Gujarat High Court
The vs Bhartiben on 15 July, 2008
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/497/1989 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 497 of 1989
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?NO
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
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THE
NEW INDIA ASSURANCE CO.LTD & 2 - Appellant(s)
Versus
BHARTIBEN
WD/O ISHAWARBHAI LAXMANBHAI & 5 - Defendant(s)
=========================================================
Appearance
:
MR
SANDIP C SHAH for
Appellant(s) : 1,(MR MR GEHANI) for Appellant(s) : 2 - 3.
MR CJ
VIN for Defendant(s) : 1 -
6.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 15/07/2008
ORAL
JUDGMENT
Heard learned Advocate Mr. Sandeep C. Shah for the appellants. Learned Advocate Mr. CJ Vin is appearing for the respondents claimants. This appeal is filed by the appellants, New India Assurance Co. Ltd. and driver Iqbal Mahemudkha as well as the owner Mahabubkhan Manirkhan Pathan under section 173 of the Motor Vehicles Act, 1988 challenging the award made by the MACT (Auxi.) at Surat in MACP Case No. 435 of 1984 and 538 of 1984 dated 27th September, 1988. In MACP No. 435 of 1984, the claims tribunal has a warded compensation of Rs.2,28,000.00 together with interest thereon at the rate of 12 per cent per annum with proportionate costs. In MACP NO. 538 of 1984, the Claims Tribunal has awarded compensation of Rs.27,000.00 together with interest at the rate of 9 per cent per annum with proportionate costs.
Learned Advocate Mr. CJ Vin appearing for the respondents has raised contention that the joint appeal filed by the insurance company, driver and owner is not maintainable. He also raised contention that the insurance company has not obtained permission under section 170 of the Motor Vehicles Act, 1988 and, therefore, insurance company is not entitled to challenge the quantum and negligence. He submitted that the driver and owner had filed appearance but did not appeared to resist the claim of the claimants. Opponent NO.3 insurance company had filed written statement at Exh. 40 and resisted the claim of the claimants, and, therefore, he raised contention that when the driver and owner have not resisted the claim, then, they are not entitled to challenge the award passed by the claims tribunal and, therefore, as per his submission, this appeal is not maintainable in law and is required to be dismissed.
Learned Advocate Mr. Sandeep Shah appearing for the appellants has not disputed the factual aspects as submitted by the learned advocate Mr.Vin before this court. Learned Advocate Mr. Shah has submitted that the insurance company has not obtained permission under section 170 of the Motor Vehicles Act, 1988. Therefore, insurance company is not entitled to challenge the award so far as it is relating to negligence and quantum. Owner and driver both have filed mere appearance but not filed written statement and not contested the claim petition and, therefore, learned advocate Mr. Shah is not disputing these factual aspects.
Learned Advocate Mr. Vin for the claimants relied upon the decision of the apex court in case of CHINNAMA GEORGE AND OTHERS VERSUS NK RAJU AND ANOTHER reported in (2000) 4 SCC 130 = AIR 2000 SC 1565 wherein it was held by the apex court that the insurance company's joint appeal with the owner or driver of motor vehicle is also incompetent unless one of the grounds under section 149(2) of the Motor Vehicles Act, 1988 is available to it. Relevant observations made by the apex court in para 8, 9 and 10 of the said judgment are reproduced as under:
?S8. If none of the conditions as contained in sub section (2) of section 149 exist for the insurer to avoid the policy of insurance, he is legally bound to satisfy the award. He cannot be a person aggrieved by the award. In that case, the insurer will be barred from filing any appeal against the award of the Claims Tribunal.
9.
The question that arises for consideration is : can the insurer join the owner or the driver in filing the appeal against the award of the Claims Tribunal as driver or owner would be the person aggrieved as held by this Court in Narendra Kumar v. Yarenissa, (1998) 9 SCC 202? This Court has held that appeal would be maintainable by the driver or the owner and not by the insurer and, thus, a joint appeal when filed could be maintainable by the driver or the owner. This is how the Court held:-
"For the reasons stated above, we are of the opinion that even in the case of a joint appeal by 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."
10. There is no dispute with the proposition so laid by this Court. But the insurer cannot maintain a joint appal along with the owner or the driver if defence on any ground under Section 149(2) is not available to it. In that situation joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of the appellants. The appellate Court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken in the pleadings and was pressed before the Tribunal. On the appellate Court being so satisfied the appeal may be entertained for examination of the correctness of otherwise of the judgment of the tribunal on the question arising from/relating to such defence taken by the insurer. If the appellate Court is not satisfied that any such question was raised by the insurer in the pleadings and/or was pressed before the Tribunal the appeal filed by the insurer has to be dismissed as not maintainable. The Court should take care to ascertain this position on proper consideration so that the statutory bar against the insurer in a proceeding of claim of compensation is not rendered irrelevant by the subterfuge of the insurance company joining the insured as a co-appellant in the appeal filed by it. This position is clear on a harmonious reading of the statutory provisions in Sections 147, 149 and 173 of the Act. Any other intrpretation will defeat the provision of sub-section (2) of Section 149 of the act and throw the legal representatives of the deceased or the injured in the accident to unnecessary prolonged litigation at the instance of the insurer.??
Said decision of the apex court is considered by the Division Bench of this Court in First Appeal No. 6503 of 1998 with Cross Objection No. 312 of 2001 in First Appeal No. 6503 of 1998 on 16.4.2008, in the matter of Oriental Insurance Co. Ltd. Versus Alpaben WD/O. Jigishaben N. Dalal. Para 4.1 and 4.2 of the said judgment are reproduced as under:
?S4.1 It is clear from the memo of appeal that no plea of defence under Section 149 of the Motor Vehicles Act, 1988 (?Sthe Act?? for short) is taken or is available to the Insurer ? appellant No.1 of the truck and, therefore, in light of the decision in the case of Chinnama George and others V/s N.K.Raju and another 2000 ACJ 777, such joint appeal would not be competent and, therefore, not maintainable. It also appears from the record that before the Tribunal, the Driver and Owner of the truck did not contest the application. They did not file any written statement challenging the claim petition. The claim was opposed only by opponent No.1 (appellant No.1) Insurer of the truck.
4.2. It also appears that the Insurer did not prefer any application under Section 170 of the Act claiming wider defence. In this set of circumstances and in light of the decision in the case of United India Insurance Co. Ltd. Vs. Hetalbhai C.Bagadia and others, reported in 2000 ACJ 1356, the appeal by the Insurer would not be competent either. ?S Third decision referred to and relied upon by him is ORIENTAL INSURANCE CO. LTD. V. MANJULABEN JAYANTIBHAI PATEL & ORS. reported in 2003 (3) GLR page 2018 wherein it has been held by the Division Bench of this Court as under in para 10 and 11:
?S10. Having carefully heard the learned counsel for the parties and having carefully gone through the decision in National Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors., 2002 (7) SCC 456, we find considerable substance in the submissions made on behalf of the original claimants that the present appeals filed by the Insurance Company for challenging the award by assailing the finding of negligence and the finding on the quantum of compensation are not maintainable because the larger Bench of the Apex Court has already held in National Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors.
(supra) as under:-
"(u)nless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made."... ....
"The view taken in United India Insurance Co. Ltd. vs. Bhushan Sachdeva & others (supra) that a right to contest would also include the right to file an appeal is contrary to well established law that creation of a right to appeal is an Act which requires legislative authority and no Court or Tribunal can confer such right, it being one of limitation or extension of jurisdiction."
"(u)nless the conditions precedent specified in Section 170 of the Act are satisfied, an Insurance Company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim, it is open to an insured to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is 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 the award on merits, if aggrieved. In any case where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of the Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of the award."
(emphasis supplied)
11. The aforesaid principles laid down by the Apex Court after analyzing the scheme of the Motor Vehicles Act, 1939 as well as the scheme of the Motor Vehicles Act, 1988 and several decisions make it abundantly clear beyond any pale of controversy that an Insurance Company cannot file an appeal against the award of the Tribunal for challenging the findings of negligence and on quantum of compensation, unless the Insurance Company had made an application before the Tribunal under Section 170 of the Motor Vehicles Act, 1988 and a specific order was made by the Tribunal in writing permitting the insurer to avail the grounds available to an insured or any other person against whom the claim has been made. The decision of the larger Bench in National Insurance Co. Ltd. vs. Nicolletta Rohtagi (supra) has completely concluded the controversy and it is not open to this Court to circumvent the said binding decision by culling out any implied permission of the Tribunal in favour of the Insurance Company as is sought to be contended by the learned counsel for the appellant-Insurance Company.??
In case of United India Insurance Co. Ltd. And another versus Shilpa Jigishbhai alias Jignesh Vyas and others reported in 2005 ACJ 1645, the Division Bench of this Court considered this aspect and observed as under in para 4 of the judgment:
?S4. In National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others, AIR 2002 SC 3350, the apex court has overruled the decision in United India Assurance Co.Ltd. versus Bhushan Sachdev reported in 2002 ACJ page 333, referred to by Mr. Nanavati. [See New India Assurance Co.Ltd. v. Smt. Tara Sundari Phauzdar and others, AIR 2004 Calcutta 1 Full Bench and National Ins. Co. Ltd. v. Challa Bharathamma and others (2004) 8 SCC 517; Chinnamma George and others v. N.K. Raju and another (2000 ACJ 777). Undisputedly, the Insurance Company has not sought permission under section 170 of the MV Act, 1988 to contest the claim on all available grounds, therefore, such challenge without permission under section 170 of the MV Act, 1988 is not permissible. In the present case, the appeal is filed by the Insurance Company challenging quantum which is not available defence under these provisions, therefore, it cannot be raised by the Insurance Company. Owner did not file written statement nor appeared at any stage before the Claims Tribunal to contest the claim petition. Therefore, owner also cannot challenge the award on merits as no contention was raised by the owner before the Claims Tribunal. For these reasons, the appeal filed by the Insurance Co. is not maintainable.[See Oriental Insurance CO. Ltd. versus Manjulaben Jayantibhai Patel and others{2004 ACJ 172 (Gujarat)??
In view of the above law as discussed by this Court, the facts are also undisputed between the parties. The appellant Insurance Company has not obtained permission under section 170 of the Motor Vehicles Act, 1988 to contest the claim of the respondents on quantum and negligence as available to the insurance company. The owner had appeared but thereafter, not filed any written statement and not contested the claim petition of the claimant. Company is not having permission under section 170 of the Motor Vehicles Act, 1988 to contest the claim of the respondents on quantum and negligence. Therefore, the insurance company is not entitled to challenge the award on negligence and quantum as discussed in the aforesaid decisions. Since the owner has not resisted the claim petition of the claimant before the claims Tribunal,the joint appeal is also not maintainable as decided by this Court in case of Shilpa Jigishbhai alias Jignesh Vyas and others reported in 2005 ACJ 1645 and, therefore, according to my opinion, present appeal is not maintainable.
Apart from that, brief facts of the present case are to the effect that the Ishwarbhai Laxmanbhai died in the accident. Accident took place on 2nd March, 1984 at about 10.15 p.m. On State Highway No. 66 near Char Rasta within the local limits of village Lajpor. Deceased was the disciple of Laxmi Narayan. He was having great number of devotees. He used to spend his time for adoration, preaching and worship to God Laxminarayan. Out of the devotional feelings, the followers were giving him presents, gifts and money. He was earning Rs.1500.00 p.m. There were agriculture lands and out of the agricultural products, deceased was earning Rs.30000.00 to Rs.35000.00 per year. The deceased had also purchased a plot by spending Rs.72000.00 at Surat. On 2.3.84, the applicant no.1 to 3 and the deceased Ishwarbhai had gone to Barlai for worship and adoration in the Laxminarayan Temple. After completing the pooja etc., they were returning by Fiat car bearing No. GJK-7020. The fiat car belonged to Hariprasad Vithalbhai Patel, the claimant in MACP No. 538 of 1984. Ishwarbhai Laxmanbhai was driving the said car. When the car reached near Char Rasta of the village, truck bearing No. GTC 5980 was found approaching from the opposite side driven rashly and negligently and at the excessive speed. The right head light was off. Suddenly, the truck sweped from the wrong side and came in front of the fiat car. It dashed against the front portion of the fiat car as a result of which, the car was badly damaged, Ishwarbhai Laxmanbhai who was driving the car sustained fatal injuries on head, face, hand and on the leg and died on the spot while the claimants no.1 to 3 received simple and grievous injuries. Therefore, claim for compensation of Rs.300000.00 was preferred by the claimants against the opponents.
The Claims Tribunal framed issues at Exh. 16. After considering the evidence of Bharatiben Balubhai and copy of panchanama Exh. 31 drawn by the police during the investigation into the offence being material. Another copy of the same panchanama is produced at Exh.
23. Bharatiben Balubhai was in car at the time of accident on the back seat and was an eye witness of the accident and her evidence was read with panchanama which makes it clear that the road in question was from north to sough in length. Ultimately, the claims tribunal has come to the conclusion that the opponent no.1 driver was driving the truck rashly and negligently and because of his rash and negligent driving, accident had taken place wherein Ishwarbhai Laxmanbhai lost his life. Deceased being on the correct side and that too reasonably away from the middle line towards north, he cannot be blamed for contributory negligence. Deceased was careful in driving the car but because of the rash and negligent driving of opponent no.1 driver,accident took place. Thereafter, the claims tribunal has examined the matter on quantum and considering the income of the dec eased Rs.1000.00 to Rs.1500.00 by way of gifts,presents to him made out of devotional feeling by the followers, total income has been assessed at Rs.1000.00 and agricultural income has been assessed at Rs.6000.00 per year and thereafter, total monthly figure comes to Rs.1500.00 and from that figure, Rs.300.00 were deducted for personal requirement and after deducting the same, remaining amount comes to Rs.1200.00 per month, annual figure of which come to Rs.14,400.00 per year. As per the school leaving certificate of the deceased on record, date of birth of the deceased was 2.6.51 and, therefore, on the date of accident, age of the deceased was about 32 years 9 months and, therefore, tribunal applied multiplier of 15,s o the total amount of Rs.2,16,000.00 was awarded as loss to the family and Rs.12000.00 were awarded as conventional damage and total thereof comes to Rs.2,28,000.00. In the second MACP NO. 538 of 1984, which was preferred by Hariprasad V. Patel, his car was badly damaged and it was of no use because reparation thereof was virtually impossible being prohibitive. Reparation was got estimated from the garage owner at Surat. He estimated cost of reparation at Rs.35000.00 which evidence was not challenged in the cross examination by the insurance company who was defending and contesting the claim of the claimants. Ultimately, the claims tribunal has awarded Rs.27000.00 for damage to the car. Thereafter, the tribunal has accordingly awarded the amounts in favour of the claimants and also directed for disbursement of the amounts in favour of the claimants by impugned award.
Looking to the facts and evidence on record, according to my opinion, the tribunal has rightly awarded the amounts of compensation in favour of the claimants. It was a clear case of rash and negligent driving of truck by opponent no.1 which was rightly decided by the claims tribunal on the basis of panchanama and evidence of Bharatiben Balubhai who was an eye witness of the accident and, therefore, on merits also, the claims tribunal has rightly awarded compensation to the claimants.
In view of the above law as discussed by this court and undisputed facts as discussed by this court herienabove, the claims tribunal has rightly decided the matter. Appellant insurance company has not obtained permission under section 170 of the MV Act,1988 to contest the claim of the claimants on quantum and negligence and the owner and driver had appeared but thereafter, not filed any written statement to contest the claim petition. Therefore, for want of such permission under sec. 170 of the MV Act, 1988, the insurance company is not entitled to challenge the award on quantum and negligence Since the owner has not resisted the claim petition before the claims tribunal, joint appeal by the insurance company, driver and owner is not maintainable as decided by this Court in case of United India Insurance Co. Ltd. And another versus Shilpa Jigishbhai alias Jignesh Vyas and others reported in 2005 ACJ 1645.
Therefore, according to my opinion, this appeal is not maintainable.
I have examined the matter on both the counts. According to my opinion, such joint appeal is not maintainable and the company is not entitled to challenge the quantum and negligence in absence of the permission and looking to the merits of the matter, the claims tribunal has rightly awarded compensation in favour of the claimants and rightly held the opponent driver negligent in driving the truck and in doing so, no error has been committed by the claims tribunal requiring interference of this court in this appeal. Therefore, on both the counts, appeal fails and accordingly, there is no substance in this appeal and same is, therefore, dismissed with costs.
Claims Tribunal is directed to disburse the amounts lying with it with accrued interest to the respondents claimants without any further delay and immediately after encashing the FDRs, if any.
(H.K. Rathod,J.) Vyas Top