NEW INDIA ASSURANCE COMPANY LIMITED Vs. DEVI KUMARI

JUDGEMENT

(1.) WE have heard the learned counsel in both these appeals or rather in the M. F. A. filed by the insurance company and the owner and the cross-objections filed by the original claimants which have been separately numbered as the companion M. F. A. A very interesting, rather unusual but important aspect of the law has been thrown up before us which we shall summarise. The owner, though served before the Tribunal did not appear nor did he contest and he was placed ex parte. The insurance company has contested the claims on merits and being aggrieved by the order passed by the Claims tribunal, the insurance company and the owner have filed M. F. A. No. 2469 of 1995. It is not as though the owner is not a party as often happens, but in this instance the owner is a co-appellant. We need to also clarify that despite the owner not having contested before the Claims Tribunal that the insurer was permitted by the Tribunal to cross-examine and to contest on merits. The respondents' learned counsel brings it to our notice that no leave had been applied for under section 170 [section 110 (2-A)] of the Motor Vehicles Act, nor had it been granted and that this formality would make some difference particularly in view of the latest judgment of the Supreme Court. The maintainability of the appeal filed by the insurance company and the owner has been assailed by the other side and the basis for this is that the Supreme Court in the latest decision in National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC), has in terms held that in the absence of specific sanction being obtained under section 170, that an appeal by the insurer alone directed against the aspect of quantum would not be maintainable. In the light of the law as now laid down by the Apex court the respondents' learned counsel has submitted that M. F. A. No. 2469 of 1995 will have to be dismissed on the ground of maintainability.

(2.) THE learned counsel who represents the appellants in this appeal put forward two propositions. First of all, he points out that the appeal was governed by the law as it was then in force, i. e. , in the year 1995 and he demonstrates to us that the appeal was perfectly maintainable and was in keeping with the law then in force which position is undoubtedly correct. His submission is therefore that as far as maintainability is concerned, this is the legal position which we have to accept and apply because the Apex Court judgment cannot have retrospective effect and furthermore he is certainly entitled to argue that it is impossible to visualise sweeping changes in the law or interpretation of law that may take place at a later point of time. While the learned counsel accepts the position that the law as interpreted and in force on the date of hearing of the appeal will undoubtedly govern the appeal on merits, he submits that the court will have to make a distinction with regard to maintainability because of what has been pointed out by him. The second ground canvassed is that on paper and on record the owner is a co-appellant and that unlike many other cases where the owner is not a party this appeal will not be hit by the Apex Court decision. His submission is that in a given instance even if a party does not contest the proceeding in the first round for whatever reason which may include default, that if the order is unjust, unfair, excessive or vulnerable legally, the law does not preclude the aggrieved party from filing an appeal even if the party has not contested in the first round and invariably the only requirement is that the party has to satisfy the appellate court as to why the default had taken place before the trial court. As far as the second proposition is concerned, while there is considerable substance in what has been pointed out, on the facts of the present case we find that it may not be necessary to examine this proposition in depth because the co-appellant who is the owner has not appeared even at the hearing of the appeal nor has any ground been set out for his not having contested before the trial court and consequently, we will have to take it that in these circumstances the owner would be precluded from maintaining any appeal. This is precisely where the problem emanates because the learned advocate submits that if the owner is disqualified and is nonsuited the insurance company will be left alone as the sole appellant and the appeal would therefore have to fail in the light of the decision reported supra. In the present instance, having regard to the fact that the owner has not appeared and shown cause even before this court, we have no option except to dismiss the appeal filed by him and when that happens, ipso facto the same consequences would carry over to the insurance company.

(3.) AS regards the first proposition canvassed by the learned counsel Mr. Mahesh what we need to observe is that while there can be no dispute about the fact that issues such as maintainability are required to be governed by the law as it was in force when the appeal was filed, that at the same time, the court hearing the appeal is equally governed by the subsequent changes in law and this is not the only instance in which a party to a litigation has been prejudicially affected by such changes. But unfortunately, that is the scheme of working of the courts as otherwise, there may be serious complications which arise if the court were to close its eyes to the current law and apply the old law. It is in this situation that we are required to hold that m. F. A. No. 2469 of 1995 will have to be dismissed on the ground of maintainability.