NEW INDIA INSURANCE CO LTD Vs. NEELABAI

JUDGEMENT

(1.) This appeal is directed by the non-applicant insurance company and the owner of the vehicle against the award dated 6.9.1997 passed by the Motor Accidents Claims Tribunal, West Nimar, Mandleshwar, in Claim Case No. 66 of 1996. The claimants also filed cross-objections for the enhancement of compensation amount.

(2.) The facts of the case, in brief, are that on 12.5.1996 the deceased Vijay Singh, the husband of applicant No. 1 and father of applicant Nos. 2 to 5 and son of applicant Nos. 6 and 7, was going towards the river along with his son Basant Singh. When they were near the house of Nandu, respondent No. 8 came there driving tractor No. MP 10-2385 attached with trolley No. MP 10-2386 in rash and negligent manner and when he turned it, the wheel of the trolley crushed Vijay Singh, as a result of which he died on the spot. He was Head Cashier in State Bank of Indore, Branch Choli and was receiving salary at Rs. 10,257.20. He was aged about 47 years and had ample chances of promotion. The applicants filed claim case and sought compensation of Rs. 22,00,000 for the death of Vijay Singh. The respondent No. 8 and the appellants resisted the claim. The appellant insurance company, inter alia, pleaded that respondent No. 8, the driver of the tractor had no valid driving licence and the tractor was used for the purpose other than agriculture for which it was insured. Hence, it was not liable to pay compensation. The Tribunal on appreciation of evidence held that the accident occurred due to rash and negligent driving of the tractor-trolley by the respondent No. 8 and it awarded compensation of Rs. 10,84,764. The non-applicants insurance company and the owner filed appeal under section 173 of the Motor Vehicles Act questioning the award of compensation. The claimants filed cross-objections claiming enhancement of compensation amount.

(3.) The appellant insurance company did not obtain leave of the Tribunal under section 170 of the Motor Vehicles Act, 1988 to contest the case on merits on all grounds. The appellant insurance company has got limited defences enumerated under section 149 (2) of the Motor Vehicles Act. Of course, where the Tribunal is satisfied that there was collusion between the claimants and the owner or the person against whom the claim is made, and the latter failed to contest the claim, it could grant leave to the insurer to contest the claim on all grounds that were available against the person against whom the claim was made. This provision is a mandatory provision and without obtaining leave of the Tribunal, the insurance company cannot contest the case on merits on all the grounds which were available to the owner and driver. In this case, there appears no collusion between the owner and the claimants. Under such circumstances, the appellant insurance company cannot be heard on merits. It is true that this appeal has been filed jointly by the insurer and the owner but their Lordships of the Supreme Court in case of Chinnama George v. N.K. Raju, 2000 ACJ 777 (SC), held that joint appeal was not maintainable and, therefore, we dismiss the appeal filed by the appellant insurance company.