to the proceedings and to defend it. The right, therefore, to be made a party has been created in favour of the insurer by the statute and its content would necessarily depend on the provisions of the statute.
20. The language of sub-section (2) of section 149 is plain and admits of no doubt or confusion. It is provided that "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:". Thereafter the grounds are enumerated.
21. It would, thus, follow that an insurer is entitled to defend the action on any of the grounds enumerated and on no others. When the grounds of defence have been specified, they cannot be added to. To do that would be adding the words to the statute.
22. Further, sub-section (7) of section 149 also indicates clearly as to how subsection (2) should be read. Sub-section (7) provides that no insurer to whom the notice of the action has been given shall be entitled to avoid its liability under subsection (1) otherwise than in the manner provided for in sub-section (2). Therefore, sub-section (7) specifically contemplates that an insurer cannot take any defence(s) not mentioned in sub-section (2).
(Emphasis supplied)
23. In the present case neither there is any reservation of right in the policy in favour of the insurer to contest the claim petition in the name of the insured nor there is any leave of the court under section 170, Motor Vehicles Act, 1988. Therefore, the defence sought to be raised by appellant in the present appeal is not available to it under section 149 (2) of the Act.
24. For the foregoing reasons, the present petition fails and the same is accordingly dismissed leaving the parties to bear their own costs.
25. Let the amount of compensation deposited by the appellant under the award and lying invested in fixed deposits along with interest accrued due thereon be paid to claimant-respondent No. 1 by remitting the same to her bank account, the particulars of which are mentioned in C.M.P. No. 1147 of 2003.