JUDGMENT
A.P. Subba, J.
1.Since both these appeals involve common question of law about maintainability of the appeals filed by the insurance company under Section 173 of Motor Vehicles Act, 1988 without complying with the provisions of Section 170 of the same Act they are heard together and are disposed of by this common judgment.
2. The M.A.C. Appeal No. 2 of 2004 filed by United India Insurance Co. Ltd. is directed against the order dated 6.2.2004 passed by the Motor Accidents Claims Tribunal, East and North, Gangtok in the M.A.C.T. Case No. 26 of 2003 granting a sum of Rs. 2,21,800 as compensation in favour of the claimant who is respondent No. 1 herein and the M.A.C. Appeal No. 3 of 2004 filed by National Insurance Co. Ltd. is directed against the order dated 27.2.2004 passed by the same Motor Accidents Claims Tribunal, East and North, Gangtok in M.A.C.T. Case No. 23 of 2003 granting a sum of Rs. 1,77,000 as compensation in favour of the claimant who is respondent No. 1, herein.
3. The brief facts of the M.A.C. Appeal No. 2 of 2004 are that the deceased late Subhas Rai was employed by respondent No. 2 as driver of his vehicle bearing No. SK 04-3933. On 6.5.2002, the deceased who was on duty in the said vehicle sustained severe injuries on his head and spine in an accident that occurred at a place called Sawney Busty, East Sikkim when the vehicle was on its way from Rhenock to Gangtok and was being driven by its former driver one Dawa Bhutia. The deceased was immediately hospitalised for medical treatment following the accident. However, despite the medical treatment given to the deceased in hospitals at Kalimpong and Siliguri in West Bengal he succumbed to his injuries after 3 months. On his demise, the respondent No. 1 who is the father of the deceased filed claim of Rs. 7,48,800 as compensation before the M.A.C.T., East and North, Gangtok against the present appellant who is the insurer and one Tenz-ing Chopel Bhutia, son of late Thendup Dorjee Bhutia who is the owner of vehicle involved in the accident. The present appellant who was the respondent No. 1 before the Tribunal filed written objection and denied any liability contending that there was neither any statutory liability nor contractual obligation cast upon them to pay any compensation to the respondent No. 1 or to indemnify the owner of the vehicle for payment of any compensation. It was also contended that the claim petition suffered from non-disclosure of cause of action and also for non-joinder and mis-joinder of necessary parties. The owner of the vehicle who was respondent No. 2 therein contested the claim without filing any written objection. He contended that as he had insured his vehicle with United India Insurance Co. Ltd. the appellant herein, the claim for compensation was not maintainable against him. Learned Tribunal on hearing the parties and on perusal of the materials on record, awarded total compensation of Rs. 2,21,800 to the claimant vide the impugned award dated 6.2.2004 directing the insurance company, the appellant herein, to make the payments.
4. The brief facts of the M.A.C. Appeal No. 3 of 2004 are that the deceased Ukash Sharma, aged about 81/2 years, son of the claimant-respondent No. 1 herein was ran over and injured by a speeding truck at a place near M.P. Check Post at Bardang, East Sikkim on the National Highway at about 3 p.m. on 2.4.2002. The respondent No. 1 took his injured son (the deceased) to different hospitals for medical treatment incurring heavy expenses but all in vain. Despite all the medical treatment being given to him, the deceased succumbed to his injuries in course of his treatment in the Medical College at Patna, Bihar on the 11th day of his treatment. On his demise, respondent No. 1 the father of the deceased filed a claim of Rs. 7,04,915 as compensation before the M.A.C.T., East and North, Gangtok against the insurance company, the present appellant and one S.T. Lepcha, son of late D.D. Lepcha, the owner of the vehicle involved in the accident. Both the respondents filed written objections. The appellant who was the respondent No. 1 denied any liability contending that there was neither any statutory liability nor any contractual obligation on their part to pay the compensation to the respondent No. 1 or to indemnify the owner of the vehicle for payment of any compensation. It was also stated that the claim petition suffered from non-disclosure of cause of action and also for non-joinder and mis-joinder of necessary parties. The respondent No. 2, the owner of the vehicle contended that as he had insured his vehicle with National Insurance Co. Ltd., the appellant herein, the claim for compensation was not maintainable against him. Learned Tribunal on hearing the parties and on perusal of the materials on record awarded total compensation of Rs. 1,77,000 to the claimant vide the impugned award. Being aggrieved by the above said impugned awards, the appellants filed the present appeals before this court which have been registered as M.A.C. Appeal Nos. 2 and 3 of 2004.
5. In M.A.C. Appeal No. 2 of 2004, it has been contended before this court that the award passed by learned Tribunal was contrary to law being against the weight of evidence on record, that since the deceased died after 3 months of the date of accident the cause of death of the deceased was not the vehicle accident as alleged. It was also contended that the claimant had failed to establish rash and negligent driving on the part of the driver at the time of the accident and that the learned Tribunal had erroneously followed the Second Schedule to the Motor Vehicles Act, 1988 in awarding the compensation.
6. In M.A.C. Appeal No. 3 of 2004, it has been similarly contended that the award passed by the learned Tribunal was contrary to law being against the weight of evidence on record, that the cause of death of the deceased was not the motor accident as alleged as the deceased died after 7 months of the date of accident. It was also contended that the claimant had failed to establish rash and negligent driving on the part of the driver at the time of the accident and that learned Tribunal had erroneously followed the Second Schedule of Motor Vehicles Act, 1988 in awarding the compensation. It was further contended that the item of the award on transportation charges amounting to Rs. 3,000, extra nourishment amounting to Rs. 5,000 and damage to clothing and articles amounting to Rs. 4,000 were not covered by the Second Schedule to the Motor Vehicles Act and, therefore, the impugned award was bad to that extent.
7. Mr. A.K. Upadhyaya, learned counsel for appellants and Mr. N. Rai assisted by Ms. Jyoti Kharga for the respondent No. 1 were heard. Tenzing Chopel Bhutia, respondent No. 2 in M.A.C. Appeal No. 2 of 2004 and Mr. S.T. Lepcha, respondent No. 2 in M.A.C. Appeal No. 3 of 2004 who are the owners of the vehicle involved in the accident remained absent despite service and the matter was heard in their absence.
8. At the very outset of the hearing of both the appeals, Mr. N. Rai, the learned counsel for the respondent No. 1 made a preliminary submission questioning the maintainability of these appeals. It was his submission that the present appellant had not moved the Tribunal under Section 170 of the Motor Vehicles Act and no specific order was made by the Tribunal in writing permitting the insurer to avail grounds of appeal which are available to an insured or any person and as such, it was not permissible for the present appellants who are the insurers to file the present appeals questioning the quantum of compensation as well as the finding on merit. The submission advanced by Mr. Upadhyaya in reply is that it was open to the appellants who are the insurers to come in appeals before this court as the insurers were parties in the proceedings before the Tribunal. It was also his submission that it was equally open to the insurers to raise any of the grounds as available to the insured and as such, the appeals are maintainable.
9. It is clear from the above rival contentions advanced by the learned counsel for the parties that the short common question of law that arises in both the appeals is whether the present appeals filed by the insurance companies without obtaining the permission of the Tribunal under Section 170 of Motor Vehicles Act, 1988 to contest the proceedings on merits are maintainable.
10. Admittedly, no specific order was made under Section 170 of Motor Vehicles Act by the Tribunal permitting the insurer to contest the proceedings on merits. It transpires from the record that the insurers were impleaded as parties in the proceedings before the Tribunal by the claimants themselves and that is how the insurance companies came to be the parties in the proceedings before the Tribunal.
11. Mr. N. Rai, learned counsel for the respondent No. 1 in support of his contention that such appeals filed by the insurance companies without complying with the requirements of Section 170 of Motor Vehicles Act, 1988 were not maintainable relied on the decision of the Hon’ble Supreme Court in Shankarayya v. United India Insurance Co. Ltd., . In this decision the Hon’ble Supreme Court after referring to the provisions of Section 170 of Motor Vehicles Act held as follows:
“(4) It clearly shows that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the insurance company has to obtain order in writing front the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined respondent No. 1, insurance company in the claim petition but that was done with a view to thrust the statutory liability on the insurance company on account of the contract of the insurance. That was not an order of the court itself permitting the insurance company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, respondent No. 1, insurance company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal.”
(Emphasis added)
The above Division Bench decision of the Hon’ble Apex Court came to be approved by a larger Bench constituted in National Insurance Co. Ltd. v. Nicolletta Rohtagi, . The Supreme Court after referring to the above Shankarayya case (supra) and several other decisions held in para 26 of the judgment as follows:
“(26) For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, im-plead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless 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. Thus where conditions precedent embodied in Section 170 are satisfied and the award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Section 170 of the 1988 Act, the same would go contrary to the scheme and object of the Act.”
(Emphasis added)
In Oriental Insurance Co. Ltd. v. Manju-laben Jayantibhai Patel, , the High Court of Gujarat was faced with similar question of law. The learned court after referring to and relying upon the above decision of the Hon’ble Supreme Court came to the conclusion that an appeal filed by the insurance company without complying with the provisions of Section 170 of the Motor Vehicles Act, 1988 was not maintainable. Placing reliance on the relevant observations made and following the guidelines laid down by the court in the above decision of the Hon’ble Supreme Court, the High Court observed at para 11 of the judgment as follows:
“(11) The aforesaid principles laid down by the Apex Court after analysing 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. v. Nicol-letta 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.”
(Emphasis added)
12. Bearing in mind the position of law as enunciated in the above cases, we may now take up for consideration the submission made by Mr. Upadhyaya with regard to the maintainability of the appeals in question. It is the submission of Mr. Upadhyaya that even if there is any bar for the insurance company to come in appeal on account of its failure to obtain permission under Section 170 of the Motor Vehicles Act from the learned Tribunal it should be open to the insurance company to come in appeal particularly in a situation where the award of the Tribunal is unfair and unjust. Even though Mr. Upadhyaya did not make reference to or rely on any decision in support of his submission, it is noticed that such a question came up before the Hon’ble Apex Court for consideration in United India Insurance Co. Ltd. v. Bhushan Sachdeva,. It was held by the Supreme Court in that case that so long as the insured has not challenged the award passed against him and so long as the liability to pay compensation would only fall on the insurance company it is inequitable to deny a remedy of appeal to the insurance company. The ratio of the decision as may be apparent from the judgment was that the nationalised insurance companies of India are holding public money and they are accountable to the public money for every pie of it. Therefore, 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 with, 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, the insurance company must feel aggrieved. Any interpretation denying such aggrieved insurance company the opportunity to seek the legal remedy should not be adopted unless there is a statutory compulsion. It was accordingly observed in para 10 of the judgment that “there is nothing in Section 173 or in the 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”.
13. Viewed in the light of the above interpretation placed on Section 173, it might be noted that the submission made by Mr. Upadhyaya does not seem to he devoid of substance but at the same time we must hasten to add that the above interpretation of the law no longer holds good. The approach adopted earlier in such cases has undergone a change as may be noticed hereafter. A larger Bench of the Supreme Court constituted in Nicolletta Rohtagi’s case, , did not find favour with the ratio of the above decision and the same was overruled. It is noticeable that the emphasis has now changed from public money to the contractual liability and the welfare of the insured. As already quoted above, it has been held in para 25 that “motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle accidents are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149 (2) of the Act or where the condition precedent specified in Section 170 is satisfied”. It was accordingly observed in para 29 of the judgment as follows:
“(29) For the aforesaid reasons, as well as that the learned” Judges in United India Insurance Co. Ltd., , have failed to notice the limited grounds available to an insurer under Section 149 (2) of the Act, we are of the view that the decision in United India Insurance Co. Ltd. (supra) does not lay down the correct view of law.”
In this context, it is worthwhile also to reproduce para 27 of the same judgment as follows:
“(27) This matter may be examined from another angle. The right of appeal is not an inherent right or common law right, but it is a statutory right. If the law provides that an appeal can be filed on limited grounds, the grounds of challenge cannot be enlarged on the premises that the insured or the persons against whom a claim has been made has not filed any appeal. Section 149 (2) of 1988 Act limits the insurer’s appeal on those enumerated grounds and the appeal being a product of the statute, it is not open to an insurer to take any other plea other than those provided in Section 149 (2) of the 1988 Act. The view taken in United India Insurance Co. Ltd. v. Bhushan Sachdeva, , 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. Further, the view taken in United India Insurance Co. Ltd. v. Bhushan Sachdeva (supra) that since the insurance companies are nationalised and are dealing with public money/fund and to deny them the right of appeal when there is a collusion between the claimants and the insured would mean draining out or abuse of public fund is contrary to the object and intention of Parliament behind enacting Chapter XI of 1988 Act. The main object of enacting Chapter XI of 1988 Act was to protect the interest of the victims of motor vehicle accidents and it is for that reason the insurance of all motor vehicles has been made statutorily compulsory.Compulsory insurance of motor vehicle was not to promote the business interest of insurer engaged in the business of insurance. Provisions embodied either in 1939 or 1988 Act have been purposely enacted to protect the interest of travelling public or those using road from the risk attendant upon the user of motor vehicles on the roads.If law would have provided for compensation to dependants of victims of motor vehicle accident, that would not have been sufficient unless there is a guarantee that compensation awarded to an injured or dependant of the victims of motor accident shall be recoverable from person held liable for the consequences of the accident. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC), it was observed thus:
‘In other words, the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the dependants of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has, therefore, to be interpreted in the twilight of the aforesaid perspective’.”
(Emphasis added)
The above being the present position of law it follows that the submission made by Mr. Upadhyaya that an insurer can come in appeal and challenge finding on merit even in absence of permission in terms of Section 170 cannot be accepted. Accordingly, it must be held that the present appeals are not maintainable and the same are liable to be dismissed.
14. Even though the above is sufficient to dispose of these appeals, it is desirable to deal with some further points urged by Mr. Upadhyaya before coming to the final conclusion.
The first of the further submissions made by Mr. A.K. Upadhyaya is to the effect that in National Insurance Co. Ltd. v. Kamala Rai, M.A.C. Appeal No. 1 of 2004; decided by this court on 21.3.2005, insurance company which was the appellant was allowed to challenge the finding on merit even.when there was no compliance with the provision of Section 170 and there was no written permission obtained by the insurance company and as such, the grounds raised in the present appeals being similar to the ones raised in the aforesaid appeal the present appellant cannot be precluded from raising the same points in these appeals as well.
No doubt, a perusal of the judgments/ orders of the related case shows that the appellant in the said appeal was allowed to challenge the finding on merit but at the same time it transpires that the question relating to the necessity of obtaining the written permission of the Tribunal under Section 170 of the Motor Vehicles Act to contest the matter on the grounds available to the insured was not raised and argued nor the decisions, namely, Shankarayya’s case, and the later decision of the larger Bench in Nicolletta Rohtagi’s case, , were cited as authority on the issue. As a consequence there was no occasion for the court to consider the issue. In view of this, the decision rendered in the above M.A.C. Appeal No. 1 of 2004 must be treated as a decision given in per incuriam.
The next submission made by Mr. Upadhyaya relates to the compensation awarded under the heads of transportation, extra nourishment and damages of clothing and articles in the impugned award in M.A.C. Appeal No. 3 of 2004. The point urged by Mr. Upadhyaya in this regard is that the learned Tribunal had blindly followed the Second Schedule to the Motor Vehicles Act, 1988 in awarding the total amount of compensation. It is contended that even if the Tribunal is right in following the Second Schedule the items of compensation awarded under the above heads, namely, transportation, extra nourishment and damages of clothing and articles fall outside the scope of the Second Schedule and are thus not permissible.
The impugned award shows that the learned Tribunal has awarded Rs. 3,000 towards transportation charges, Rs. 5,000 towards extra nourishment and Rs. 4,000 towards damages of clothing and articles etc. A perusal of the Second Schedule would show that these heads do not find place in the Schedule.
It was further pointed out by Mr. A.K. Upadhyaya that in the other impugned award passed by the same Tribunal which is also under challenge in the other M.A.C. Appeal No. 2 of 2004 no compensation has been awarded on these heads. This, according to Mr. A.K. Upadhyaya, has led to uncertainty and lack of uniformity in the awards that have been passed by the same Claims Tribunal. Therefore, it is the further submission of Mr. Upadhyaya that the impugned award in M.A.C. Appeal No. 3 of 2004 needs to be modified so far as it relates to the extra compensation not falling within any of the heads of Second Schedule are concerned.
Mr. Upadhyaya further contended that even though the insurance company cannot challenge the impugned award on merit, the errors pointed out above are apparent on the face of the record and as such the same may be set right in exercise of inherent power of the court so as to ensure certainty and uniformity in the matter of compensation to be awarded in M.A.C.T. cases. The submission of Mr. N. Rai, the learned counsel for respondent No. 1 in this regard is that the heads under which these items of compensation have been given find place in Sikkim Motor Vehicles Rules framed by State Government under the Motor Vehicles Act and as such there is no irregularity whatsoever in granting compensation on these heads as well.
There is no doubt that certainty and uniformity of awards that may be passed by the Claims Tribunal is what has been emphasised in all the guidelines laid down by the Apex Court and other courts from time to time. Reference in this regard may be made to the decision of the Hon’ble Supreme Court in U.P. State Road Trans. Corpn. v. Trilok Chandra, ; United India Insurance Co. Ltd. v. Patricia Jean Mahajan, ; and also the decision of Karnataka High Court in Gulam Khader v. United India Insurance Co. Ltd., . What emerges from the above decisions is that courts must adhere to the well-settled principles and guidelines so as to maintain uniformity and certainty of the awards made all over the country.
It may be noted that question of maintaining certainty and uniformity in the awards came up for consideration in Gopi Krishna Kakrania v. Mahendra Pradhan, 2005 ACJ 1864 (Sikkim). Relying on the guidelines laid by the Hon’ble Supreme Court in the above referred decisions this court emphasised the need and importance of adhering to the Second Schedule of the Motor Vehicles Act and the guidelines laid down by the Hon’ble Supreme Court so that uniformity and certainty of awards to be passed by the Tribunals can be ensured.
In view of above, I am of the opinion that an interference to the limited extent of setting aside that part of the award which relates to the extra head of compensation in the impugned award in M.A.C. Appeal No. 3 of 2004 is called for with a view to maintain uniformity and certainty in the matter of grant of compensation. Accordingly, the amount of award made by the Tribunal on the above heads is set aside and the compensation payable is determined at Rs. 1,65,000 thereby modifying the impugned award in M.A.C. Appeal No. 3 of 2004. On deduction of the interim relief award of Rs. 50,000 already received by claimant from this amount the balance amount comes to Rs. 1,15,000.
Finally, Mr. Upadhyaya drew the attention of the court to the decision of the Supreme Court in Pramod Kumar Agrawal v. Mushtari Begum, and submitted that in this case the Hon’ble Supreme Court had directed the insurer to pay the quantum of compensation fixed by the Tribunal to the respondent-claimant and to recover the same from the owner for which the insurer shall not be required to file the suit and the insurer may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. He further submitted that a similar direction, if given in the present case will serve the interest of justice in the facts and circumstances of the case.
15. A perusal of the above judgment shows that the said direction was given following the earlier decision of Hon’ble Apex Court rendered in National Insurance Co. Ltd. v. Baljit Kaur, . Para 12 of the judgment which contains the details of the direction given is as follows:
“(12) Therefore, while upholding the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur’s case, , that the insurer shall pay the quantum of compensation fixed by the Claims Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. For the purpose of recovering the same from the owner the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the vehicle, i.e., appellant No. 1 shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If the necessity arises, the executing court shall also take assistance of the concerned Regional Transport Authority. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle, i.e., appellant No. 1 shall make payment to the insurer. In case there is any default, it shall be open to executing court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured (the appellant No. 1).”
(Emphasis supplied)
It may, however, be noticed that the facts of the above two cases go to show that the questions that came up for consideration were entirely different. In Baljit Kaur’s case (supra) the question that came up for consideration was whether an insurance policy in respect of a goods vehicle wduld also cover gratuitous passengers in view of the legislative amendment in 1994 to Section 147 of the Motor Vehicles Act. The Hon’ble Supreme Court after referring to several previous decisions on the point held that the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same despite the amendment of 1994. It was accordingly held that the owner of the vehicle and not the insurer was liable and consequently the insurance company was directed to satisfy the awarded amount and recover the same from the owner of the vehicle. The question that came up for consideration in Mushtari Begum’s case, , was also whether the insurer was liable to pay compensation in respect of passenger carried in goods vehicle. It was found that the vehicle which was a goods vehicle was not insured for carrying passenger. Accordingly, it was held in the light of the ruling in the above referred Baljit Kaur’s case (supra) that it was the owner of the vehicle who was liable to make the payment of compensation and the insurance company was not liable. It was in these circumstances that the directions that the insurance company will pay the compensations to the respondents-claimants and recover the same from the owner of the vehicle and intention of Parliament behind enacting Chapter XI of the Act.
16. As it becomes clear from the above the directions in questions were given on the basis of the finding that the insurer was not liable to make payments of compensations but it was the owner of the vehicle who was so liable. It is, therefore, evident that facts of the present cases are not similar to the facts of the above two cases. In the present cases, it may be noticed that the learned Tribunal has found the insurance companies liable to pay the compensation in term of insurance policy and has directed the insurance companies to make the payment of the compensation. In view of this a direction in similar lines as prayed for by Mr. A.K. Upadgyaya would be uncalled for abd unjustified insofar as such a direction, if given in the present case, will have the effect of shifting the liability already fixed on the insurer by the learned Tribunal. Further,as already held above, appellants in the present appeals are precluded from raising any ground on merit in absence of a written permission to be obtained by the insurer in terms of sections 170 of Moter vehicles Act. Therefore, the submission of Mr. Upadhyaya the a similar direction, if given in the present cases will serve the interest of justice cannot be accepted in the present circumstances.
17. In the result, the M.A.C. Appeal No. 3 of 2004 is allowed in part and that part of the award which relates to Second Schedule are set aside as indicated above.
The M.A.C. Appeal No. 2 of 2004 is dismissed. There shall be no order as to costs.