JUDGMENT
Prabha Sridevan, J.
1. The insurer is the appellant. An order was passed against the appellant for a sum of Rs. 1,84,800. The claimant was the mother of the deceased. The Motor Accidents Claims Tribunal found that the driver of the bus belonging to the respondent No. 2 was negligent. The award was passed only against the insurer and not against respondent No. 2 insured.
2. Mr. R. Yashod Vardhan, the learned Counsel appearing for the appellant would first submit that the event was not an accident, but an act of God because the accident occurred on account of the tree that fell down on the road and not because of the negligence of the driver. His next submission was the quantum fixed was excessive since the court below failed to see the claimant was the mother and, therefore, a lower multiplier ought to have been applied. He also submitted that if this Court came to the conclusion that the insurer cannot raise any ground regarding quantum, the error in the award shall be rectified by invoking Order 41, Rule 33, Civil Procedure Code in favour of the respondent No. 2, the insured though no appeal had been preferred by the respondent No. 2 corporation. He relied on Managing Director, Marudhu Pandiyar Trans. Corporation v. M.A. Prakasam (1997) 3 LW 734; Delhi Electric Supply Undertaking v. Basanti Devi 1999 aCJ 1465 (SC) and Managing Director, Annai Sathiya Trans. Corporation Ltd. v. Janardhanam .
The learned Counsel for the respondents, however, would submit that it was not open to the insurance company to raise these grounds.
3. The finding of fact of the Tribunal is that a tree was lying on the road when the driver of the bus belonging to the respondent No. 2 drove the vehicle rashly and negligently and dashed against the tree that was lying across the road. In these circumstances, the finding regarding negligence cannot be set aside. As regards the multiplier, it is no doubt true that when contribution by the victims to appellants-claimants is assessed, the court should take into account, the age of the appellants and whether they would have received the same contribution after his marriage. A Division Bench of this Court in Managing Director, Marudhu Pandiyar Trans. Corporation v. M.A. Prakasam (1997) 3 LW 734, had held that it is the age of the appellants which is relevant for deciding on the multiplier. So, the Tribunal ought not to have fixed the multiplier purely on the basis of the age of the deceased.
4. The question is whether the quantum can be reduced at the instance of the insurance company. In Delhi Electric Supply Undertaking v. Basanti Devi 1999 CCJ 1465 (SC), the Supreme Court had held that the appellate court has power under Order 41, Rule 33, Civil Procedure Code, wide enough to determine any question not only between appellant and respondent, but also between respondent and corespondent. For this, the Apex Court relied on the earlier decision in Mahant Dhangir v. Madan Mohan 1987 SCC (Supp) 528. It was, held that, Rule 33 was liberal enough and the parties before the lower court should be there before the appellate court and the question raised must properly arise out of the judgment of the lower court. It was also held that judicial discretion should be properly exercised to determine all the questions urged to render complete justice and that court should not exercise discretion on mere technicalities. Managing Director, Annai Sathiya Trans. Corporation Ltd. v. Janardhanam , also reiterates the existence of this wide power which should be exercised tempered with judicial discretion. But the difficulty lies in the fact that the insurer is the appellant. The insurance company can only raise such defences as are specified in Section 149(2) of the Motor Vehicles Act (hereinafter referred to as ‘the Act’). It can invoke Section 170 of the Act and satisfy the Tribunal that it should be permitted to raise all defences including the ones not mentioned in Section 149(2) of the Act as there is collusion between a person making claim and person against whom claim is made or that the person against whom the claim is made has failed to contest the claim. If the Tribunal is satisfied it may grant permission to the insurance company to raise its defence on all aspects. Since the appeal is a continuation of original petition, the provisions of Section 170 of the Act would apply, to such appeal if the Tribunal had granted permission under Section 170 of the Act.
5. The Division Bench of this Court in P. Anwer Batcha v. Tamilarasai , following several decisions of the Supreme Court held that if the insurance company had not obtained permission under Section 170 of ‘the Act’ it cannot challenge the quantum of compensation. In this case, the permission under Section 170 of the Act has not been obtained. Therefore, the insurance company cannot raise the question of quantum of compensation. It was further held that though the appeal of the insurance company will stand dismissed as not maintainable, the appeal filed by the insured is maintainable but, however, it was dismissed as devoid of merits. A reference to the Apex Court decision in Chinnama George v. N.K. Raju , was made and a portion of it was extracted in this decision. The following conclusions can be drawn therefrom.
Insuring a motor vehicle against third party risk is legally obligatory. Insurance policy must comply with Section 147 of the Act. Insurer must satisfy the judgments and awards against the person insured, in respect of third party risks. The ground on which the insurer could avoid his liability is given in Sub-section (2) of Section 149. If none of the conditions in Section 149(2) of the Act exist then he is not a person aggrieved by the award and the warning was issued that courts should take care to ascertain this position in a proper consideration so that the statutory bar against the insurer in a proceedings of claim of compensation is not rendered irrelevant by the subterfuge of the insurance company joining the insured as co-appellant in the appeal filed by it.
6. Two reasons were given by the learned Counsel for the appellant to interfere with the award. One is that the multiplier adopted was wrong and that the other is that this Court should exercise powers under Rule 33 of Order 41, Civil Procedure Code to render justice and that even if the reduction of quantum is not a ground available to the insurer it is definitely available to the insured, who is the respondent No. 2 and, therefore, justice must be done. This argument on the face of it appears quite sound but a latent defect surface and that is the award of the Motor Accidents Claims Tribunal was not against respondent No. 2 who is the insured. The Motor Accidents Claims Tribunal in Clause (1) of the award made only the appellant liable to satisfy the claim of the respondent No. 1. Therefore, the argument that the person who is aggrieved but has not filed an appeal can still urge those grounds for the court to exercise its wide powers under Order 41, Rule 33, Civil Procedure Code does not exist in this case. Therefore, this ground cannot be considered at the instance of the respondent No. 2 who has not been called upon to pay any amount. So neither can the insurer appellant raise the question of quantum as a defence, nor can it be considered at the instance of the insured who is not a person aggrieved. The decisions cited above are clear on this point.
7. But there is an error in the award of the court below which must be set right. Under a contract of insurance the insurer agrees to indemnify the insured against any liability or claim imposed on the insured? In Malkiat Singh v. Joginder Singh AIR 1998 SC 257, it was held that the liability of the insurer arise only when the liability of the insured is upheld. Following para is relevant:
(3) It follows that the insurer cannot be held liable on the basis of the above policy in the present case and, therefore, the liability has to be of the owner of the vehicle. However, we find that the High Court, without assigning any reason, has simply assumed that the owner of the vehicle was not liable and that the insurer alone was liable in the present case. This conclusion, reached by the High Court is clearly erroneous. The liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. There is thus, a basic fallacy in the conclusion reached by the High Court on this point.
The award assailed in this appeal also suffers from this fallacy. If one examines Sections 147 and 149 of the Motor Vehicles Act it is seen that a policy of insurance, indemnifies the person or classes of persons against any liability which may be incurred by him in respect of death or bodily injury arising to any person or to any passenger of a public service vehicle or arising out of a vehicle in a public place. Therefore, the insurance policy indemnifies the insured against the liability.
8. Section 149 deals with the duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. If there is no judgment or award against the insured what is the duty of the insurer? Section 149(1) of the Act refers to the judgment or award obtained against any person insured by the policy. Section 149(2) of the Act deals with the grounds that are available to an insurer absolving them of the liability to pay any sum in respect of ‘such judgment or award’. Similarly, Section 149(4) deals with the restriction in the certificate of insurance which also underscores the basic contract between the insurer and the insured that fixes the liability on the insurer to pay the amount payable by the insured. The above sections can only be understood to mean that the insurer is liable to pay only that amount which is granted in a judgment or award obtained against the person insured.
9. In this case there is no judgment or award against the insured. Therefore, there can be no liability on the part of the insurer to pay any sum. An impasse is thus created and one finds that since respondent No. 2, not being a person aggrieved by the award cannot file an appeal or urge any ground for exercise of power under Order 41, Rule 33, Civil Procedure Code and since the respondent No. 2, the insured has not been fixed with any liability to pay, the insurer need not pay any sum. The contract of insurance is only a contract of indemnity to indemnify the liability of the insured. Where the indemnitee suffers no liability, the indemnitor has no obligation to indemnify. But to allow the appeal on this ground absolving the insurer’s liability would result in injustice to the claimant, who has prayed for compensation for the death of her only son. The fallacy in the award must be set right.
10. The finding of fact is that the driver of the bus belonging to the respondent No. 2 was negligent in driving the bus. Therefore, the death of the respondent No. 1 son occurred on account of the wrongful act, namely, the rashness and negligence of the driver. In those circumstances, the Tribunal erred in not giving any reasons why the respondent No. 2 was not liable to pay the compensation. The award is, therefore, modified making both the appellant and the respondent No. 2 jointly and severally liable to pay the compensation.
11. For the reasons given supra the quantum of award remains unchanged. C.M.A. is ordered accordingly.
12. The connected C.M.P. is closed.