HIGH COURT OF CHATTISGARH: BILASPUR
M.A. No. 784 of 2003
United India Insurance
Company Limited
...Petitioners
Versus
1. Anil Kumar Sahu
2. Kisanlal Sahu
3. Leelaram Devangan
...Respondents
! Shri Sanjay S. Agarwal
^ Shri Raja Sharma
Hon'ble Shri Dilip Raosaheb Deshmukh,J
Dated:08/05/2008
: Jugdment
ORDER
(Passed on 08.05.2008)
The insurer has filed this appeal against the
award dated 13.5.2003 in claims case No.74/1999 by
the IVth Additional Motor Accidents Claims Tribunal,
Durg (CG) (henceforth the `Tribunal), whereby in an
injury case, compensation of Rs.2,47,009/- has been
awarded jointly and severally against the appellant
and the respondents No.1 & 2 i.e. driver sand the
owner of the motor cycle bearing No. MP 24-EB/5029.
(2) Despite service of notice, respondent No. Leela
Ram Dewangan/claimant did not contest this appeal.
(3) Admittedly, on 8.9.1998, the respondent No.3
Leela Ram Dewangan was riding on his scooter from
Durg to Urla. He was carrying a bag of sugar
weighing about 15 Kgs near his feet. It was also
not disputed by the claimant in the Tribunal that
the accident occurred on a curve.
(4) The Tribunal considered the fact that the
claimant was carrying a bag containing 15 Kgs of
sugar near his feet on the scooter and held that to
some extent, the claimant was also responsible for
the accident. However, it did not apportion the
compensation awarded between the respondent
No.3/claimant on the one hand and the appellant and
respondents No.1 & 2 on the other. The Tribunal
awarded compensation of Rs. 2,47,009/- jointly and
severally against the appellant and the respondents
No.1 & 2 with interest @ 6% per annum from the date
of application till realisation. The Tribunal also
ordered that if the compensation was not deposited
within two months, the appellant and respondents
No.1 & 2 herein shall also be jointly and severally
liable to pay interest @ 12% per annum on the amount
awarded.
(5) The respondent No.1/driver and respondent
No.2/owner of the motor cycle No. M.P.24-EB/5029 did
not prefer any appeal or cross objection against the
award.
(6) The appellant/insurer preferred the appeal on
the following grounds:-
a. that, the Tribunal acted illegally
and/or with material irregularity in
fastening the liability upon the
insurance company.
b. the respondent No.1/driver did not
posses valid driving licence to
drive a motorcycle on the date of
accident.
c. that, in view of the finding that
the respondent No.3 was also
responsible for the accident to some
extent, compensation ought to have
been apportioned by the Tribunal.
(7) Learned counsel for the appellant/insurer did
not dispute that permission under Section 170 of the
Motor Vehicle Act to contest the claim on all or any
of the grounds that are available to the person
against whom the claim was preferred, was not sought
by the insurer form the Tribunal.
(8) Learned counsel for the appellant/insurer
argued that in view of the finding recorded by the
Tribunal that the respondent No.3/claimant was also
responsible to some extent in causing the accident,
the liability to pay compensation ought to have been
apportioned by the Tribunal. It was also urged that
the Tribunal failed to notice that the permanent
disability certificate (Ex.P-7) on the basis of
which a finding that claimant had sustained 50%
permanent disability was recorded, was obtained by
the claimant from Dr. G.S. Thakur after filing the
application for compensation under Section 166 of
the Motor Vehicles Act. It was also urged that the
Tribunal did not record any finding regarding
culpable negligence of the respondent No.1 in the
accident. It was further urged that due to non-
examination of Dr. G.S. Thakur, the
appellant/insurer did not have any opportunity to
cross examine Dr. G.S. Thakur on the question of
permanent disability having been suffered by
respondent No.3/claimant. Lastly, it was urged that
the admission by respondent No.3/claimant that the
accident occurred on a curve and that he was
carrying a bag load of 15 Kgs sugar near his feet,
the Tribunal ought to have held that the accident
occurred due to the negligence of the respondent
No.3/claimant. Ground No.(b) mentioned in para 6
(supra) was not pressed.
(9) Shri Raja Sharma, counsel appearing on behalf
of respondents No.1 & 2 adopted the arguments of the
learned counsel for the appellant and submitted that
even though the respondents No.1 & 2 did not prefer
any cross objection, this Court had jurisdiction
under order 41 Rule 33 of the CPC to pass any order
which ought to have been passed by the Tribunal for
doing complete justice between the parties.
(10) Having considered the rival submissions, I have
perused the record. In National Insurance Company
Ltd. Chandigarh v. Nicolletta Rohtagi and others AIR
2002 Supreme Court 3350, the Apex Court held as
under:-
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“17. Before proceeding further, it may be
noticed that while `The Motor Vehicles
Act, 1939′ was in force, Section 110
-C (2A) was inserted therein in the year
1970 which corresponds to Section 170 of
the 1988 Act. The said provision provides
that in course of an inquiry of a claim if
the Tribunal is satisfied that there is a
collusion between the claimant and the
insured or the insured fails to contest
the claim, the Tribunal for reasons to be
recorded in writing, direct that the
insurer who may be liable in respect of
such claim, shall be impleaded as a party
to the proceeding and the insurer so
impleaded shall thereupon have, without
prejudice to the provisions contained in
sub-section (2) of Section 149, the right
to contest the claim on all or any of the
grounds that are available to the person
against whom the claim has been made.
18. The aforesaid provisions show two aspects.
Firstly, that the insurer has only
statutory defences available as provided
in sub-section (2) of Section 149 of 1988
Act and, secondly, where the Tribunal is
of the view that there is a collusion
between the claimant and the insured, or
the insured does not contest the claim,
the insurer can be made a party and on
such impleadment the insurer shall have
all defences available to it. Then comes
the provisions of Section 173 which
provides for an appeal against the award
given by the Tribunal. Under Section 173,
any person aggrieved by an award is
entitled to prefer an appeal to the High
Court. Very often the question has arisen
as to whether an insurer is entitled to
file an appeal on the grounds available to
the insured when either there is a
collusion between the claimants and the
insured or when the insured has not filed
an appeal before the High Court
questioning the quantum of compensation.
The consistent view of this court had been
that the insurer has no right to file an
appeal to challenge the quantum of
compensation or finding of the Tribunal as
regards the negligence or contributory
negligence of offending vehicle.
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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, implead 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 condition precedent
embodied in Section 170 is satisfied and
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 172 of the 1988
Act, the same would go contrary to the
Scheme and object of the Act.
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32. For the aforesaid reasons, our answer to
the question is that even if no appeal is
preferred under Section 173 of 1988 Act by
an insured against the award of a
Tribunal, it is not permissible for an
insurer to file an appeal questioning the
quantum of compensation as well as
findings as regards negligence or
contributory negligence of the offending
vehicle.”
(11) In view of the fact that admittedly the
appellant did not make any application under Section
170 of the Motor Vehicles Act before the Tribunal
for permission to contest the claim on all grounds
that were available to the insured, the appeal by
the insurance company on the ground of quantum or
negligence or contributory negligence is not
tenable. The owner and driver not having preferred
any appeal against the award passed by the Tribunal
and the appeal by the insurer not being tenable, the
submission made by the learned counsel for the
respondents No.1 & 2 is rejected.
(13) In view of the above, the appeal has no merit
and is accordingly dismissed
JUDGE