NEW INDIA ASSURANCE CO LTD Vs. SHAKUNTALABAI

JUDGEMENT

(1.) A tempo ran over an old man. His pelvis bone was broken to pieces. He remained bed-ridden from the date of accident till he succumbed to his injuries. That is the claimant's case, who are the legal representatives of the deceased. The aged widow and his two sons and three daughters are arrayed as main respondents in this appeal. The appellants are theresome - the insurer, the owner and driver of the offending vehicle. The trio have made a valiant effort to sail in the same boat in this Court with the hope that they may cross the ocean and sink under the boat the liability accrued under the award.

(2.) Two very important questions of law have surfaced in this appeal for my consideration and decision. Therefore, I would like to place on record my appreciation of the assistance received from the counsel on both sides, who had been given time liberally, almost two hours, to argue their respective cases. I have also told them that even as I am dictating the judgement, if anything strikes them, it would be open to them to ventilate the same for my consideration.

(3.) First point first, because it concerns the maintainability of the appeal, Shri J.P. Gupta, who appears for the claimants/respondents, has argued that the first appellant, the insurer, may not be heard as his defences are circumscribed, limited to those inscribed in Sub-S.(2) of S.96 of the Motor Vehicles Act, 1939, for short, the 'Act'. He has seriously contested Shri Dubey's forceful plea that the insurer is "person aggrieved" within the meaning of the term used in S.110-D(1) of the Act. His contention is that the mere fact that an award is passed against the insurer, would not make the insurer a "person aggrieved" unless the insurer could have any grievance permissible under the law. In other words, an "aggrieved person" must have a legally permissible grievance. The statutory provision of S.96(2), according to Shri Gupta, has traced the parameters of the grievances that an insurer can legally ventilate at any stage of a proceeding, initiated under S.110-A of the Act, and nothing beyond that. Reliance is also placed by the counsel on a Bench decision, United India Fire and General Insurance Company v. Gulab Chandra Gupta, AIR 1985 All 44 wherein the question of maintainability of a joint appeal by the insurer and owner of the offending vehicle was agitated. The view taken in that case that the owner and the insurer have different fields of defences is indeed unexceptionable as the provision of S.96(2) is clear and its mandate is exclusive and inexorable. I do not propose still to go the whole hog to endorse the holding in that case that a joint appeal by the insurer and an owner is not maintainable. I would only say that the insurer's appeal can be heard only within the statutory parameters of S.96(2). Even if a joint appeal is filed by an insurer, he shall not be denied hearing. He will be heard only on the defences which are statutorily made available to him.