UNITED INDIA INSURANCE COMPANY LIMITED Vs. SHARIFABEN RAZAKBHAI

JUDGEMENT

(1.) (C.A.V.) As all these applications raise common question of law and facts, they are disposed of by this common order and for the same, the learned Advocates have no objection.

(2.) We will refer to the facts of the first Civil Application no.6231/98 here in this order which is identical to the facts of all the other applications.

(3.) By this application, appellants-Insurance Company asks for a permission under Section 170 of the Motor Vehicles Act,1988 ( "M.V. Act" for short) to contest the claim on its own on the grounds that the original owner, insurer and/or driver have not appeared before the Tribunal. Initially a practice prevailed before the Tribunal in the State of Gujarat of affording an opportunity to cross examine the witness and lead necessary evidence on all the defences inclusive of merits to the Insurance Company contended the learned Advocate, and also that permission under Section 170 of the M.V. Act was granted on oral request and to that extent there is a judgment of the Division Bench in the case of Rupabhai Karsanbhai Iyer vs. United India Insurance Co.Ltd.in Civil Application no.1686 of 1992 in First Appeal no.411 of 1992. The Division Bench of this Court consisting of N.B. Patel & K.G.Shah, JJ. by its judgment and order of 30th April, 1992 granted the application of the Insurance Company filed on apprehension that they may be prevented to challenge the impugned award on all grounds holding that this is a case in which though permission was not formally asked for and was not formally granted, it was, for all practical purposes deemed to have been asked for and granted. The learned Judges thereafter considering Section 170 of the Motor Vehicles Act has held that permission can be said to have been impliedly asked for and can be said to have been impliedly granted on the ground of failure of the driver and the owner to contest the claim petition. Mr. Parikh, therefore, has contended that oral permission was sought and Insurance Company was permitted to cross-examine and contest the claim on all the defences including merits. However, now in view of the judgment in the case of Shankarayya & Another vs. United India Insurance Co.Ltd. & Anr., (1998) 3 S.C.C. 140, it is necessary to file an application under Section 170 of the M.V. Act to obtain in writing necessary permission from the Tribunal and the same should be by a reasoned order of the Tribunal. In absence of that procedure being followed, the Insurance Company cannot have a wider defence on merits and the Supreme Court in Shankarayya's case has held that the Insurance Company was not entitled to file appeal on merits of the claim awarded by the Tribunal. As identical situation arises in the present appeals, the applicant-Insurance Company has filed an application under Section 170 of the M.V.Act in each case to permit them to contest the claim on merits. This application is given when the First Appeals are at the admission stage, and therefore, opponents-respondents are not available before the Court to assist the Court. However, their assistance can be dispensed with in the facts and circumstances and the position of law discussed hereinafter.