ORIENTAL INSURANCE CO LTD Vs. CHANDRA KALA DEVI

JUDGEMENT

(1.) When this appeal was taken up for hearing under Order XLI, rule 11 of the Code of Civil Procedure (in short 'the Code'), Mr. Shukla-, learned counsel for the claimants-respondents, had taken a preliminary objection regarding maintainability of the appeal in view of the decisions of the Supreme Court in the case of Shankarayya v. United India Insurance Co. Ltd., 1998 ACJ 513 (SC) and in the case of Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC). On such objection being raised counsel for the parties were heard at length for deciding first the question of maintainability of the appeal.

(2.) It was contended by respondents' counsel that admittedly the insurance company did not seek any permission of the Tribunal under section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') for challenging the claim of the respondents on merits and, as such, it is debarred from impugning the award by filing an appeal before this court.

(3.) On the other hand, Mr. Ajay Kumar, learned counsel appearing on behalf of the appellant company, has urged that preliminary objection raised by the respondents has no merit because in the present appeal the appellant neither challenges the award on merits nor the quantum as such but it only attacks the principles evolved by the Tribunal in granting the said compensation. According to him if the insurance company confines its argument only on statutory defence as contemplated under section 149 (2) of the Act, it is not required to take permission as envisaged under section 170. Where the owner, the learned counsel continues, either does not appear to contest the claim or even after filing the written statement does not appear, the insurance company cannot be precluded from agitating the matter in appeal on the ground that the principle adopted by the Claims Tribunal in granting compensation is illegal only because it had not filed an application under section 170 of the Act.