N N SWAMINATHAN Vs. PANTHANA NACHIAR

JUDGEMENT

(1.) THIS civil miscellaneous appeal has been preferred by the owner of the insured vehicle as well as by the insurance company against the award of the Tribunal to the tune of Rs. 10,34,128 (rupees ten lakh thirty -four thousand one hundred and twenty -eight) as against the claim of Rs. 18,00,000 (rupees eighteen lakh).

(2.) AT the outset, Mr. Srinivasa Raghavan, learned counsel for the respondents submitted that the appeal preferred by the insurance company is not maintainable in view of the absence of permission from the Tribunal under section 170 of the Motor Vehicles Act and if at all, the owner alone is entitled to maintain this appeal. In support of the aforesaid contentions, he relied upon the judgment of Hon 'ble Apex Court in Asha v. United India Insurance Co. Ltd., (2008) 2 SCC 774 and judgment of this court in National Insurance Co. Ltd. v. T. Murugesan, (2009) 1 TN MAC 160, another judgment in National Insurance Co. Ltd. v. K. Ampujam, (2009) 1 TN MAC 166. In Asha v. United India Insurance Co. Ltd. (supra), the question before the Hon 'ble Apex Court was that whether the joint appeal by the owner and the insurance company on defences not available under section 149 (2) of the Motor Vehicles Act is maintainable or not. The Hon 'ble Apex Court held that the joint appeal is maintainable after deletion of the name of the insurance company. Even otherwise, the insurance company can be transposed as respondent. In the present case, the appeal is made by the owner as well as the insurance company. Relying upon the judgments quoted above, this court transposes the insurance company as respondent No. 4 in this appeal.

(3.) THE insurance company, the transposed respondent No. 4 herein contested the said M.C.O.P. contending that the accident occurred because of the negligence of the deceased and not because of the negligence of the driver of the insured vehicle.