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FA/4416/1996 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4416 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?NO
2
To be
referred to the Reporter or not ?NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
SURESHCHANDRA
MAULCHAND MENWANI & 1 - Appellant(s)
Versus
RATANBEN
WD/O KALABHAI RAMABHAI & 7 - Defendant(s)
========================================================= Appearance
:
MR
SANDIP C SHAH for
Appellant(s) : 1 - 2.
MR HRIDAY BUCH for Defendant(s) : 1 - 7. -
for Defendant(s) :
8,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 14/07/2008
ORAL
JUDGMENT
Heard
learned Advocate Mr. Sandeep Shah for the appellants and learned Advocate Mr. Hriday Buch on behalf of the respondents claimants. Present appeal is filed by the appellant no.1 Sureshchandra Mulchand Menwani, owner and the New India Assurance Company Ltd., Insurance Company, jointly, challenging the award passed by the Motor Accident claims Tribunal (Auxi.) Ahmedabad at Mirzapur in MACP No. 421 of 1987 dated 11th July, 1996. The Claims Tribunal has directed the opponents no.1 to 3 jointly and severally to pay to the claimants an amount of Rs.2,95,000.00 as compensation along with interest at the rate of 12 per cent per annum from the date of claim petition till realisation and cost on that amount while clarifying that the amount, if any, paid as interim compensation be given credit of.
Brief
facts of the present case are to the effect that the deceased Kalabhai Ramabhai was serving as Police Constable. On 30.1.86, the deceased Kalabhai Ramabhai was on duty on Ahmedabad Kheda Highway road and at that time, the opponent No.1 namely Chandraprakash Mulchand Nenwani who was driving the truck No. GRT 4852 of ownership of the opponent no. 2 by his rash and negligent driving, dashed truck with constable Kalabhai Ramabhai and in the said accident, deceased Kalabhai Ramabhai had received serious injuries and succumbed to the injuries received by him. It was the case of the claimants that at the time of accident, the deceased Kalabhai Ramabhai was drawing salary of Rs.1100.00 and was maintaining them from the salary and by untimely death of the deceased Kalabhai Ramabhai, they are left destitute. Based on the aforesaid facs, claim petition was filed by the
claimants before the claims tribunal claiming compensation of Rs.3,50,600.00. Opponent No.1 was driving the truck of the ownership of opponent no.2 and duly insured with the opponent NO.3. The claim petition was resisted only by the opponent no.3 by filing its written statement at Exh. 17.
It
is necessary to note that the driver of the truck involved in the accident was not examined by the opponents before the claims tribunal. Therefore, adverse inference was drawn by the claims tribunal against the opponents. On the basis of the oral evidence of witness Harishchandra Devram Pawar at Exh. 40 and documentary evidence vide Exh. 26, 27, 28, respondents claimants were successful in proving that the driver of the truck No. GRT 4852 in rash and negligent manner and thereby caused death of the deceased Kalabhai Ramabhai and accordingly issue no.1 was decided in the affirmative.
Learned
Advocate Mr. Sandeep Shah for the appellants submitted that the owner had filed only appearance in the proceedings before the claims tribunal and no written statement was filed by him. Similarly, no written statement was filed by the driver before the claims tribunal, meaning thereby, the claim petition filed by the claimants before the claims tribunal was not contested by the driver and owner. Learned Advocate Mr. Sandeep Shah for the appellants also admitted on the basis of the original record that the permission under section 170 of the Motor Vehicles Act, 1988 was not obtained by the Insurance Company to challenge for negligence and quantum. Therefore, in absence of the permission under section 170 of the Motor Vehicles Act, 1988, the insurance company is not entitled to challenge the award so far as it is relates to negligence and quantum. The owner had filed mere appearance but thereafter, had not filed written statement and not contested the claim petition. Similarly, driver had also not contested the claim petition before the claims tribunal. Therefore, learned advocate Mr. Hriday Buch for the claimants submitted that in absence of permission under section 170 of the Motor Vehicles Act, 1988, insurance company is not entitled to challenge the award in respect of negligence and quantum. He also raised contention that the joint appeal filed by the owner and insurance company is not maintainable. He relied upon the decision of the apex court in case of CHINNAMA GEORGE AND OTHERS VERSUS NK RAJU AND ANOTHER reported in (2000) 4 SCC 130 = AIR 2000 SC 1565 wherein it was held by the apex court that the insurance company's joint appeal with the owner or driver of motor vehicle is also incompetent unless one of the grounds under section 149(2) of the Motor Vehicles Act, 1988 is available to it. Relevant observations made by the apex court in para 8, 9 and 10 of the said judgment are reproduced as under:
?S8. If
none of the conditions as contained in sub section (2) of section 149 exist for the insurer to avoid the policy of insurance, he is legally bound to satisfy the award. He cannot be a person aggrieved by the award. In that case, the insurer will be barred from filing any appeal against the award of the Claims Tribunal.
9.
The question that arises for consideration is : can the insurer join the owner or the driver in filing the appeal against the award of the Claims Tribunal as driver or owner would be the person aggrieved as held by this Court in Narendra Kumar v. Yarenissa, (1998) 9 SCC 202? This Court has held that appeal would be maintainable by the driver or the owner and not by the insurer and, thus, a joint appeal when filed could be maintainable by the driver or the owner. This is how the Court held:-
"For
the reasons stated above, we are of the opinion that even in the case of a joint appeal by insurer and owner of offending vehicle if an award has been made against the tortfeasors as well as the insurer even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause-title is suitably amended by deleting the name of the insurer."
10.
There is no dispute with the proposition so laid by this Court. But the insurer cannot maintain a joint appal along with the owner or the driver if defence on any ground under Section 149(2) is not available to it. In that situation joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of the appellants. The appellate Court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken in the pleadings and was pressed before the Tribunal. On the appellate Court being so satisfied the appeal may be entertained for examination of the correctness of otherwise of the judgment of the tribunal on the question arising from/relating to such defence taken by the insurer. If the appellate Court is not satisfied that any such question was raised by the insurer in the pleadings and/or was pressed before the Tribunal the appeal filed by the insurer has to be dismissed as not maintainable. The Court should take care to ascertain this position on proper consideration so that the statutory bar against the insurer in a proceeding of claim of compensation is not rendered irrelevant by the subterfuge of the insurance company joining the insured as a co-appellant in the appeal filed by it. This position is clear on a harmonious reading of the statutory provisions in Sections 147, 149 and 173 of the Act. Any other intrpretation will defeat the provision of sub-section (2) of Section 149 of the act and throw the legal representatives of the deceased or the injured in the accident to unnecessary prolonged litigation at the instance of the insurer.??
Said
decision of the apex court is considered by the Division Bench of this Court in First Appeal No. 6503 of 1998 with Cross Objection No. 312 of 2001 in First Appeal No. 6503 of 1998 on 16.4.2008, in the matter of Oriental Insurance Co. Ltd. Versus Alpaben WD/O. Jigishaben N. Dalal. Para 4.1 and 4.2 of the said judgment are reproduced as under:
?S4.1 It
is clear from the memo of appeal that no plea of defence under Section 149 of the Motor Vehicles Act, 1988 (?Sthe Act?? for short) is taken or is available to the Insurer ? appellant No.1 of the truck and, therefore, in light of the decision in the case of Chinnama George and others V/s N.K.Raju and another 2000 ACJ 777, such joint appeal would not be competent and, therefore, not maintainable. It also appears from the record that before the Tribunal, the Driver and Owner of the truck did not contest the application. They did not file any written statement challenging the claim petition. The claim was opposed only by opponent No.1 (appellant No.1) Insurer of the truck.
4.2. It
also appears that the Insurer did not prefer any application under Section 170 of the Act claiming wider defence. In this set of circumstances and in light of the decision in the case of United India Insurance Co. Ltd. Vs. Hetalbhai C.Bagadia and others, reported in 2000 ACJ 1356, the appeal by the Insurer would not be competent either. ?S
Third
decision referred to and relied upon by him is ORIENTAL INSURANCE CO. LTD. V. MANJULABEN JAYANTIBHAI PATEL & ORS. reported in 2003 (3) GLR page 2018 wherein it has been held by the Division Bench of this Court as under in para 10 and 11:
?S10. Having
carefully heard the learned counsel for the parties and having carefully gone through the decision in National Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors., 2002 (7) SCC 456, we find considerable substance in the submissions made on behalf of the original claimants that the present appeals filed by the Insurance Company for challenging the award by assailing the finding of negligence and the finding on the quantum of compensation are not maintainable because the larger Bench of the Apex Court has already held in National Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors. (supra) as under:-
"(u)nless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made."... .... "The view taken in United India Insurance Co. Ltd. vs. Bhushan Sachdeva & others (supra) that a right to contest would also include the right to file an appeal is contrary to well established law that creation of a right to appeal is an Act which requires legislative authority and no Court or Tribunal can confer such right, it being one of limitation or extension of jurisdiction." "(u)nless the conditions precedent specified in Section 170 of the Act are satisfied, an Insurance Company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim, it is open to an insured to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits, in that case it is open to the insurer to file an appeal against the award on merits, if aggrieved. In any case where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of the Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of the award." (emphasis supplied)
11. The aforesaid principles laid down by the Apex Court after analyzing the scheme of the Motor Vehicles Act, 1939 as well as the scheme of the Motor Vehicles Act, 1988 and several decisions make it abundantly clear beyond any pale of controversy that an Insurance Company cannot file an appeal against the award of the Tribunal for challenging the findings of negligence and on quantum of compensation, unless the Insurance Company had made an application before the Tribunal under Section 170 of the Motor Vehicles Act, 1988 and a specific order was made by the Tribunal in writing permitting the insurer to avail the grounds available to an insured or any other person against whom the claim has been made. The decision of the larger Bench in National Insurance Co. Ltd. vs. Nicolletta Rohtagi (supra) has completely concluded the controversy and it is not open to this Court to circumvent the said binding decision by culling out any implied permission of the Tribunal in favour of the Insurance Company as is sought to be contended by the learned counsel for the appellant-Insurance Company.??
In
case of United India Insurance Co. Ltd. And another versus Shilpa Jigishbhai alias Jignesh Vyas and others reported in 2005 ACJ 1645, the Division Bench of this Court considered this aspect and observed as under in para 4 of the judgment:
?S4. In
National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others, AIR 2002 SC 3350, the apex court has overruled the decision in United India Assurance Co.Ltd. versus Bhushan Sachdev reported in 2002 ACJ page 333, referred to by Mr. Nanavati. [See New India Assurance Co.Ltd. v. Smt. Tara Sundari Phauzdar and others, AIR 2004 Calcutta 1 Full Bench and National Ins. Co. Ltd. v. Challa Bharathamma and others (2004) 8 SCC 517; Chinnamma George and others v. N.K. Raju and another (2000 ACJ 777). Undisputedly, the Insurance Company has not sought permission under section 170 of the MV Act, 1988 to contest the claim on all available grounds, therefore, such challenge without permission under section 170 of the MV Act, 1988 is not permissible. In the present case, the appeal is filed by the Insurance Company challenging quantum which is not available defence under these provisions, therefore, it cannot be raised by the Insurance Company. Owner did not file written statement nor appeared at any stage before the Claims Tribunal to contest the claim petition. Therefore, owner also cannot challenge the award on merits as no contention was raised by the owner before the Claims Tribunal. For these reasons, the appeal filed by the Insurance Co. is not maintainable.[See Oriental Insurance CO. Ltd. versus Manjulaben Jayantibhai Patel and others{2004 ACJ 172 (Gujarat)??
In
view of the above law as discussed by this Court, the facts are also undisputed between the parties. The appellant Insurance Company has not obtained permission under section 170 of the Motor Vehicles Act, 1988 to contest the claim of the respondents on quantum and negligence as available to the insurance company. The owner had appeared but thereafter, not filed any written statement and not contested the claim petition of the claimant. Company is not having permission under section 170 of the Motor Vehicles Act, 1988 to contest the claim of the respondents on quantum and negligence. Therefore, the insurance company is not entitled to challenge the award on negligence and quantum as discussed in the aforesaid decisions. Since the owner has not resisted the claim petition of the claimant before the claims Tribunal,the joint appeal is also not maintainable as decided by this Court in case of Shilpa Jigishbhai alias Jignesh Vyas and others reported in 2005 ACJ 1645 and, therefore, according to my opinion, present appeal is not maintainable.
Apart
from this contention raised by the learned Advocate Mr. Buch, even considering the negligence part which has been found to be proved against the owner of the truck because the driver was not examined by the respondent who was available at the relevant time, who can explain the situation. It was not the case of the opponents before the claims tribunal that it is not possible to examine the driver as it is beyond their control. Therefore, in absence of the examination of the driver before the claims tribunal, the claims tribunal has rightly drawn adverse inference against the opponents. Oral evidence evidence of Harishchandra Devram Pawar at Exh. 40 and documentary evidence vide Exh. 26, 27, 28 was rightly examined and appreciated by the Claims Tribunal and, therefore, findings given by the Claims Tribunal about negligence on the part of the driver of the truck is rightly decided by the Claims Tribunal and in doing so, no error has been committed by the claims tribunal warranting interference of this court in this appeal.
As
regards quantum, deceased was drawing salary of Rs.960.00 at the time of accident, naturally he is entitled for the future prospective income which comes to Rs.3500.00. Tribunal has not considered future income upto the retirement of the victim but means have been taken into account and assessed the income at Rs.2200.00 p.m. and thereafter, considering that the deceased had to maintain family of six children and wife, 1/3rd amount has been deducted towards his personal expenses and dependency benefit would come to Rs.1500.00, annual of which come to Rs.18000.00. Age of the deceased at the time of accident was 40 years, therefore, claims tribunal was right in applying multiplier of 15 and in doing so, no error has been committed by the claims tribunal. Multiplier of 15, looking to the age of the deceased 40 years at the time of accident, is not on higher side. Income is also rightly assessed by the Claims Tribunal because at the time of retirement, he would be entitled for Rs.3500.00 but the tribunal has not taken into consideration the future prospective income upto the date of retirement of the deceased but only Rs.2200.00 has been taken into account which is reasonable figure fixed by the claims tribunal. For deciding dependency benefit, 1/3rd has been deducted from the income of the deceased, therefore, according to my opinion, even otherwise, tribunal was right in awarding the compensation and the compensation awarded by the claims tribunal is just and reasonable compensation which cannot be considered to be based on whims and arbitrariness. The Claims Tribunal has also rightly awarded Rs.20,000.00 towards loss of expectation of life considering the age of the widow 38 years at the time of accident. Tribunal has rightly awarded Rs.5000.00 towards consortium and Rs.5000.00 for funeral expenses. The Claims Tribunal has rightly examined the matter and applied mind and rightly awarded interest at the rate of 12 per cent per annum while considering the decision of this court in AS Sharma versus Union of India, 1995 ACJ 493 and the decision in case of General Manager, Kerala State Road Transport Corporation versus Mrs.Sushma Thomas, 1994 ACJ 1 and in doing so, no error has been committed by the claims tribunal. Therefore, this appeal fails on both the grounds, one is that the joint appeal of owner and insurance company is not maintainable and insurance company is not having permission under section 170 of the Motor Vehicles Act, 1988 and in absence of such permission, the insurance company is not entitled to challenge the award on quantum and negligence before this Court and the owner has not contested the claim of the claimant after appearing before the claims tribunal and, therefore, even the owner is also not entitled to file appeal and, therefore, on merits as well as on law, this appeal fails and the same is required to be dismissed.
Accordingly,
for the reasons recorded above, this appeal is dismissed. Amount deposited by the insurance company before the claims tribunal and invested by the claims tribunal shall have to be disbursed with interest accrued thereon, if any, to the respondents-claimants immediately and without any delay.
(H.K.
Rathod,J.)
Vyas
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