ORIENTAL INSURANCE COMPANY LIMITED Vs. GURDIAL SINGH

JUDGEMENT

(1.) By consent of the parties the appeal is treated as on day's list and both the appeal and the application are taken up together for hearing.The instant appeal is preferred by the Oriental Insurance Company Limited against an award passed by the Motor Accidents Claims Tribunal, 5th Court, Alipore, South 24-Parganas. The respondent has raised the question of maintainability of this appeal in view of the fact since the conditions under Section 170 have not been complied with by the Tribunal according to him. Section 170 of the Motor Vehicles Act, 1988 is set out hereinbelow :

(2.) It is not in dispute that there is no collusion in terms of Section 170(a) of the Act. It is also not in dispute that the Insurance Company has not taken any statutory defence under Section 149 of the Act. The question, therefore, arises if Section 170(b)has been complied with. It is on record that the Insurance Company did not record any reasons in writing directing the persons against whom, i.e. the owner of the vehicle against whom the claim made has failed to contest the claim, but the insurer shall be impleaded by reasons to be recorded in writing without prejudice to the provisions contained in sub-section (2) of Section 149 of the Act, the right to contest the claim on all or any of the grounds that are available to the persons against whom the claim is made. In support of his contention that the appeal is not maintainable, learned advocate. Mr. Banik, has relied upon the judgment and decision of the Supreme Court in 1998 (2) TAC 379 (SC) : AIR 1998 SC 2968. Relying upon the said decision, the learned advocate for the respondent has urged that the appeal is not maintainable since no specific order has been passed recording the Insurance Company to be impleaded. He has further urged that it is necessary for the Insurance Company to obtain an order from the Tribunal by moving an application to that effect and the Insurance Company has failed to do so. The learned advocate for the appellant, however, has submitted that it is not necessary for the Insurance Company to move any application if there is any default on the part of the tribunal and for that the Insurance Company should not suffer. It is not in dispute, however, that no application has been moved and no order has been recorded impleading the Insurance Company as is required in terms of Section 170. Under similar circumstances, we are of the view that the Supreme Court in Shankarayya v. United India Insurance Co. Ltd. reported in 1998 (2) TAC 379 : (AIR 1998 SC 2968) has accepted the contention of the claimant. The relevant decision of the Supreme Court is set out hereinbelow :-Para 3 - Learned Counsel for the appellants was right when she contended that as the first respondent Insurance Company did not move under Section 170 of the Motor Vehicles Act, it was not entitled to challenge the compensation on merits and only statutory defence was available to the Insurance Company. It is true that respondent No. 1 was allowed to contest on merits despite not following the procedure laid down under Section 170 of the Act and as a result the compensation claim of Rs. 2 ,60,000/- was not granted in full and only Rs. 1,05,000/- was granted to the claimants. To that extent on the contest of the Insurance Company on merits this much benefit was made available to the Insurance Company and that of course, could not be gone behind by the claimants as the claimants were satisfied with the award of the Tribunal not decreeing their full claim. Therefore, the only contest in the appeal was by the Insurance Company which wanted the award of the Tribunal to be further reduced and that is exactly what the High Court has done. In our view, the Insurance Company was clearly incompetent to file an appeal on the merits of the claim before the High Court. In this connection, we may profitably refer to Section 170 of the Motor Vehicles Act, 1988, which reads as under.

(3.) We are of the view that the aforesaid decision of the Supreme Court clearly applies to the fact of the instant case and the Insurance Company should have moved the Tribunal and obtained an order as indicated in the aforesaid judgment of the Supreme Court. The failure of the Insurance Company to obtain an order in terms of Section 170 makes the appeal fatal and accordingly, following the aforesaid decision of the Supreme Court we hold that the appeal is not maintainable and accordingly the same is dismissed.