NEW INDIA ASSURANCE CO. LTD. Vs. AVANTIKA AGGARWAL

JUDGEMENT

(1.) THE appellant, New India Assurance Company Ltd., insurer of the offending vehicle has preferred an appeal challenging the impugned order dated 01.03.2006 passed by the learned MACT. The impugned award has arisen out of the claim petition filed by respondent Nos. 1 to 4 against the appellant as well as against respondent No. 5 claiming compensation for the death of Shri Alok Kumar. The brief facts which are necessary for deciding the present appeal inter alia are that respondent Nos. 1 to 4 are the legal heirs of deceased Shri Alok Kumar who had died on 30.8.2001 while driving his Santro Car which was hit by the offending Tata Sumo driven by respondent No. 5 rashly and negligently. As a result of the said accident, the deceased Alok Kumar received serious injuries due to which he ultimately died. The Tribunal after taking into consideration the facts of the case as well as evidence lead by the parties had passed an award in the sum of Rs. 77,18,000/ - along with interest at the rate of 7.5% per annum payable from the date of the institution of the petition till the date of realisation. The said order passed by the Tribunal is now under challenge in the present appeal. I have heard learned counsel for the parties at considerable length. Counsel appearing for the respondent has taken a preliminary objection to the very maintainability of the present appeal on the ground that the appellant cannot assail the findings of the Tribunal on the quantum of compensation as determined by the Tribunal. Counsel contends that the appellant had not taken over the defence of the owner and driver as envisaged under Section 170of the Motor Vehicles Act and, therefore, is debarred from challenging the impugned award so as to assail the findings of the Tribunal on the quantum of compensation. Counsel for the respondent has placed reliance on the following judgments of the Apex Court: -

(2.) THE contention of counsel for the respondent is that right to file an appeal is a statutory right and the insurer can assail the findings of the Tribunal under Section 149(2)of the Motor Vehicles Act. Counsel further contends that it is only in a case where there is collusion between the claimants and the insured, the insurer can assail the findings of the Tribunal on the grounds of quantum as well as negligence subject however to the condition that the insurer had taken permission of the Court to take over the defence of the owner or driver as the case may be as envisaged under Section 170of the Motor Vehicles Act. No such permission was granted to the appellant under Section 170of the Motor Vehicles Act by the Tribunal and, therefore, in the absence of the same, the appellant being the insurer of the offending vehicle cannot maintain the present appeal on grounds other than those available to it under Section 149(2)of the Motor Vehicles Act.

(3.) AFTER having given my thoughtful and conscious consideration to the issue involved in the present case, I am of the view that the issue is no more res integra as in catena of judgments cited by the respondent, the Hon'ble Supreme Court has authoritatively held that in the absence of permission given by the Court as envisaged under Section 170of the Motor Vehicles Act, 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 vehicles is concerned. It would be appropriate to refer Section 170of the Motor Vehicles Act as under: - 170. Impleading insurer in certain cases - Where in the course of any inquiry the Claims Tribunal is satisfied that - (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim, It may, 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.