ORIENTAL INSURANCE CO. Vs. DWARIKA PRASAD AGARWAL

JUDGEMENT

(1.) THIS appeal has been preferred by the Insurance Company, named and described in the cause -title, against the award of the Claims Tribunal dated 23.3.1993 passed under the provisions of Motor Vehicles Act, 1988. The appeal has been filed assailing the finding of negligence against the driver of the vehicle and on quantum of compensation.

(2.) ON being asked the learned counsel for the Insurance Company could not point out that in the course of proceedings before the Tribunal any permission to defend, the claimant's action was sought from the Tribunal as required by the provisions of section 170 of the Motor Vehicles Act, 1988, for short 'the Act of 1988', corresponding to section 110CC of the Motor Vehicles Act, 1939, for short, 'the Act of 1939'. It is also not disputed that except in contingencies covered by section 170 (supra), the defences open to the Insurance Company are limited to those mentioned in section 149 (2) of the Act of 1988, corresponding to section 96 (2) of the Act of 1939. The limited defences open to the Insurance Company are only based on the terms and conditions of the policy of Insurance. A Division Bench of this Court in the case - United India Insurance Co. Ltd. v. 1995 JLJ 167) has held that in the absence of permission to defend on all grounds under section 170 of the Act of 1988, the Insurance Company cannot appeal on the issues of negligence and quantum. The appeal at the instance of the Insurance Company is, therefore, on the grounds raised on negligence and quantum cannot be heard and the same will have to be dismissed on the above short ground.

(3.) LEARNED counsel appearing for the claimants, who filed cross -objection, in reply rely on the Division Bench decision of Calcutta High Court reported in AIR 1979 Calcutta 152 M/s. Kantilal and Bros. v. Ramarani Debi and others. Reliance is also placed on two old decisions of Allahabad and Madras High Courts reported in (1912) 34 ILR Allaha. 140 Shankar Lal and another v. Sarup Lal& another and (1909) 4 Indian Cases 625 NanakBakhsh v. Wazir Singh and (1898) 12 Madras 35. On the basis of the above decisions the submission made on behalf of the claimants is that in the instant case after hearing the appellant the appeal was held untenable on the grounds of negligence and quantum and it is not a case where the appeal is either withdrawn or dismissed in default as contemplated by Sub -rule (4) to Order 41 Rule 22 of the Code of Civil Procedure, which reads as under: