Hon'ble Devendra Kumar Arora,J.
Case called. None appears for the appellant. Mohd. Haneef learned counsel for the claimants respondents is present. The appeal is dismissed for not-prosecution.
The interim order is vacated. The amount deposited in this Court, shall be remitted to the Tribunal which shall be released in favour of the claimants respondents. The Tribunal may proceed in accordance with the Award.
Order Date :- 3.2.2010 Rajneesh)
1. Before signing the above order, learned counsel for the appellant appeared.
2. Heard the learned counsel for the appellant and learned counsel for the claimants respondents.
3. This is an appeal filed under Section 173 of the Motor Vehicle Act, 1988 (In short 'the Act') against the award of Motor Accident Claims Tribunal. Learned counsel for the appellant has assailed the impugned award on various grounds.
4. However, learned counsel for the respondents has raised a preliminary objection that the present appeal is not maintainable as no permission under Section 170 of the Act was obtained from the learned Tribunal.
5. To the preliminary objection raised by the learned counsel for the respondents, learned counsel for the appellant submitted [2] that he has assailed the impugned award on various grounds and for those permission is not required.
6. We have heard learned counsel for the parties at length and perused the record. Learned counsel for the respondents has relied upon the judgment of the Hon'ble Supreme Court reported in 2003(3) T.A.C. 293 (S.C.); National Insurance Co. Ltd. vs. Nicolletta Rohtagi and others. In the case of Necolletta Rohtagi (supra), Hon'ble Supreme Court has reiterated the law that appeal being creation of statute, it can be filed only on the grounds mentioned in the statute. Hon'ble Supreme Court held that the appeal shall be maintainable only on other grounds specified in Section 149 (2) of the Act subject to fulfilment of the conditions specified in Section 170 of the Act. The relevant portion from the judgment of Nicolletta Rohtagi (supra) is reproduced as under:-
"16. For the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in sub-section (2) of Section 149 of 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds.
19. In Shankarayya and another vs. United India Insurance Co. Ltd. and another 1998 (3) SCC 140, it was held that an insurance company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.
25. We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tort feasors who are the insured and the driver of [3] the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.
26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a ) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless 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. Thus where conditions precedent embodied in Section 170 is satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one Scheme and if we give any different interpretation to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act.
27. This matter may be examined from another angle. The right of appeal is not an inherent right or common law right, but it is a statutory right. If the law provides that an appeal can be filed on limited grounds, the grounds of challenge cannot [4] be enlarged on the premise that the insured or the persons against whom a claim has been made has not filed any appeal. Section 149 (2) of 1988 Act limits the insurer's appeal on those enumerated grounds and the appeal being a product of the statute, it is not open to an insurer to take any other plea other than those provided in Section 149(2) of 1988 Act..................
29. For the aforesaid reasons, as well as that the learned Judges in United India Insurance Co. Ltd. (supra) have failed to notice the limited grounds available to an insurer under Section 149(2) of the Act, we are of the view that the decision in United India Insurance (supra) does not lay down the correct view of law.
31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act is 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 and, further, the tribunal does not implead the insurance company to contest the claim in such cases it is open to an insurer 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 an 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-sections (2) of Section 149 of 1988 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 award."
7. In view of settled proposition of law, the insurer company may file an appeal only on the ground enumerated in Section 149 (2) of the Act. Hon'ble Supreme Court had not enlarged the scope of the appeal; rather confined the scope of appeal to the grounds [5] enumerated in Section 149 (2) of the Act.
8. Accordingly, the submission of the appellant's counsel while pressing the appeal raising various grounds does not seem to be sustainable.
9. In the case of Nicolletta Rohtagi (supra) for the filing of the appeal by the insurer it has been specifically ruled by the Hon'ble Supreme Court that it shall be necessary to obtain permission in writing from the learned Tribunal but admittedly same has not been obtained by the appellant in the present case. There is no exception or gallery to permit the insurer to prefer an appeal without having permission in writing from the learned tribunal.
10. In view of above, since no permission was obtained by the appellant (before approaching this Court) under Section 170 of the Act, the present F.A.F.O is not maintainable. Accordingly, appeal is dismissed.
11. Amount, if any, deposited in this Court shall be remitted to the Motor Accident Claims Tribunal concerned forthwith by the Registry for further action in accordance to law.
12. However, it has been stated that there is certain correction in mathematical calculation in the impugned award. In case, it is so, it shall be open to the appellant to move appropriate application for correction of award before the Tribunal. Order Date :- 3.2.2010 Rajneesh)