NEW INDIA ASSURANCE CO LTD Vs. SANGAREDDYPETA DURGAIAH

JUDGEMENT

(1.) Since common questions of law arise in all these appeals, they are being disposed of by a common judgment.

(2.) The claimants in all these appeals are either injured or the legal representatives of the persons who died while travelling in a jeep bearing No. AP 23B 2105. They allege that a lorry bearing No. HR12-G A-0265 being driven by its driver at a high speed and in a rash and negligent manner dashed against the jeep in which the victims were travelling. They laid claims for-compensationas against the owner and the insurer of the lorry involved in the accident. In support of their case they examined witnesses and produced documentary evidence. The owner of the lorry remained ex parte. The appellant- insurance company contested the claim petitions putting the claimants to proof of petition averments and taking the plea that it is not liable to pay compensation as the owner and insurer of the jeep, who are necessary parties, are not made parties to the O.P. However, no oral or documentary evidence was adduced on its behalf and admittedly no petitions under Section 170 of the M.V. Act 1988 seeking permission of the Tribunal to take all the pleas open to the owner were filed. The Tribunal, after considering the evidence on record, held that the accident had occurred only on account of rash and negligent driving of the lorry and awarded compensation to the claimants as mentioned in the awards. These appeals are filed questioning those awards not only on the ground that the compensation awarded is on the higher side but also on the ground that the finding arrived at by the Tribunal that the accident had occurred on account of rash and negligent driving of the driver of the lorry is incorrect and improper and that the Tribunal ought to have held that the accident had occurred due to negligence or composite negligence of the driver of both the vehicles involved in the accident.

(3.) At the time of admission of these appeals, when a question arose as to the maintainability, Mr. Kota Subba Rao, the learned counsel for the appellants strongly relying on the observations made by the Supreme Court in British India General Insurance Co. Ltd. v. Captain Itbar Singh contended that the insurer has the right, provided it has reserved it by the policy, to defend the action in the name of the assured and if it does so, all the defences available to the assured can then be urged by the insurer, and since the conditions in the insurance policy taken by the owner of the lorry involved in the accident shows that the insurer did reserve such a right, irrespective of the fact that the appellant did not file petitions under Section 170 of the M.V. Act 1988 before the Tribunal, it has the right to maintain these appeals and contended that since the Supreme Court in National Insurance Co. v. Nikolete did not refer to the above decision of the Supreme Court of a co- ordinate bench, this Court can consider the issue relating to the maintainability of the appeal. He relying on New India Assurance Co. Ltd. v. Chinta Devi and others contended that when a Tribunal permits the insurance company to cross-examine the witness on all aspects, the insurance company is entitled to question the quantum of compensation awarded in an appeal and as such the appeals are maintainable.