NEW INDIA ASSURANCE CO LIMITED Vs. D KAMALAM

JUDGEMENT

(1.) THESE appeals have been preferred by the New India Assurance Limited against the common award of the Motor Accidents Claims Tribunal (District Ramanatha-puram at Madurai, in M.C.O.P.Nos.481 and 480 of 1988 respectively. stated, the circumstances giving rise to these appeals are as follows:The first respondent both the appeals is the widow of R.Durairaj. Respondents 2 to 4 in C.M.A.No.313 of 1991 the sons of R.Durairaj and the first respondent in these appeals. The second respondent C.M.A.No.312 of 1991, who is also the fifth respondent in C.M.ANo.313 of 1991, is the of the lorry bearing registration No.MDA.6672, insured with the Oriental Insurance Company Limited, which is the fourth respondent in C.M.A.No.312 of 1991 the seventh respondent in C.M.A.No.313 of 1991. The third respondent in C.M.A.No.312 1991, who is the sixth respondent in C.M.A.No.313 of 1991, is the owner of the car registration No.TNU 5580, insured with the appellant in these appeals. On 11.3.1988, R.Durairaj with his wife, sons, uncle and other relations was proceeding in the car TNU belonging to his uncle I.Masilamani Nadar from Virudhunagar towards Sivakasi. When car was just approaching Virudhunagar bye-pass road, the lorry MDA 6672 proceeding Sattur towards Madurai, according to the case of the first respondent and respondent in C.M.A.No.312 and 313 of 1991, was driven rashly and negligently by its driver and against the car TNU 5580 on its left side. It was also alleged that the driver of the car 5580 had driven the car in a rash and negligent manner without observing the traffic and the accident took place as a result of the rash and negligent driving of both the vehicles. In that accident, R.Durairaj died and his wife Kamalam, who is the first respondent in appeals, sustained some injuries. In M.C.O.P.No.480 of 1988 respondents 1 to C.M.A.No.313 of 1991 claimed that the accident in which R.Durairaj lost his life was outcome of the rash and negligent driving of both the vehicles and that deceased R.Durairaj, who was aged about 57 years at the time of his death, commanded a large and lucrative practice as an Auditor and owing to his sudden death, respondents 1 to 4 in C.M.A.No.313 1991 had lost the benefit of not only the earnings of deceased R.Durairaj for at least years, but had also suffered severe shock and agony resulting in loss of consortium wife and total loss of prospects to the sons of the deceased regarding their future profession. Towards compensation for loss of expectation of life and future loss of and future happiness etc., loss of consortium, mental shock and agony and loss status and future prospects, etc., respondents 1 to 4 in C.M.ANo.313 of 1991 claimed compensation in a sum of Rs.10,00,000 would be awardable, though they restricted claim to Rs.7,00,000. The first respondent in C.M.A.No.312 of 1991,who sustained the very same accident, prayed in M.C.O.P.No.481 of 1988 that she should be awarded sum of Rs.50,000 as compensation for the injuries sustained by her, pain and permanent disability resulting in her not being able to do household duties and participate Badminton tournaments etc.

(2.) IN the counter filed by the appellant in M.C.O.P.No.480 of 1988, it pleaded that the of the lorry bearing registration No.MDA 6672 drove the vehicle in a reckless manner sounding the horn and observing the traffic rules and had entered the road junction Virudhunagar bye-pass road without noticing the vehicle coming from his right side Virudhunagar-Sivakasi road and the accident had taken place only owing to the negligent driving of the lorry MDA 6672. Besides, the appellant also raised some regarding the quantum of compensation claimed by respondents 1 to 4 in C.M.A.No.313 1991. Likewise, the appellant, in his counter in M.C.O.P.No.481 of 1988, reiterated lorry bearing registration No.MDA 6672 was exclusively responsible for the accident rash and negligent driving of its driver and that the compensation prayed for in respect the injuries and disability at Rs.50,000 was on the high side.

(3.) UNDER Sec.96(2) and (6) of the Act an insurer, who has notice through Court either of bringing of the proceedings claiming compensation or in respect of any judgment, is entitled to be made a party to the proceedings and to defend the proceedings on all or any one of grounds enumerated under Sec.96(2) of the Act, Sub-sec.6(9). Sec.96 of the Act precludes the insurer from avoiding liability otherwise than in the manner provided for in Sub It has already been noticed that in this case, in the course of the proceedings before Tribunal, the appellant-insurance company did not at all put forward any defence, which, permitted to put forward under Sec.96(2) of the Act. It would be useful in this connection refer to British India General Insurance Company Limited v. Captain Itbar Singh, (1960)1 M.L.J. (S.C.) 6: (1960)1 An.W.R. (S.C.)6: 1960 S.C.J. 149: (1960)1 S.C.R. 168: A.I.R. S.C. 1331. Though that decision had been rendered by the Supreme Court in appeals arising out of suits for damages, Sec.96(2) of the Act employs language like 'Court ''Judgment and the decision would, therefore, apply not only to suits for damages in civil courts, but to the proceedings before the Motor Accidents Claims Tribunals constituted under Sec.110 the Act for adjudicating claims for compensation. The Supreme Court, in the decision referred to earlier, points out that apart from statute an insurer has no right to be made a party to action by an injured person against the insured causing the injury and that though a right be made a party to a proceeding and defend it is conferred under Sec.96(2) of the Act, such a right is essentially a creature of statute and the content of that right depends on provisions of the statute. Interpreting the scope of Sec.96(2) and (6) of the Act, Supreme Court further pointed out that an insurer is entitled to defend an action on any the grounds enumerated and no others and if it was the intention that other grounds would be available, there was no need for enumeration and when specific grounds of defence have been set out, that cannot be added to and to do that, would be adding words to the statute. Referring to Sec.96(6) of the Act, the Supreme Court laid down that it indicated how Sec.96 (2) of the Act should be read and pointed out that it should be read in such a manner laying down that the insurer cannot avoid his liability, except by establishing such defences provided for under Sub-sec.(2) of Sec.96 of the Act and Sub-sec.(6) contemplated defences not mentioned in Sub-sec.(2) cannot be taken as otherwise, the insurance company could avoid its liability in a manner other than that provided for in sub which, stood prohibited by Sub-sec.(6). Ultimately, the Supreme Court laid down that insurer made a party to the action, is not entitled to take any defence, which is not specified in Sec.96(2) of the Act. Applying the aforesaid principle to the case on hand, it is seen the appellant did not at all raise any defence appropriately falling under Sec.96(2) of the and if the defences permitted under the provisions of the Act have not been so raised the raising of other defences is also prohibited under Sec.96(2) of the Act, then, we do see how the appellant can now be permitted to raise any objection with reference to findings of Tribunal on the questions of negligence and quantum of compensation. It is true that under Sec.110-D of the Act, any person aggrieved by an award of a claims tribunal may prefer an appeal, but, with reference to the insurance company, it must be an aggrieved person in the context of an adjudication relating to the right to contest on all or any of grounds conferred under Sec.96(2) of the Act and not in cases like this, where, the appellant had not raised any defence at all under Sec.96(2) of the Act. To permit an appeal under Sec.110-D of the act, even in cases where no defence under Sec.96(2) of the Act is raised, would be to nullify Sec.96(6) of the Act and also to enlarge the scope of a defence, which, otherwise is restricted to cases felling under Sec.96(2) of the Act. Perhaps, realizing difficulty, learned counsel resorted to Sec.110-C (2-A) of the Act.