NEW INDIA ASSURANCE CO LTD Vs. SANJU BEHERA

JUDGEMENT

(1.) The appeal is by the insurance company against the order of the learned 5th Motor Accidents Claims Tribunal, Bhubaneswar, awarding a sum of Rs. 2,65,500 as compensation in favour of the claimants-respondents with interest.

(2.) Mr. P.C. Patnaik, learned counsel for the claimants-respondents has raised the question of maintainability of the appeal on merit at the instance of the insurance company in absence of an order of the Claims Tribunal passed under section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') to contest the award on merits. It is his submission that the appellant insurance company having not moved the learned Tribunal under section 170 of the Act for being impleaded as a party to the proceeding and contesting the same, it cannot challenge the award on merits only because it was impleaded as a party to the claim proceeding by the claimants. The learned counsel argues that the insurance company can only challenge the award of the Tribunal on the grounds as are available under sub-section (2) of section 149 of the Act.

(3.) Mr. S.S. Rao, learned counsel for the appellant insurer, on the other hand, submits that since the insurance company was already impleaded as a party to the claim proceeding before the Tribunal at the instance of the claimants and having contested the same, the bar contemplated under section 149 (2) of the Act does not operate inasmuch as in view of specific clause and the reservation subject to v/hich the policy is granted, it can always challenge the award on merits. In support of his contention, learned counsel has relied on the decision of the Apex Court in Shankarayya v. United India Insurance Co. Ltd., 1998 ACJ 513 (SC); New India Assurance Co. Ltd. v. Sadasiv Misra, 1999 (II) OLR 159; and National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC); and the decision of the Calcutta High Court in United India Insurance Co. Ltd. v. Namita Das, 2001 ACJ 303 (Calcutta). In order to appreciate the submission of learned counsel for the parties, the provision of section 170 of the Act need be noted which reads thus: