1.0 This appeal is directed against the judgement and award dated 14.02.2007 passed by Motor Accident Claims Tribunal, ( FTC3), Kachchh at Bhuj in Motor Accident Claim Petition No. 818 of 2002 wherein the Tribunal has awarded a sum of Rs. 2,04,500/ along with interest at the rate of 9% per annum from the date of filing of the main petition till its realization.
2.0 On 27.09.2002 Master Umar Sota was proceeding towards village Nara ( Lakhpat) in Jeep Car No. GJ12K8385 along with his mother. At 13.15 hours, when the car reached near the place of accident, the driver of the jeep car lost control over the jeep. As a result of this, the jeep car turned turtle. Master Umar sustained serious injuries and he succumbed to the same. The claimant therefore, filed the aforesaid claim petition under Section 163A of the Motor Vehicles Act before the Tribunal wherein the aforesaid award came to be passed.
3.0 Learned advocate appearing for the appellantInsurance Company submitted that the Second Schedule is applicable for the compensation since the application is filed under Section 163A of the Motor Vehicles Act. As per schedule the income would come to Rs.255000/ ( Rs. 204000/ + Rs. 51,000/) per annum. 1/3rd of Rs.255000/ would come to Rs. 85000/. Therefore, deducting 1/3rd towards personal and living expenses, the loss of dependency benefit would come to Rs. 1,70,000/. He placed reliance on the decision of the Hon'ble Supreme Court in case of National Insurance Co. Ltd Vs. Gurumallamma and another reported in 2009(9) SCALE 764. He submitted that after adding the amount of Rs.2000/ towards funeral expenses and Rs. 2500/ towards loss to the estate the total amount would come to Rs.1,74,500/. However, the Tribunal has awarded a sum of Rs. 2,04,500/.
4.0 Learned Advocate for the respondent submitted that application under Section 170 filed by the appellant was rejected and therefore, the appeal is not competent. He further submitted that issues being points (iii) to (v) pertaining to the cases where the insurer is only a noticee under section 149(2) and has not been impleaded as a party to the claim proceedings are pending before the Hon’ble Supreme Court as per the decision in the case of United India Insurance Co. Ltd. V. Shila Datta and others, reported in 2011 ACJ 2729, and therefore hearing of the matter may be deferred till a decision is taken by the Apex Court. In support of this contention learned Advocate placed reliance on the decision of this Court in case of Ambalal Manibhai Patel etc. Vs. State of Gujarat and another, reported in AIR 1986 SC 1323. In para 83 it is held as under:
“83. Civil Appeals Nos.1525 and 1526 of 1982 are directed against the order of the Gujarat High Court dismissing the writ petitions filed by the Appellants challenging the constitutionality of section 15 of the Mines and Minerals (Regulations and Development) Act, 1957, and the validity of Notification No.GU81/75/MCR2181/(168)453CHH dated June 18, 1981, and directing the Appellants to approach the Supreme Court as similar matters were pending there. In our opinion, the course adopted by the High Court was not correct. If the High Court thought that the point raised by the Appellants was the same as was pending in this Court, it ought to have stayed the hearing of the writ petitions until this Court disposed of the other matters. As we have, however, held section 15 and the amendments made by the said Notification dated June 18,1981 to be valid and constitutional, both these Appeals are therefore dismissed.”
4.1 In view of the above, he submitted that the hearing of the matter may be deferred.
5.0 However, learned Advocate for the appellant submitted that if an insurance company is a party respondent, it can raise not only those grounds which are available under section 149(2), but also all other grounds that are available to a person against whom a claim is made. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under section 149(2). Learned Advocate for the appellant therefore submitted that in the present case the appellant is not a noticee, but was a party respondent. In support of this contention he has relied upon a decision in the case of United India Insurance Co. Ltd. V. Shila Datta, reported in 2011 ACJ 2729 and submitted the insurance company need not seek permission of the Tribunal under Section 170 and it is entitled to raise all grounds without being restricted to grounds available under section 149(2).
6.0 Heard the learned Advocates for the parties and perused the documents on record. It is required to be noted that this appeal was admitted on 06.07.2007. The order thereof is reproduced as under:
“1. The learned Counsel for the appellant declares before the Court that out of the awarded amount of Rs.2,04,500/ the appellant admits the liability of Rs.1,54,500/ with proportionate interest and the cost and the present appeal is only for that additional liability of Rs.50,000/ with the proportionate interest and the costs.
2. Admit.”
6.1 Thus, it is specifically stated that the appellant admits the liability of Rs.1,54,500/ and the present appeal is filed only for additional liability of Rs.50,000/.
7.0 At this stage it is required to be noted that the respondent has neither made any application for recalling the order dated 06.07.2007 nor was it stated or argued at the relevant point of time that the appeal is not maintainable.
7.1 As regards the question of maintainability of the appeal on the ground that application under section 170 of the Act has been rejected is now answered by the Apex Court in the case of Shila Datta and others (supra). In the said case the Apex Court held as under:
“When an insurer is impleaded as a party respondent to the claim petition, as contrasted from merely being a noticee under section 149(2) of the Motor Vehicles Act, its rights are significantly different. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under section 149(2). But if it is a party respondent, it can raise not only those grounds which are available under section 149(2), but also all other grounds that are available to a person against whom a claim is made. It, therefore, follows that if a claimant impleads the insurer as a party respondent, for whatever reason, then as such respondent, the insurer will be entitled to urge all contentions and grounds which may be available to it.”
7.2 Thus, if the claimant impleads the insurer as a party respondent, the insurer is entitled to urge all contentions and grounds which may be available to it. In the case of Shila Datta (supra), five points were before the Hon’ble Apex Court for its consideration. Point Nos. (i) and (ii) were answered in favour of insurer as stated hereinabove. However, as regards point nos. (iii) to (v) are concerned the Apex Court felt that they require reconsideration by a Larger Bench and accordingly they were referred to a Larger Bench.
7.3 Points (iii) to (v) pertain to the cases where the insurer is only a noticee under section 149(2) and has not been impleaded as a party to the claim proceedings. These points have been referred to Larger Bench and are pending for final decision.
8.0 In the instant case the Insurance Company is not a noticee. The claimant has impleaded the appellant as a party respondent in the claim petition itself. The appellant was permitted to lead evidence before the Tribunal and appeal was filed and admitted before this Court. The contention with regard to nonmaintainability was never raised at the relevant point of time. Therefore, in view of the ratio laid down in the case of Shila Datta (supra), the appellant will be entitled to urge all contentions and grounds which may be available to it.
8.1 As regards the contention that the hearing of the appeal may be deferred till the point nos.(iii) to (v) are decided by the Apex Court is concerned, it is required to be noted that the issues pending before the Apex Court pertain to the cases where the insurer is only a noticee under section 149(2) and has not been impleaded as a party to the claim proceedings. In the present case the appellant is not a noticee. The appellant was impleaded as a party respondent and the appellant had contested the claim petition. Therefore the answer on point nos. (iii) to (v) will have no bearing on the present appeal and therefore there is no force in the contention of the learned Advocate for the Appellant.
8.2 Thus, the appeal is competent and requires to be dealt with on merits.
9.0 In the present, case, Second Schedule is applicable for the compensation since the application was filed under Section 163A of the Motor Vehicles Act. As per schedule the income can be considered at Rs. 2,55,000/ ( Rs. 2,04,000/ + Rs. 51,000/). 1/3rd of Rs. 2,55,000 would come to Rs. 85,000/. Therefore, deducting 1/3rd towards personal and living expenses, the loss of dependency benefit would come to Rs. 1,70,000/. In this regard it is required to be noted that in view of decision f the Hon'ble Supreme Court in case of National Insurance Co. Ltd Vs. Gurumallamma and another reported in 2009(9) SCALE 764, multiplier will not apply. After adding the amount of Rs.2000/towards funeral expenses and Rs. 2500/ towards loss to the estate the total amount would come to Rs.1,74,500/. However, the Tribunal has awarded a sum of Rs. 2,04,0500/.
10.0 In the premises aforesaid, it is held that the claimant is entitled to an amount of Rs. 1,74,500/ by way of compensation. The excess amount of Rs. 30,000/ ( Rs.2,04,500/ Rs.1,74,500/) shall be returned to the Insurance Company. The award of the Tribunal is modified accordingly. Appeal is allowed to the above extent. No costs.
11.0 Before parting it is required to be noted that in majority of the appeals which are coming from Kachchh District disproportionate amount is granted by the learned Tribunal and that too in particular cases. This has been noticed since November 2011 when this Court started taking up First Appeals (arising from Motor Accident Claim Petitions). It may also be pointed out that in one matter notice was issued to the claimant, but it never reached to the concerned claimant.
To curb such practice a serious view is required to be taken by the High Court in such matters.
(K.S.JHAVERI, J.) niru*