ORIENTAL INSURANCE COMPANY LIMITED Vs. RAM PARKASH

JUDGEMENT

(1.) This is an appeal filed against the Award of Motor Accident Claims Tribunal, Rajouri, by which he has awarded an amount of Rs. 65,000/- as compensation to the respondents.

(2.) I have heard the learned counsel for the parties.

(3.) A preliminary objection has been taken by the counsel for the respondents stating therein that the appeal was not maintainable as only the quantum of compensation has been challenged and the Insurance Company was not within its rights to file an appeal as Insurance Company was not defending the insurer before the Tribunal. He has referred to a Full Bench Judgment of this Court reported in AIR 1982 JandK 105. This judgment while declaring the law has laid down (paras 37 and 38) :- "Where an insurer finds that it has not reserved such a right but that the insured and the claimant have colluded with each other as it is a possibility that cannot be ignored. It is open to an insurer to bring that fact to the notice of the Tribunal and seek its permission under S. 110-C ("A) to contest the claim on all the grounds available to an insured. On being satisfied that there is such a collusion, the Tribunal would grant permission and on such permission being granted, the insurer steps into the shoes of the insured and defends the claim on all available grounds, if the Award goes against the insurer, it can challenge it in appeal also on all such grounds on which it had contended the claim before the Tribunal. Right of appeal against an Award of the Tribunal is the creation of the statute. The Act had confined the right to avoid the liability in the insurer to the injured on certain grounds specified in it. It is not open to this Court to add to those grounds on the plea that hardship would be caused to the insurer. An insurer can avoid any hardship by remaining vigilant during the trial of the claim petition and also by providing in the policy of insurance, for a right to defend the action in the name of the assured and that he had full liberty to do. Where the insurer has failed to do it, he cannot avoid the liability if the insured is found liable.38 The aforesaid discussion leads to the conclusion (1) that an insurer is not entitled to resist the claim or the Award, where the insured has been found liable, on grounds not enumerated under Sec. 96(2) of the Act; (2) where the term of the policy of insurance provides that the insurer has the right to defend the action in the name of the insured the insurer shall have the right to be defend and if he does so, all the defences as are open to the insured can be urged by the insurer both to resist the claim as well as the Award; (3) if it appears that the claimant and the insured have colluded, then after receiving permission of the Tribunal under Sec. 110-C(2A) the insurer can defend the claim as well as the Award on all grounds which are available to the insured; and (4) except for the aforesaid contingencies, an insurer cannot question an Award, in appeal and unless the case of the insurer is covered by (2) or (3) conclusions as noticed above, an insurer cannot, in an appeal against the Award, question the quantum of compensation only."