ORIENTAL INSURANCE CO. LTD Vs. DEVRAM PANDURANG WAGHMARE

JUDGEMENT

(1.) Heard the Advocates appearing for the parties. Preliminary objection is raised by the learned Advocate appearing for the respondent No. 1 that the appeal at the instance of the appellant-Insurance Company is not maintainable in view of the decision of the Apex Court in the case of National Insurance Co. Ltd. v. Nicolleta Rohtagi, 2002 Supp2 SCR 456.

(2.) The appeal is preferred by the appellant-Insurance Company for challenging the judgment and award made in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988. Admittedly, the appellant was not granted a leave under Section 170 of the Motor Vehicles Act, 1988 and there is no defence raised which is covered by Sub-section (2) of Section 149 of the said Act of 1988.

(3.) Mr. Vidyarthi appearing for the appellant placed reliance on decision of the Apex Court British India General Insurance Co. Ltd v. Captain Itbar Singh and Ors.,1958 65 ACJ 1 and submitted that in the contract of insurance itself a right is reserved in favour of the appellant-Insurance Company to defend the action against the insured on all defences available to the insured. He, therefore, urged that the right of the insurer to prefer an appeal cannot be restricted. He submitted that in the case of National Insurance Co. v. Nicolleta, this decision of the Apex Court which is of a Larger Bench consisting the three Hon'ble Judges was not considered.