NATIONAL INSURANCE CO LTD Vs. MADHUSOODHANAN

JUDGEMENT

(1.) This appeal is preferred by National Insurance Company Limited along with one Kaliappa under S.173 of the Motor Vehicles Act, 1988 challenging the award dated 23.6.1998 in O.P. (M.V.) No. 793 of 1994 on the file of the M.A.C. Tribunal, Palakkad. Challenge is against the quantum of compensation fixed by the Tribunal. Tribunal fixed 75% contributory negligence in favour of the second appellant who was the owner of the vehicle. They wanted to fix the entire negligence on the claimants and pleaded that they are not liable to pay the compensation. Accident occurred while respondent claimant's car collided with the lorry driven by the first respondent before the Tribunal of which second appellant herein is the owner and the first appellant is the insurer. The Tribunal fixed the liability at the ratio of 75% : 25% and directed the Insurance Company to pay the amount of Rs. 7,37,500/- and interest at the rate of 12% per annum from 26.4.1994 till date of realisation. Aggrieved by the same this appeal has been preferred by the Insurance Company along with the owner of the vehicle.

(2.) When the matter came up for hearing, counsel appearing for the respondent Smt. Sumathi Dandapani raised a preliminary objection regarding the maintainability of this appeal. Relying on the decision of the Supreme Court in Chinnamma George and Others v. N. K. Raju & Anr. 2000 (2) KLT 155 : ( 2000 (4) SCC 130 ), counsel contended that none of the grounds as given in S.149 existed for the insurer to contest the claim petition before the Tribunal. Consequently no grounds existed for the insurance company to file appeal against the award of the Tribunal. The contended that insurance company is not a person aggrieved by the award. Therefore, it is debarred from filing any appeal against the award of the Claims Tribunal. Further, she contended that Insurance Company has not moved before the Tribunal under S.170 of the Motor Vehicles Act, 1988 and satisfied the conditions laid down therein and got permission to agitate the matter on merits. Therefore insurance company is estopped from raising any contention on the basis of merits in the present appeal.

(3.) Counsel appearing for the appellant submitted that joint appeal is maintainable as per the decision of the Apex Court in Narendrakumar and Another v. Yarennissa and Others ((1998) (9) SCC 202) and the Insurance Company can transpose the owner as respondent and proceed with the appeal. For the said purpose appellant filed C. M. P. No. 2938 of 2001 under O. I, R.10 read with S.151 C.P.C. to strike out the name of the second appellant from the array of parties and add his name as additional 2nd respondent in the appeal in the interest of justice. Appellant also filed another application, C. M. P. No. 2939 of 2001, under S.170 of the Motor Vehicles Act, 1988 seeking permission to raise all or any of the grounds available to the insured in the interest of justice.