NEW INDIA ASSURANCE CO LTD Vs. LALAWATI CHOUHAN

JUDGEMENT

(1.) An application was filed being Misc. Case No. 71/2002 with a prayer to convert this appeal under Section 173 of the Motor Vehicles Act, 1988 to an application under Article 226 read with Article 227 of the Constitution of India in view of the Full Bench judgment of this court reported in 1992(2) GLR 391 (United India Insurance Co. Ltd. -vs- Member, Motor Accident Claims Tribunal, Lakhimpur and ors) and the Supreme Court judgment in (2000) 4 SCC 130 (Chinnama George and ors. Vs. NK Raju and anr.) where in paragraph 6, the Supreme Court pointed out as follows :- "Under Section 149 of the Motor Vehicles Act, 1988 it is the duty of the insurer to satisfy the award against the person insured in respect of third party risks. It is not that the liability of the insurer in the present case is being disputed. The insurer can defend the proceedings before the Claims Tribunal on certain limited grounds. Admittedly, none of the grounds as given in sub-section (2) of Section 149 exist for the insurer to defend the claims petition. That being so, no right existed in the insurer to file appeal against the award of the Claims Tribunal. However, by adding N the owner as co- appellant, an appeal was filed in the High Court which led to the impugned judgment. The impugned judgment does not reflect any grievance of the owner or even that of the driver of the offending bus against the award of the Claims Tribunal. The insurer by associating the owner or the driver in the appeal when the owner or the driver is not an aggrieved person cannot be allowed to mock at the law which prohibits the insurer from filing any appeal except on the limited grounds on which it could defend the claims petition.

(2.) That being the position of law as settled by the latest decision of the Supreme Court, we hold that there is no need convert this appeal to an application under Article 226/227 of the Constitution of India and we have decided to hear this appeal itself.

(3.) The only grounds urged in the memo of appeal is that (i) the award is unjust and on the higherside and (ii) that the award is arbitrary. Mr. Dutta, learned Advocate for the appellant at the time of argument elaborates these grounds and urges that determination of compensation was unjust as because, the learned Tribunal took into consideration the future prospect and loss of retiral benefit etc. which are not factors to be taken into consideration in deciding the quantum of compensation under the Motor Vehicles Act. He also submits that the amount granted for the loss of future provident fund, gratuity etc. and loss of love and affection is also on the higher side. On the other hand, Mr. Mahanta, learned Advocate for the respondents submits that the award is just and proper. He further submits that the amount of interest should be @ 12% per annum from the date of application and not @ 6% per annum from the date of the award as awarded by the tribunal. With regard to the grant of interest @ 12% per annum from the date of application Mr. Dutta joins in the issue and submits that the delay in the disposal of the case before the Tribunal was not because of the fault of the insurance company, but because of the delay in disposal of the case by the Tribunal and that liability cannot be thrust on the insurance company.