SURENDRA PRABHU Vs. SRIPADARAO SHANKARARAO PATIL

JUDGEMENT

(1.) THIS appeal arises from the judgment and award dated 29. 9. 2000 delivered by Mr. M. Ramesh Rao, Addl. Civil judge (Sr. Dn.) and M. A. C. T. , Davanagere awarding a total sum of Rs. 7,61,500 in m. V. C. Case No. 1370 of 1995. The appeal has been filed by New India Assurance co. Ltd. with Surendra Prabhu, appellant no. 1.

(2.) IT will be appropriate to mention the facts of the case in brief as hereunder: on 28. 5. 1995 at about 7. 30 p. m. , on n. H. 4 near Kalapanahalli, the motor accident took place and the offending vehicles in that accident were car No. KA 03-M 2089 and minibus No. KA 13-4545, referred to in the judgment of the Tribunal as well as the judgment of this court as 'car' and 'minibus'. It may be stated that many claim petitions were filed including Claim petition No. 1370 of 1995. It is the case of the claimants/petitioners in M. V. C. Case no. 1370 of 1995 that the deceased was aged 27 years and died on account of the injuries caused in course of accident, in spite of medical service being rendered. The claimants made claim for a total sum of Rs. 15,40,000 under different counts. It was alleged that the deceased was at the time of accident working as medical representative of Johnson and Johnson Limited, bombay and was getting Rs. 4,082 per month plus other allowances, in total, his monthly income was Rs. 10,000. It may be mentioned here that apart from M. V. C. Case No. 1370 of 1995, there were 11 other m. V. C. cases. All the cases were tried together and disposed of by the Tribunal by one common judgment. In all the cases, the driver and the owner of minibus, remained absent and the respondent No. 3 before the Tribunal, i. e. , Oriental Insurance co. Ltd. , with which the minibus was insured, filed the written statement. That the respondent No. 4 before the Tribunal, i. e. , surendra Prabhu, the owner of the car, did not file written statement actually. What did take place is that the present appellant no. 2, New India Assurance Co. Ltd. , filed its written statement raising all sorts of pleas including those not permissible to be raised by the insurance company under the provisions of section 149 of the Motor vehicles Act, 1988 (for short 'the Act' ). We mean to say that New India Assurance co. Ltd. raised the pleas in defence not only those that were available to the insurance company, but also those that could be available to the insured only and not to insurer and written statement was filed by it. Later on, it appears from the narration of facts that the owner of the car is said to have adopted the written statement filed by the insurance company, i. e. , appellant no. 2, who was respondent No. 5 before the Tribunal. As I mentioned earlier, neither the driver nor the owner of the car had filed their separate written statements. The tribunal after examining the evidence, no doubt, held that the accident had taken place on account of the contributory negligence to the extent of 50 per cent of each of the drivers of the minibus as well as of the car in question. The Tribunal after recording this finding with reference to the case No. 1370 of 1995 held that the claimants in that case are entitled to a sum of rs. 7,61,500 in total, on all counts as compensation and held that driver, owner and insurer of car on one hand as well as owner, driver and insurer of minibus were liable jointly and severally to pay the compensation awarded with interest thereon in proportion to the contributory negligence of the drivers of car and minibus as held and found.

(3.) THAT as mentioned earlier, the appeal has been filed jointly by the insurance company, i. e. , insurer of the car, i. e. , New India assurance Co. Ltd. with the insured, i. e. , owner of the car who were respondent Nos. 4 and 5. On a question being posed, before the learned counsel for the appellant, as to how the appeal is maintainable, in view of the provisions of sections 147, 149, 173 of the Motor Vehicles Act, in the circumstances of the case, the learned counsel for the appellants contended that the written statement filed by the insurance company had been adopted by the owner. He further contended that when the written statement filed by the insurance company had been adopted by the owner, the appeal, at the instance of both, can be maintained and particularly, on the question of quantum of compensation, as owner has adopted the written statement of insurance company and, therefore, both are entitled to file the appeal. Learned counsel further contended that in view of the insurance policy, it was open to the insurance company to avail all the pleas, which were available to the insured. Learned counsel appears to intend to submit that in such case, section 149 will not debar the insurance company from availing the defences and pleas available to insured, while filing the appeal. Learned counsel for the appellants further contended that the insurance company is entitled to take those pleas. Learned counsel has been very fair to point out that no application for permission was moved under section 170 of the Motor Vehicles Act nor any permission was granted to the insurance company, to avail the grounds of defences which are available to the insured in such cases. Learned counsel contended that as the insurance company will have to pay the money under the decree and section 173 of the M. V. Act does not put any bar against the rights of the appellant/insurer to file an appeal, it is open to the insurance company to avail pleas which are available to the insured and to challenge the quantum of compensation awarded if that has been granted arbitrarily or illegally. Learned counsel for the appellants, Mr. Seetharama Rao in support of his contention that as the owner of the motor car adopted the written statement filed by the insurance company so appeal is maintainable at the instance of both, invited the attention of the court to the provisions of Order I, rule 8 of the Code of Civil Procedure and argued that, it was open to the insurance company to take those defences as are open to be taken as defence by the owner insured.