JUDGMENT
Hari Nath Tilhari, J.
1. This appeal arises from the judgment and award dated 9.10.1997 delivered by the Motor Accidents Claims Tribunal, Chintamani (Civil Judge and J.M.F.C, Chintamani). The facts of the case in the nutshell are that the claimant-respondent, who filed the Claim Petition No. 369 of 1985 was a lady Medical Officer, who was proceeding on 21.2.94 at 7.30 a.m. towards the bus-stop near Raghavendra Mutt, Bangalore Road, Chintamani, to go to Kaiwara. According to the claimant’s case respondent No. 1 came driving his scooter rashly and negligently and when he was in his effort to overtake the tractor coming towards Chintamani on Bangalore-Chintamani Road, dashed against the claimant-respondent and caused her grievous injury resulting in permanent disablement. The number of the scooter has been mentioned as KA-07 E-5432. According to the claimant due to accident she sustained permanent disablement and injuries, namely, (1) genu valgum, (2) joint stiffness, (3) lateral osteoarthritis. She had suffered pain and agony. According to the claimant she was indoor patient in SNR Hospital, Kolar for about three months and thereafter she was treated as an outdoor patient. Claimant asserted that she is unable to work since after the accident and was advised to take treatment for two more years. The claimant made a claim for a sum of Rs. 6,00,000 as compensation.
2. The insurance company, i.e., respondent No. 2 before the Tribunal which is the appellant before this court, filed written statement. It had taken the plea that the driver of the scooter had no valid licence to drive the vehicle on the date of the accident. It was also stated in the written statement that the amount claimed is excessive and exorbitant and fanciful and imaginative. It prayed for dismissal of the claim petition. It may be mentioned here that respondent No. 1 before the Tribunal who was also respondent No. 2 in the appeal did not file any written statement. The Tribunal framed the following issues:
(1) Whether the petitioner proves that on 21.2.1994 at 7.30 a.m. on Bangalore Road, Chintamani Town, she sustained injuries in the motor accident?
(2) Whether the petitioner further proves the rash and negligent driving on the part of the driver of the vehicle?
(3) Whether the petitioner further proves that the petitioner is entitled to compensation, if so, from whom and what order?
It may be mentioned here that though respondent No. 2 had taken the plea that driver of the scooter had no valid licence, but did not press any issue on that point.
3. The Tribunal on the material on record held that cumulative effect of all the documents referred to in the judgment read with oral evidence of PWs 1 and 3 is to the effect that the petitioner, i.e., the claimant, namely, present respondent No. 1 before this court has sustained injuries due to rash and negligent driving of the scooter by respondent No. 1 before it. It further found on the basis of the evidence of the doctor that the claimant had suffered abrasion over the lateral aspect of the left elbow and haemarthrosis of left knee with tenderness of lateral condyle of left tibia; X-ray of left knee shows depressed fracture of the lateral condyle of left tibia. According to the medical evidence, injury No. 2 had shown that it was a permanent disablement injury and the petitioner-claimant has minimum limping from pain and having difficulty to sit for toilet, etc. On the basis of the doctor’s evidence the Tribunal held that the claimant had established that she had sustained permanent disablement due to the accident caused by negligent driving of the scooter driven by respondent No. 1. The Tribunal after consideration of the matter, awarded a sum of Rs. 1,13,290 in total as compensation. The details of which are as under:
(1) For pain and suffering ... Rs. 50,000
(2) Towards medical treatment
and conveyance allowance ... Rs. 50,000
(3) Damages towards encashment
benefit loss ... Rs. 13,290
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Total ... Rs. 1,13,290
Thus, in total, the Tribunal awarded Rs. 1,13,290 as compensation with interest at the rate of 6 per cent per annum. The insurance company has filed an appeal from the award and has contended that it was an aggrieved person.
4. Similarly Appeal No. 1597 of 1998 arises from judgment and award dated 31.1.1998 passed by the Additional Motor Accidents Claims Tribunal (Principal Civil Judge, Sr. Division, Bidar). In this MVC Case No. 394 of 1995 giving rise to Appeal No. 1597 of 1998, the claim petition had been filed by father, mother and brother of the deceased, namely, Narsing wherein the claimants have claimed the compensation to the tune of Rs. 3,00,000 with costs and interest. The claimants’ case in MVC Case No. 394 of 1995 has been that deceased Narsing, aged about 19 years, was engaged in dairy business and cattle rearing and was earning Rs. 3,000 per month. On 8.2.95 at about 5.00 p.m. the claimant was proceeding towards Ambedkar Circle on Bidar to Udgir Road holding bicycle in his hands along with 20 she-buffaloes and he was keeping himself on the kacha road and when he came near SBI Branch, Bidar, at that time the respondent No. 2 in that claim petition came driving the tractor and trolley No. MYI 4313 and 4314 at a high speed and in a rash and negligent manner and dashed against Narsing who was coming on kacha road by holding the bicycle in his hand along with she-buffaloes and as a result of this accident Narsing died on the spot. Claimants’ case has been that driver of the tractor and trolley was negligent and was driving at a high speed. As such, the accident was caused resulting in death of Narsing, son of respondent No. 1 in Appeal No. 1597 of 1998. The claimants asserted that they were depending on the income of the deceased Narsing. They asserted that owner, driver and insurer of the tractor and trolley were jointly liable to pay the compensation. As mentioned earlier, the claimants made the claim for compensation in all to the tune of Rs. 3,00,000 in MVC Case No. 394 of 1995. No doubt, owner and driver of the tractor appeared through their respective counsel and filed their written statements, the National Insurance Co. Ltd., which was respondent No. 3 also filed a separate written statement. All the respondents denied the allegations made by the claimants and alleged that the claim was without basis. The insurance company raised a plea to the effect that the driver of the tractor and trolley was not holding a valid driving licence on the date of accident. As such, there was breach on the part of the owner of the tractor and trolley and respondent No. 3 was not liable to make the payment of compensation.
5. On the basis of the pleadings of the parties, the Tribunal framed the following issues:
(1) Whether claimants prove that on 8.2.1995, at about 5.00 p.m. on Bidar to Udgir Road, in front of the State Bank of India, Branch Bidar, the respondent No. 2 Ganapathi drove the tractor and trolley bearing the registration No. MYI 4313 and 4314, at high speed and in a very rash and negligent manner and dashed against deceased Narsing s/o Satoba, who was coming by holding the bicycle in his hand, as a result of which he died on the spot?
(2) Whether respondent No. 3 proves that the owner of the tractor and trolley has violated the terms and conditions of the insurance policy, as such, it is not liable for payment of the compensation?
(3) Whether the claimants are entitled for the compensation? If so, how much, and against whom?
(4) What order?
6. The Tribunal held that the claimants have proved the case as pleaded and answered issue No. 1 in affirmative. The Tribunal answered issue No. 2 in negative and held that the insurance company failed to prove that the owner of the tractor and trolley had violated the terms and conditions of the insurance policy. As such, it had failed to prove that it was not liable to pay compensation. The Tribunal in total awarded a sum of Rs. 2,75,800 as compensation with interest at the rate of 12 per cent per annum from the date of filing of petition till its realisation payable by respondent Nos. 1 and 3 jointly and severally. It may also be mentioned here, in that case MVC No. 394 of 1995 Tribunal recorded the finding that respondent No. 2, i.e., Ganapathi, driver of tractor and trolley was holding a valid licence on the date of accident and respondent No. 3 (i.e., the present appellant) insurer is liable to indemnify the owner as the policy issued was valid on the date of accident. It held that respondent No. 3 was liable to pay entire compensation to the claimants being insurer of the vehicle belonging to respondent No. 1. As I have mentioned earlier, this Appeal No. 1597 of 1998 has been filed by the National Insurance Co. Ltd. from the award.
7. M.F.A. No. 1995 of 1998 arises from the judgment and order of the Motor Accidents Claims Tribunal, Bangalore Rural District, Bangalore in MVC No. 711 of 1992. In this case, the pillion rider who was on a scooter bearing registration No. CKL 5638 suffered grievous injuries and died in the hospital on 19.4.1992 and at that time, his age was 37 years. Claimants’ case was that on 16.4.1992 at 6.45 p.m. B.N. Aswathanarayana was coming on a scooter No. CKL 5638 as a pillion rider on Bangalore-Madras Road, near Kamasan-dra cross. At that time, the rider of the motor cycle bearing No. TDD 6542 came in a rash and negligent manner and dashed against the scooter. As such, B.N. Aswathanarayana suffered grievous injuries and died in the hospital on 19.4.92. The claimants have been the widow and two children of the deceased B.N. Aswathanarayana. Claimants claimed that cause for the death was the accident, caused due to rash and negligent driving of the motor cycle No. TDD 6542 by the rider of that motor cycle. The claimants claim Rs. 4,00,000 in total as compensation.
8. The written statement in that case was filed by the United India Insurance Co. Ltd., who is the appellant before this court as well as by the Oriental Insurance Co. Ltd., who is respondent No. 6 in the Appeal No. 1995 of 1998. Respondent Nos. 1 and 3, namely, owners of the motor cycle and scooter did not file any written statement. The respondent No. 4 Oriental Insurance Co. Ltd., namely, present respondent No. 6 did raise the plea, apart from denying the case of the claimants that the driver of the scooter did not have a valid licence on the date of the accident. Both respondent Nos. 2 and 4 denied the claim of the claimants.
9. The Tribunal after examination of the evidence led in MVC No. 711 of 1992 giving rise to Appeal No. 1995 of 1998 held that the accident was solely on account of the rash and negligent driving by the rider of the motor cycle and driver of the scooter had not contributed anything towards cause of the accident. It held that cause of accident was exclusive and sole negligence and rash driving of the motor cycle No. TDD 6542. The Tribunal in this case had awarded as compensation a total sum of Rs. 3,55,000 along with interest at the rate of 10 per cent per annum from the date of petition till the payment. The subject-matter in the appeal has been valued at Rs. 72,000 by the appellant.
10. It may be mentioned that in Appeal No. 1962 of 1998, respondents have also filed the cross-objections on 8.9.1998. Appeal No. 1962 of 1998 arises from the decision of the Motor Accidents Claims Tribunal, Haveri, Dharwad District, in MVC No. 358 of 1995. The appellant before this court is New India Assurance Co. Ltd. In MVC No. 358 of 1995, the claimant is the father of the deceased Basappa. The claimant had claimed a total sum of Rs. 1,42,500 as compensation. According to the claimant’s case, on 18.7.1989 in the evening Basappa was returning from Shig-gaon village to his village Ganjigatti and was waiting for the vehicle near petrol-bunk at Shiggaon at about 8 p.m. At that time, a lorry bearing No. CNB 6459 came from Haveri side at a high speed having been driven by its driver rashly and negligently and dashed against Basappa who was standing on the side of the road causing him severe head injuries and Basappa died as a result thereof on the spot. Claimant asserted that he came to know about the death of his son almost a month after the accident from the public talk. Claimant’s case was that his son deceased Basappa was earning a sum of Rs. 1,000 per month and the family was much dependant. Claimant further asserted that on account of untimely death of his son, he was put to lot of mental agony and loss of income.
11. Cause of accident has been alleged to be the rash and negligent driving of the aforesaid lorry by its driver. New India Assurance Co. Ltd. has been added as respondent No. 3. The Tribunal on the material on record held that the claimant has proved that the accident was caused on the date, time and place of occurrence as alleged on account of the rash and negligent driving of the truck bearing registration No. CNB 6459 by its driver and the truck in question on the date of accident, i.e., 18.7.1989 was insured with the New India Assurance Co. Ltd. It allowed the claim petition and directed the respondent No. 3 to pay the sum of Rs. 1,36,600 as total compensation with interest at 6 per cent per annum from the date of petition till realisation to the claimant, i.e., present respondent No. 2 in the memo of appeal. The New India Assurance Co. Ltd. has come up in appeal before this court from the award and has filed M.F.A. No. 1962 of 1998.
12. I have heard Mr. O. Mahesh, learned counsel for the appellants in Appeal Nos. 362 of 1998, 1597 of 1998 and 1995 of 1998 as well as Mr. S.B. Hanumantha Reddy, learned counsel for appellant in Appeal No. 1962 of 1998. On behalf of the respondents, I have heard Mrs. Susheela in Appeal No. 362 of 1998, Mr. F.V. Patil as learned counsel for respondents in Appeal No. 1962 of 1998, Mr. Chandrashekar Patil, learned counsel for respondents in Appeal No. 1597 of 1998 and Mrs. Kalpana holding brief for Mr. Kumaraswamy on behalf of respondent Nos. 1 to 3 and Mr. K. Suresh for respondent No. 6 in Appeal No. 1995 of 1998.
13. The appellants’ counsel in all these cases started their arguments on the question of cause of action as well as on the quantum of compensation awarded by the Tribunal. On behalf of the respondents objections were raised as preliminary objections to the effect that in view of provisions of Section 149, Sub-section (2) and Section 170 of the Motor Vehicles Act if they are read with Section 173, the insurance companies are not entitled to make submission beyond the scope of defences permissible and admissible to them under Section 149(2) of the Act. Leading the arguments Mrs. Susheela contended that the defences open to the owner and driver of the vehicles are not open to the insurance companies in view of the specific provision of law, namely, Section 149(2) unless and until the requisite process prescribed by Section 170 of the Act had been followed by the insurance companies. Learned counsel for the respondents in all these cases supported this contention. They further contended that the scope of appeal cannot be extended or expanded beyond the scope of defence available under Section 149(2) to the insurance companies. Section 170 not having been followed nor court having granted permission as required under Section 170 by requisite order, the defences which could be available to the owners of the vehicles, namely, available to the insured will not be available to the insurers nor could be availed by them either at the stage of trial or appeal. It was contended on behalf of the respondents in these appeals that the expression ‘the person aggrieved’ in its interpretation will take colour and its scope will be circumscribed by the right of pleas permissible to be raised in defence under Section 149(2) of the Act, namely, pleas available under Section 149 and pleas taken in appeal by the present appellants are those which are not permissible to be raised by them should be negatived definitely as the appellants could not urge those pleas. That the defences, pleas available to the insured owner of the vehicle in question or to the driver are not available to the insurer. Even for a moment it be conceded that they were impleaded as a party in these motor accident claims cases. Learned counsel for the respondents contended that merely because insurance companies have been impleaded, the act of impleadment of insurance companies would not whittle down the effect of Section 149(2) of the Act.
14. These contentions raised on behalf of the respondents have hotly been contested by Mr. O. Mahesh and Mr. Hanumantha Reddy appearing for the insurers in their respective cases. It has been contended that as the decree has been passed against the insurance company, they have to be treated as party aggrieved. Learned counsel for appellants contended that because decree has been made payable by the insurance companies and their liability is to pay and as such when they find themselves to be aggrieved as they feel that excessive amount has been awarded as compensation and compensation has been awarded without valid due criteria as prescribed, insurance companies are entitled to challenge that quantum of compensation in appeal. Learned counsel further contended that the Tribunal orally permitted them and did not object to the insurance company’s counsel cross-examining the witnesses even beyond the scope of defence and heard the arguments. So it may be treated as impliedly the court permitted them to raise those defences even, which were available to the insured and as such, if insurer is not allowed to raise those contentions, insurance company will be made to suffer a lot. Learned counsel further contended that Section 173 of the Motor Vehicles Act does not prescribe and circumscribe the right of appeal with any conditions, then any person aggrieved by the order including the insurance company is entitled to challenge the judgment on all grounds either available to the insured or insurer. Learned counsel contended that if the contentions of the respondents raising preliminary objection are accepted, it may not only amount to misinterpretation of law, but it would be an act of entering into the field of legislation. Mr. Mahesh and Mr. Hanumantha Reddy contended that when once the insurance company has been made a party from the initial stage of filing of application by the claimant, there was no question of power under Section 170 to be exercised and there is no question of defence available to the insurance company being restricted by Section 149(2). Learned counsel contended by virtue of insurance company being impleaded by claimants themselves and not being impleaded at the instance of the court, Section 149(2) will not apply. As such, learned counsel contended that when the claimants on their own initiation impleaded the appellants insurance companies and as insurers were parties to the claim petition, they had full right to defend their claim and they had full right to challenge the order on the grounds available either to the insurer or insured. Learned counsel for the parties in support of their respective contentions placed reliance on certain cases. During the course of hearing Mr. Mahesh, on behalf of the insurance company in Appeal Nos. 362, 1597 and 1995 of 1998, moved an application purported to be under Section 170 of the Act and contended that Section 170 may be applicable to such of appeals and it may be considered. He contended after going through the award, insurance company realised the mistake in the judgment. So it should be allowed. He submitted that the appellate court has got jurisdiction to pass such orders allowing the appellant to raise all the pleas.
15. As regards the merits of the case, contentions have also been raised regarding quantum of compensation awarded and other points. In case this court upholds the contentions of respondents, there is no need to discuss. As this common question having arisen in all these cases, I have clubbed all these appeals and I proceed to examine the contentions of the learned counsel for the parties.
16. It is well settled that right of appeal is a statutory right conferred under the statute. If any statute does not confer right of appeal, then even if a party is aggrieved from an order, he is not entitled to file the appeal. Other remedies, if available, he may avail, but appeal is not open. So it is to be taken note of that right of appeal is a statutory right and controlled by the provisions of the Act conferring the right of appeal. It is subject to the conditions either expressly made or subject to the conditions impliedly imposed. The right of appeal is subject to the conditions expressed or implied under the Act. Reference in this regard may be made to Northern Plastics Ltd. v. Hindustan Photo Films Manufacturing Co. Ltd. .
In this view of the matter it will be appropriate at this juncture to make reference to the relevant provisions of Motor Vehicles Act. Provision of appeal is contained in Chapter 12 of the Motor Vehicles Act. Section 173 of the Act provides for appeals from award given by the Claims Tribunal. Section 173 reads as under:
173. Appeals.–(1) Subject to the provisions of Sub-section (2), any person aggrieved by the award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount, so awarded, whichever is less, in the manner directed by the High Court.
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees.
Prima facie, right of appeal which has been given to a person aggrieved from the award, a perusal of the section reveals, is subject to law of limitation, namely, appeals can be filed within ninety days from the date of award and in view of sub-section (2) the amount in dispute to enable a person to file an appeal should not be less than Rs. 10,000. If the value of the amount, i.e., subject-matter of appeal is less than Rs. 10,000, appeal is barred and not maintainable. These are express limitations on the right of appeal. No doubt, if appeal is filed beyond 90 days, the provision is there enabling this court to entertain appeal after expiry of 90 days provided the appellant shows that he was prevented by sufficient cause from preferring the appeal in time. There is one more condition attached and that is that under proviso no appeal shall be entertained by the appellate court unless the appellant who is required to pay the amount under award deposits Rs. 25,000 or 50 per cent of the amount awarded whichever is less. This section per se reveals these express limitations and conditions on the right of appeal. There may be other limitations. For instance, in case of Section 100 of Civil Procedure Code right of appeal or to file a second appeal is circumscribed by the conditions that the appeal is only entertainable on the substantial question of law. I mean to emphasise that right of appeal being a statutory right, it is always subject to the conditions imposed expressly or impliedly under the Act. Implied conditions may be which come out from the harmonious constructions of the provisions of the Act if the provision has to be construed and they are two distinct provisions which appear conflicting. It has to be taken note of that in section like Section 173 the right of appeal is available to the person aggrieved and is further circumscribed by the condition by the expression ‘aggrieved’. To what extent he is aggrieved and to what extent he can be aggrieved from the award has to be looked into. Section 149 of the Act particularly Sub-section (2) is very material and in view of that a question arises if a person has got a limited right of defence and he is only entitled to take specific defence in case such as insurance company, then when going to the stage of appeal can it be said that his right of defence will stand expanded and Section 149(2) will be of no effect. We have also to keep in view Section 170 and derive legislative intent. It is one of the well settled principles of law of interpretation that where there are more than one interpretation possible, keeping in view the scheme of the Act, efforts must be made to harmonise the provisions of the Act and a harmonious construction should be placed. Section 149 provides the duties of insurer to satisfy judgments and awards against the insured in respect of third party risks. Section 149 (1) and (2) reads as under:
Section 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks,–(1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) or under the provisions of Section 163-A is obtained against any person insured by the policy then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and 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:
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle–
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.
Sub-section (7) is also very material for our purpose. It reads as under:
(7) No insurer to whom the notice referred to in Sub-section (2) or subsection (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.
17. A reading of Section 149 per se reveals that when a person in whose favour policy has been effected, it is the duty of the insurer that after certificate of insurance has been issued in favour of the person by whom the policy has been effected that the judgment and award in respect of such liability as is covered by the policy is obtained against the person insured by the policy, then irrespective of the fact that insurer may be entitled to avoid or cancel or irrespective of the fact he may cancel the policy, insurer has been made liable to pay the person entitled to benefit of the decree to the extent of sum assured payable under the insurance policy. No doubt, this obligation is subject to Section 149(2). Section 149(2) no doubt, provides and reveals that beyond doubt it is ordinarily not the liability of the claimant to implead the insurer as a party, but when the claim case is brought before the Tribunal, then the insurer is to be given a notice by the court and once he has been given notice through court, then he may be entitled to be impleaded as a party and to defend the action. But, section specifically says to defend the action on any of the following grounds, i.e., the ground that has been specified in Clauses (a) and (b) of Sub-section (2). The language of section is not that the insurer is entitled to defend the action on any ground in addition to the following grounds. Law provides that insurer is entitled to defend the action on the ground specified, means right of defence of insurer is circumscribed and he can defend the action only on the grounds specified in Sub-section (2). It clearly means that insurer is not entitled to defend the action in ordinary course on the grounds that may be available to the insured. Law provides so far as dispute regarding cause of accident, regarding quantum, etc., is in between the insured and the claimants, i.e., injured or the heirs of deceased on the one hand, the insurer in view of the insurance policy issued by the insurance company under which it has undertaken to pay compensation subject to the limits prescribed under the policy and subject to the conditions mentioned in the policy. But, so far as other aspect is concerned, namely, defences other than those specified in sub-section (2) of Section 149, those defences are not available to the insurer, i.e., insurance company which defences may be available to the insured. When I so opine, I find support for my view from sub-section (7) of Section 149. Sub-section (7) which has been quoted earlier clearly provides that no insurer to whom the notice referred to in Sub-section (2) or subsection (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2). So, this Sub-section provides and exhibits the legislative intent, that insurer will not be entitled to avail any defence other than those specified in Sub-section (2). Section 170 of the Act makes a further provision which may be read as ancillary and correlative of Section 149 as well as dealing with the circumstances in which power has been conferred on the Tribunal to allow the insurer to contest the claim on the grounds allowed to the insured as well. From a reading of this Section 170 of the Act two things come out that if a case is made out and the Tribunal is satisfied to the conditions referred to in Clauses (a) and (b), then if the insurance company has not been impleaded and the circumstance referred to therein come to existence, the Tribunal has to apply its mind and if it is satisfied with the conditions, then it has to record its findings and pass necessary directions. If the insurance company has been impleaded then it may also have a right to contest the claim on the grounds available to the insured on its being so permitted. This section, therefore, requires specific conditions to be satisfied which are mentioned in Clauses (a) and (b) and further in regard to those conditions Tribunal should be satisfied and record its findings when it so permits the insurer to raise those grounds which are only available to the insured. That satisfaction is not only to be subjective but also is objective and it must record reasons for its satisfaction. It is a specific requirement of law. Looking to this scheme of the Act and the sections, I put a question to myself can it be said that though the insurer has got a limited defence, and when insurer has neither right to take additional defences which are available to the insured, can it be said the insurer is entitled to take those defences [which at the stage of original trial under Section 149 (2) and (7) it is not entitled to raise] and pleas at the stage of appeal. What will be the consequences thereof? They have to be considered. Whether they will result in protracted litigation adversely affecting the injured or heirs in cases where a person dies in accident. The object of getting motor vehicle insured is that the injured person or heirs of the deceased may not be subjected to protracted litigation and may not be subjected to harassment on account of technicalities of law in the matter of execution. This being the basic object of law, compulsory provision is made for motor vehicles being required to be insured and while interpreting, we have to take note of it. Making compulsory the insurance of motor vehicles is neither to provide protection to the owner of the vehicle or insured. Really the object of making compulsory insurance is for the benefit of the person injured or heirs of the deceased who died on account of motor accident. Now a question, as such, arises whether an interpretation can be given to Section 173 which may frustrate the provisions of Section 149(2) or Section 170 and which may frustrate the very object of the provisions. The expression ‘person aggrieved’ used in the Act has got many colours. It has got wider interpretation. In my opinion, it has to take its colour from the scheme of the provisions of the Act. A person cannot be aggrieved and should not feel aggrieved where his defences are not affected. Right to reagitate the defence is available only when an appeal is filed from a decision or award of the court or Tribunal. When right of appeal is given and judgment is challenged that pleas and defences raised by him, if have wrongly been rejected. A person may be aggrieved if he has made a claim and his claim has been rejected either in whole or in part. A person may be aggrieved against whom a claim has been decreed rejecting all his defences available under law. To the owner of the vehicle, no doubt, all defences are available because there is no law circumscribing it. Owner of the vehicle or driver may challenge the allegation of negligence levelled on him. He may challenge the quantum. Even if the real claim is against the owner of the vehicle, he has got full right to take all defences. Therefore, in appeal he can raise all those grounds. But, where the statute gives restricted right of defence confined to specified grounds, the grounds specified in the Act which authorises defence, then the specific provision being there, general grounds of defence may not be applicable. That legitimate limited right of defence is given to the insurer that it may take the defence of breach of conditions of the contract of licence by the owner of the vehicle or insured, by way of alleging that the person driving the vehicle had got no licence and thus committed breach of the conditions of the policy or the like. So, once the law specifies what defence one can take and law defines the manner and extent of defence, then such person, i.e., insurer cannot take other than those defences. Had the expression been used “in addition, all the defences available to the insured”, that may be a different situation. The legislature has not used such an expression. The legislature has confined to specifying the types of defences available to the insurer. Legislature was cautious that there may be cases that the owner may collude or may act mala fidely either at the initial stage or later, then it happens to come to the knowledge of the insurer that he, i.e., insured failed to raise the defence pleas at the stage of trial and that insured has colluded with the claimant or for any mala fide reasons or for causes or under circumstances beyond control of the insurer, insured has failed to contest, he may approach the Tribunal and ask the Tribunal to permit it to raise the defences available to the insured and the Tribunal has been given that power that if it finds for the reasons recorded by it that circumstances in sub-section (2) exist, it may allow the insurer to defend the act on the pleas which could be available to the insured. Looking to the scheme of provisions of Section 149 (2) and (7) and Section 170, I am of the opinion that right of defence is limited. When the right of defence is limited, how can it be said that a person can be aggrieved with reference to the award particularly with reference to the defences available to the insured. According to the provisions of the Act and policy, it is bound to pay off or reimburse and to discharge the liability of the insured because of agreement. Insurer and insured stand on a different footing. In the case of Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi, , their Lordships have observed as under:
When a person is given a right to raise a contest in a certain matter and his contention is negatived, then to say that he is not a person aggrieved by the order does not seem to us to be at all right or proper.
In Black’s Law Dictionary, 6th Edn., p. 65, column (2), aggrieved party has been defined as “one whose legal right is invaded by an act”. A Division Bench has laid down in the case of Rajsingh v. Abdul Gani as under:
Aggrieved person is a person who has suffered from legal grievances and a person against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused him something or wrongly affected his title to something.
Taking in view these basic principles that a person aggrieved is one who has suffered from legal grievances. Legal grievances can be suffered only if his legal claims are rejected by the order passed by the court or Tribunal. A person cannot be claimed to be aggrieved by an order which does not adversely deal with the defences available to the person. So, therefore, in view of Section 173 a person who has suffered legal grievances from an order by rejection of his pleas either in support of the claim or in his defence against the claim, then on rejection thereof, he may have a legal grievance, but not otherwise. With reference to the insurance company or insurer when the right of defence is limited or restricted, insurer can be an aggrieved party if defences available under Section 149(2) and taken up by it are rejected. If certain defences are not available to it, but available to other persons are rejected by the Tribunal, then insurer cannot claim that he is a person aggrieved. It has been contended that finally insurance company will have to pay the amount even if liability is of the insured, that amount it is liable to pay because of contract of insurance whereunder he has assured the insured to indemnify or to pay off. Learned counsel contended that he is legally liable to pay. Again legally liable because of the contract of insurance policy to the extent subject to the provisions of the policy and subject to the terms of Section 149(2) that insurer shall have to pay the person benefited under the decree. When there is only the limited scope of defences available to insurer under Section 149(2) of the Act, the insurer can be aggrieved only to that limited extent of defences availed where its defences are rejected by the order of Tribunal. But, where its defences either have not been pressed or not been established and it does not challenge those findings, but challenges those findings which touch and relate to the defence available to the insured, insurer cannot be permitted to raise those grounds of challenge against award and in such cases, it cannot be termed as the person aggrieved. Really, insurer cannot be said to have a right of appeal on the ground of quantum, on the ground of nature of accident or findings recorded by the Tribunal on such points, with exception to the cases where insurer has approached the Tribunal under Section 170 of the Act and the Tribunal has considered his application and allowed him and made available all defences which are available to the insured in addition to the defences available under Section 149(2). Right of appeal is always circumscribed by conditions with which right to claim or defend is controlled or circumscribed. It cannot be expanded beyond the defences available. If I accept the contentions of the learned counsel for the appellants irrespective of the fact that defences at the stage of trial have been or were limited, but insurer has got at appellate stage a wider scope, then it will result in rendering the provision of Section 149 (2) and (7) and Section 170 redundant. It will not only result in rendering redundant the provisions, but it will also lead to absurd situation. Those defences which are not available at the trial stage if insurer can raise those defences in appeal from award, i.e., at appellate stage then insurer may ask the appellate court or this court either to remand the case for trial afresh or ask the court in appeal to record evidence on those pleas which under law, i.e., under Section 149 (2) and (7) insurer has not been entitled to raise. This will result in allowing a party to do something, law debarred, in an indirect manner and in round about manner and clear breach of Section 149 (2) and (7) of the Act.
18. Thus considered in my opinion, the right of appeal is circumscribed by the right of claim and right of defence available to a party. He cannot be permitted to travel beyond the right of defence at the stage of appeal. What a person cannot do directly, it is well settled that he cannot be allowed to do indirectly. It has been contended by the learned counsel for the appellants that the insurance company has been impleaded from the very beginning. So it has got full right of defence. This contention cannot be accepted. When a person is not impleaded, the Tribunal has to order its impleadment. When he has been impleaded as a party then what defences are available are clearly indicated as mentioned earlier. It does not make any difference if with the object of allowing the insurer to defend his case on the pleas available under the law and in order to avoid delay, the claimant impleads the insurance company and to enforce its legal liability under the policy of insurance. The interpretation placed by the learned counsel for the appellants may result in a discrimination that a person who has been impleaded by a claimant may have a wider scope of defence. Such an interpretation runs counter to the spirit of Section 170. As such, it is of no use. Whether insurance company has been impleaded at the initial stage by the party while filing the claim petition or subsequently impleaded under the directions of the Tribunal or under Section 170 it is impleaded, in every case unless the Tribunal has permitted it to raise additional grounds, grounds of defence available to it are limited as indicated in sub-section (2) of Section 149. That being the position, in my opinion, the right of appeal will also be limited and circumscribed with reference to those defences available only. But, as I have mentioned earlier, exception is applicable where as per Section 170, it is so allowed, then defences available to the insured could be availed by insurer also, otherwise, as I have mentioned earlier, any other construction of Section 173 will lead to absurdity and it may allow a person to do something which he is not entitled to avail or do. When I so observe, I find support from the Division Bench’s decision of this court in the case of Oriental Fire & Genl. Ins. Co. Ltd. v. Hanumakka 1982 ACJ 372 (Karnataka), where the Division Bench of this court has been dealing with similar provisions of Motor Vehicles Act of 1939, namely, Section 96 (2) and Section 110-C (2-A). Their Lordships after referring to Section 110-C (2-A) which is pari materia to Section 170 observed:
(5) This has to be read in the context of Section 96 (2) of the Act under which the right of the insurance company to contest upon notice is confined to the grounds mentioned therein. That being so, the insurance company can contest the proceeding on other grounds only if it is impleaded as a party as contemplated under Section 110-C (2-A) of the Act, for reasons recorded by the Tribunal in that behalf and not otherwise.
In para 6, Division Bench further observes:
(6) In the instant case, the learned counsel appearing for the appellant submitted that he did cross-examine the witnesses examined on behalf of the claimants and contested the case on all grounds available to the owner and, hence, the permission of the Tribunal should be implied. He, however, fairly conceded that there was no order passed by the Tribunal as contemplated under Section 110-C (2-A) of the Act permitting the insurer to contest the claim on all the grounds. That being so, it only means that the insurer has done something going beyond its right and it is not supported on any legal basis. Hence, that part of the evidence, which is elicited in the cross-examination by the insurer going beyond its power, has to be eschewed. Simply because an illegality is committed before the Tribunal, that cannot be made a ground to perpetuate it in the appeal. Hence, there is no substance in the contentions raised before us that the appeal should be held tenable because the Tribunal, without noticing the section and the specific provision of law, connived at the cross-examination by the insurer on all the grounds and that cannot be taken as implicit permission. Permission under the section should be in writing recording reasons for it. Hence, there is no scope to infer implicit permission in the section.
Dealing with Section 110-D which is analogous to Section 173, their Lordships further observed (in para 9) as under:
(9) It is no doubt true that right of appeal is given to any person who is aggrieved. Here, the word ‘aggrieved’ has to be construed in the context of the right of the insurance company to contest, which is confined by the specific provision made in Section 96 (2) of the Act. The two provisions of the Act have to be construed as to make them harmonious and consistent. When the word ‘aggrieved’ is used in Section 110-D of the Act, it means that the party should be legally aggrieved. The insurance company becomes legally aggrieved only when the findings are given against it on the grounds mentioned in Section 96 (2) of the Act, because they are the only grounds available to it for defence. It cannot be aggrieved on a finding of actionable negligence because the company has no right to contest in that behalf. It is only the owner or the driver who can challenge on that score.
At the end of the decision, their Lordships observe:
Therefore, we are of the considered view that in view of the specific provisions of law discussed above, the present appeal by the insurance company, on grounds not available to it, is untenable in law. The same is dismissed without more. Since, in the eye of law, the appeal itself is non-existent, the cross-objections would not survive.
I further find support from an earlier decision of the Supreme Court in the case of British India General Insurance Co. Ltd. v. Captain Itbar Singh 1958-65 ACJ 1 (SC). This view has also been expressed in the very latest decision of their Lordships of the Supreme Court in the case of Shankarayya v. United India Insurance Co. Ltd. . In para 4, their Lordships have observed after referring to Section 149(2) and Section 170 as under:
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 from 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 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, the respondent No. 1, insurance company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal.
19. Thus considered in my opinion, the appellants are not entitled to challenge the award on the merits of the award itself. Three applications no doubt have been made on behalf of the appellants in Appeal Nos. 362, 1597 and 1995 of 1998 purporting to be under Section 170. Equity does not help those who are negligent, whose conduct is not above board. It is too late in the day now to allow these applications because, allowing the applications will be tantamount to remanding the matter for decision afresh, allowing all these pleas and then return. A person who sleeps over his remedy cannot be allowed to raise that plea at a later stage. In this view of the matter, this court will not entertain these applications and applications are hereby rejected.
20. All these appeals preferred by the insurer have been against the quantum of compensation awarded. As mentioned earlier, these defences are not available. So appellants are not entitled to file appeals on those grounds. If the appellants had to apply under Section 170, they should have applied at the earlier stage before the Tribunal, when they found that insured were not contesting. Having not done so and slept over, it is not open for them now to raise those pleas. A person who sleeps, loses. There is a Hindi saying, ‘Jo soya so khoya’.
From the perusal of the above cases, it comes out that right of appeal to the insurer is limited as specified under the Act and ordinarily, except in cases under Section 170, insurer is not entitled to challenge the award on merits of the claim such as, cause of accident, quantum, etc. The appeals being not maintainable, legally they are non est. When the appeals are non est and non-existent in the eye of law, as held by this court, the cross-objection also would not survive. In this view of the matter, all the appeals filed by the appellants are hereby dismissed with costs and cross-objection filed in Appeal No. 1962 of 1998 is also rejected. The order and award of the Tribunal in all cases is confirmed. The amount that has been deposited by the appellants in respective M.V. cases may be remitted to the Tribunal concerned for being paid to the claimants. The appellants are directed to deposit balance of the amount with interest in respective M.V. cases up-to-date within three months from the date of this order with the Tribunal and when it has been so deposited, it may be disbursed accordingly.