NATIONAL INSURANCE COMPANY LTD Vs. LEELA

JUDGEMENT

(1.) Heard both sides. The Insurance Company is the appellant in this appeal. Respondents 1 to 6 filed a petition claiming compensation of Rs. 5 lakhs for the death of one Sivanandan Pillai who died in a road accident on 7-7-1986 at Quilon. He was hit by a scooter KRQ 4574 driven by the Eighth respondent. The Seventh respondent is the owner and the appellant is the insurer of the said scooter. Negligence was alleged against the eighth respondent. Seventh and Eighth respondents filed separate written statements before the Tribunal contending that the Eighth respondent was not negligent in causing the accident and that the accident occurred due to the contributory negligence of the deceased when he attempted to cross the road and that the quantum of compensation claimed is highly excessive. The Insurance Company also while admitting the policy, challenged the quantum. The Tribunal, after finding negligence on the part of the Eighth respondent passed an award for Rs. 3,50,000/- with 12% interest from 27-9-1986 and directed the same to be paid by the appellant

(2.) According to the appellant the award passed by the Tribunal is highly excessive and without any basis. As the Seventh respondent was not cooperative to file a joint appeal inspite of their best efforts the appellant filed the above appeal. According to the Insurance Company there is every reason to believe that the insured is colluding with the claimants at this stage though he had contested the case before the Tribunal. Therefore, it is submitted that the insurance Company is now invoking the right under S.110C(2A) of the Motor Vehicles Act, 1939 to contest the claim on all grounds that are available to the insured. Moreover in the policy issued in respect of the offending vehicle there is a condition reserving the right of the appellant to defend the claim on all or any of the grounds available to the insured. The insurance company infact filed the insurance policy along with C.M.P. 1197/91 at the time of filing the appeal in this Court. It is stated in the affidavit in support of the said petition the policy was not produced before the Tribunal as there was no necessity to invoke the above said condition by the insurance company since the insured had contested the case there. But now he is not cooperating for filing a joint appeal. The Insurance Company is forced to take up the defence on his behalf also. Therefore, it is prayed that the copy of the policy produced along with the C.M.P. may be accepted as additional evidence in this case. We see merit in the submission. Learned counsel for the claimant contended that the Insurance Company ought to have filed this petition and the policy before the lower court and before the Tribunal and having failed to produce a policy before the Tribunal the Insurance Company should not be allowed to produce the policy at this stage in this appeal. We are unable to accept the contention of the counsel for the claimant. The Insurance Company has clearly explained in the affidavit as to the necessity to invoke the condition in the policy by producing the same at the appellate stage since the insured is not cooperating in filing a joint appeal. We find merit in the submission of the Insurance Company. Therefore, we allow C.M.P. 1197/91 and admit copy of the policy as an additional evidence in this case.

(3.) C.M.P. 1198/91 was filed by the Insurance Company along with the appeal to allow the Insurance Company to challenge the award on all grounds that are available to the insured. In view of the order passed in C.M.P. 1197/91 we allow this petition and also permit the Insurance Company to invoke their right under S.110C(2A) of the Motor Vehicles Act, 1939 to contest the claim on all grounds that are available to the insured by filing an appeal. Learned counsel for the Insurance Company in support of this Court reported in New India Assurance Co. Ltd. v. Celine ( 1993 (1) KLT 159 (FB). Learned counsel for the claimant in support of his contention cited British India General Insurance Co. Ltd. v. Captain Itbar Singh & others. ( AIR 1959 SC 1331 ). We have gone through the said decision. The Supreme Court in that case held that the defence referred to in S.96(2) which the Insurance Company take, were exhaustive and no more defence could be added thereto unless such a right was reserved. In the instant case, the Insurance Company had specifically reserved their right in the Insurance Policy. Condition No. 2 of the Insurance Policy reads as follows: