NEW INDIA ASSURANCE CO LTD Vs. PADMA DEVI

JUDGEMENT

(1.) ALL the aforesaid appeals have been analogously heard on the common cause. The common cause is that when the claim petitions are being disposed of by the Tribunals keeping the application under section 170 of the Motor vehicles Act, 1988 (hereinafter referred to as 'the Act') pending due to oversight or inadvertent mistake, whether the same will be construed as implied permission by the tribunal to the insurance companies to prefer the appeal or not. It is pertinent to mention here that in New India Assurance co. Ltd. v. Dr. Prem Singh Bhadauria, 2009 ACJ 970 (Allahabad), this Bench has decided the issue by holding a view that no one can be allowed to draw any favourable inference by saying that there is an implied permission in such circumstances. No application either interim or interlocutory or miscellaneous in nature can be treated to be pending when the main cause by way of suit or proceeding is disposed of either way. Non-recording of any such order in any of such applications is a bona fide mistake. No chance can be said to be available for such alleged pendency. In other words, pendency can be couched both ways. It can be said to be implied permission or implied rejection. According to us, when an affirmative order is passed ignoring or refusing the insurance companies plea, particularly in absence of statutory defence under section 149 (2) of the Act, implied permission could not have been couched.

(2.) ACCORDING to us, the appeal is a creature of statute. Therefore, unless statute prescribes to prefer the appeal, an insurer, as a matter of course, cannot prefer the appeal. Insurers have limited independent right to prefer the appeal provided there is a clear violation of section 149 (2) of the act. Even mere raising of such points before the Tribunal will not suffice. But, at the same time insurance companies are not remediless as discussed hereunder. It is to be remembered that an insurer, either running as a public or private company is made to help the people under a beneficial piece of legislation and in the process makes profit out of business but not other way round. If the court starts encouraging the causes of insurers, the mission of creation of statute to give equitable relief to the ultimate sufferer will be frustrated. Therefore, law cannot be read in the manner other than it is written. In national Insurance Co. Ltd. v. Nicolletta rohtagi, 2002 ACJ 1950 (SC), we find the similar ratio in paras 27, 28 and 29 which are quoted hereunder:

(3.) WE have repeatedly followed this well discussed judgment. In such judgment a further question arose with regard to fraud which is not relevant herein. However, it is well-known that fraud and nullity can be raised at any time by any of the parties even in the collateral proceedings. The issue before us is different. According to appellants, when as per the ratio of United india Insurance Co. Ltd. v. Jyotsnaben sudhirbhai Patel, 2003 ACJ 2107 (SC), a reasoned order is required to be passed, even non-passing of any order by the learned Judge is illegal or not. Therefore, the question arose about the reading of section 170 of the Act which is as follows: