Hon'ble Y.C. Gupta,J.
The present Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (in short "the Act") against the judgment and order / award dated 30.4.2011 passed by the Motor Accidents Claims Tribunal, Meerut in Motor Accident Claim Petition No. 1037 of 2009 filed by the claimant-respondent no. 1 on account of the injuries sustained by him in an accident which took place on 6.7.2009 at about 8.00 A.M..
It was, interalia, averred in the Claim Petition that on 6.7.2009, the claimant-respondent no.1 was coming to Office from his village on Bicycle; and that when at about 8.00 A.M., the claimant-respondent no.1 reached the Bhatta beyond Chhote Hasanpur, a Motor-Cycle bearing Registration No. UP 15 AD 3296 (hereinafter also referred to as "the vehicle in question"), which was being driven by its driver rashly and negligently, hit the Bicycle of the claimant-respondent no.1 from behind, as a result of which, the claimant-respondent no.1 fell down on the road and sustained serious injuries; and that the claimant-respondent no.1 was admitted to various Hospitals and remained under treatment, and he was still undergoing treatment; and that on account of the accident, the claimant-respondent no.1 became permanently disabled ; and that the claimant-respondent no.1 was Class-IV employee in Meerut Office of the U.P. Avas & Vikas Parishad and used to get Rs. 11,000/- per month as salary.
It was, interalia, further averred in the Claim Petition that the respondent no.2 (Sushil Kumar) was the owner of the vehicle in question and the respondent no. 3 ( Suraj Pal Singh) was the driver of the vehicle in question, while the Appellant-Insurance Company was the insurer of the vehicle in question.
The respondent nos. 2 and 3 filed their joint Written Statement denying the averments made in the Claim Petition. It was, interalia, further averred that the vehicle in question was not involved in any accident; and the Driver of the vehicle in question (respondent no.3) was having valid Driving Licence; and that the vehicle in question was insured with the Appellant-Insurance Company for the period with effect from 19.3.2009 to 18.3.2010; and that in case any compensation was held to be payable, liability for payment of the same was entirely on the Appellant-Insurance Company; and that the Claim Petition was liable to be rejected.
The Appellant-Insurance Company filed its Written Statement denying the averments made in the Claim Petition. It was, interalia, further stated that no such accident had occurred on the alleged date, time and place, and if any, the vehicle in question was not involved in the alleged accident. It was, interalia, further stated that the Driver of the vehicle in question was not having effective or valid Driving Licence at the time of the alleged accident; and that the vehicle in question was being driven in contravention of the Motor Vehicles Act, 1988; and that the Appellant-Insurance Company was not liable to pay any amount of compensation.
The Tribunal framed four Issues in the case.
Issue No.1 was regarding factum of the accident having taken place on 6.7.2009 on account of rash and negligent driving by the Driver of the vehicle in question resulting in serious injuries to the claimant-respondent no.1.
Issue No.2 was as to whether the Driver of the vehicle in question was having valid and effective driving licence at the time of the accident.
Issue No.3 was as to whether the vehicle in question was duly insured with the Appellant-Insurance Company at the time of the accident.
Issue No.4 was as to whether the claimant-respondent no.1 was entitled to get any compensation, and if yes, the quantum of such compensation, and against which opposite party in the Claim Petition.
The claimant-respondent no.1 led oral and documentary evidence in support of his case.
The respondent nos. 2 and 3 led documentary evidence in support of their case.
On consideration of the material on record, the Tribunal recorded its findings on various Issues.
As regards Issue No.1, the Tribunal held that the accident in question took place on account of the rash and negligent driving by the Driver of the vehicle in question (i.e. Motor-Cycle), which resulted in serious injuries to the claimant-respondent no.1. Issue No.1 was accordingly decided.
As regards Issue No.2, the Tribunal held that the Driver of the vehicle in question was having valid and effective Driving Licence at the time of the accident in question. Issue No. 2 was decided accordingly.
As regards Issue No.3, the Tribunal held that the vehicle in question was duly insured with the Appellant-Insurance Company for the period with effect from 19.3.2009 to 18.3.2010, while the accident in question occurred on 6.7.2009. Issue No.3 was decided accordingly.
As regards Issue No.4, the Tribunal held that the claimant-respondent no.1 was entitled to get compensation amounting to Rs. 4,94,050/- with interest @ 6% per-annum with effect from the date of presentation of the Claim Petition till the date of actual payment.
On the basis of the above findings, the Tribunal gave the impugned Award awarding Rs. 4,94,050/- as compensation to the claimant-respondent no.1 with interest @ 6% per-annum with effect from the date of presentation of the Claim Petition till the date of actual payment.
The Appellant-Insurance Company has filed the present Appeal against the said Award.
We have heard Shri Komal Mehrotra, learned counsel for the Appellant-Insurance Company, and perused the record filed with the Appeal.
From a perusal of the record, it is evident that an Application under Section 170 of the Act was filed on behalf of the Appellant-Insurance Company. However, by the order dated 25.3.2011, the Tribunal rejected the said application on the ground that Written Statement on behalf of the owner of the vehicle in question (Sushil Kumar - respondent no.2 herein) had already been filed, and the documentary evidence on behalf of the owner of the vehicle in question (Sushil Kumar- respondent no.2 herein) had also been led.
Section 170 of the Act lays down as under :
"170. Impleading insurer in certain cases.- Where in the course of any inquiry, the Claims Tribunal is satisfied that-
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made."
Section 149 of the Act referred to in Section 170 of the said Act is reproduced below:
"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.- (1) If, after a certificate of insurance has been issued under sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 147 (being a liability covered by the terms of the policy) [or under the provisions of Section 163A] is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this Section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.
(3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub-section (1), as if the judgment were given by a Court in India:
Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2).
(4) Where a certificate of insurance has been issued under sub-section (3) of Section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of Section 147, be of no effect:
Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person.
(5) If the amount which an insurer becomes liable under this Section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this Section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.
(6) In this Section the expression "material fact" and "material particular" means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression "liability covered by the terms of the policy" means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy.
(7) No insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.
Explanation.-For the purposes of this section, "Claims Tribunal" means a Claims Tribunal constituted under Section 165 and "award" means an award made by that Tribunal under Section 168."
Reading Sections 170 and 149(2) of the Act together, it is evident that in case the Tribunal grants permission to the insurer under Section 170, the insurer will get right to contest the Claim Petition on all or any of the grounds that are available to the person against whom the claim has been made. However, if such permission is not granted by the Tribunal, then the insurer will be entitled to contest the Claim Petition on the limited grounds mentioned in sub-section (2) of Section 149 of the Act. It follows, therefore, that in case an appeal is filed by the insurer against an award in a case where its application under Section 170 of the Act was rejected by the Tribunal, it (insurer) will be able to challenge the award only on the limited grounds mentioned in sub-section (2) of Section 149 of the said Act.
Reference in this regard may be made to the decision of the Supreme Court in National Insurance Company Limited, Chandigarh Vs. Nicolletta Rohtagi, AIR 2002 SC 3350 (paragraphs 17,26 and 27) = 2002 (7) SCC 456.
The first question to be considered is as to whether the Tribunal was right in passing the order dated 25.3.2011 rejecting the said application under Section 170 of the Act filed on behalf of the Appellant-Insurance Company.
Section 170 of the Act contemplates the following two situations where the insurer may be given, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made:
(a) where there is collusion between the person making the claim and the person against whom the claim is made, or
(b) where the person against whom the claim is made has failed to contest the claim.
In the present case, no collusion has been shown between the claimant-respondent no.1, and the owner of the vehicle in question namely, Sushil Kumar (respondent no.2 herein). Therefore, situation (a), mentioned above, has not been shown to exist in the present case.
As is evident from the record, the said Sushil Kumar (respondent no.2 herein) alongwith Suraj Pal Singh (respondent no.3 herein) filed Written Statement denying the averments made in the Claim Petition. Documentary evidence was also filed on behalf of the said Sushil Kumar (respondent no.2 herein) alongwith the said Suraj Pal Singh (respondent no.3 herein). Cross-examination of the witnesses examined on behalf of the claimant-respondent no.1 was also done on behalf of the opposite parties in the Claim Case. It is evident that the owner of the vehicle in question (Sushil Kumar - respondent no.2 herein), against whom the claim was made, was contesting the Claim Petition. Therefore, situation (b), mentioned above, also does not exist in the present case.
In view of the above, we are of the opinion that the application under Section 170 of the Act, filed on behalf of the Appellant-Insurance Company, was rightly rejected by the order dated 25.3.2011.
The next question to be considered is as to on what grounds, the Appellant-Insurance Company can challenge the impugned Award, and as to whether such challenge is valid.
As noted above, in the present case, the Tribunal rejected the application of the Appellant-Insurance Company for permission under Section 170 of the Act.
In view of the rejection of the said application under Section 170 of the Act, it is evident that the Appellant-Insurance Company can challenge the impugned Award only on the grounds mentioned in sub-section (2) of Section 149 of the Act. Such grounds are evidently in respect of Issue Nos. 2 and 3.
As regards Issue No.2, the Tribunal has recorded finding of fact that at the time of the accident, the Driver of the vehicle in question (Suraj Pal Singh - respondent no.3 herein) was having valid Driving Licence. In this regard, the Tribunal has relied upon the averments made in paragraph 25 of the Written Statement filed on behalf of the respondent nos. 2 and 2 and also the copy of the Driving Licence in respect of the said Suraj Pal Singh brought on record, which showed that the Driving Licence was valid for the period with effect from 14.11.2006 to 13.11.2009, while the accident occurred on 6.7.2009. The Tribunal has further emphasised that neither the Appellant-Insurance Company nor any other opposite party disputed the said Driving Licence brought on record.
As noted above, in regard to Issue No.3, the Tribunal has recorded finding of fact that at the time of the accident, the vehicle in question was duly insured with the Appellant-Insurance Company. In this regard, the Tribunal has relied upon the averments made in paragraph 26 of the Written Statement filed on behalf of the respondent nos. 2 and 3 and also the copy of the Insurance Policy filed on behalf of the said respondents. The Tribunal has pointed out that the copy of the Insurance Policy showed that the venicle in question was insured with the Appellant-Insurance Company for the period with effect from 19.3.2009 to 18.3.2010, while the accident occurred on 6.7.2009. The Tribunal has emphasised that no contrary evidence was given on behalf of the Appellant-Insurance Company or any other party.
Shri Komal Mehrotra, learned counsel for the Appellant-Insurance Company has not been able to show any error or infirmity or illegality in the aforesaid findings recorded by the Tribunal on Issue nos. 2 and 3.
Having perused the record filed with the Appeal, we are of the opinion that the findings recorded by the Tribunal on the aforesaid Issues were correct, and the same do not suffer from any error or infirmity or illegality.
Therefore, we are of the view that the Appellant-Insurance Company has failed to establish any error, infirmity or illegality in the impugned Award on the grounds open to the Appellant-Insurance Company to raise in view of the provisions of sub-section (2) of Section 149 of the Act.
Shri Komal Mehrotra, learned counsel for the Appellant-Insurance Company, submits that the involvement of the vehicle in question in the alleged accident was not established, and the Tribunal erred in deciding Issue No.1.
Shri Komal Mehrotra, learned counsel for the Appellant-Insurance Company further submits that the quantum of compensation as determined by the Tribunal in deciding Issue No.4 is not correct.
In our opinion, as the application of the Appellant-Insurance Company under Section 170 of the Act was rejected by the Tribunal, it is not open to the Appellant-Insurance Company to raise the question of involvement of the vehicle in question in the accident or the question of quantum of compensation awarded by the Tribunal in the impugned Award. The pleas raised in this regard by Shri Komal Mehrotra, learned counsel for the Appellant-Insurance Company, cannot, therefore, be considered.
In view of the above, we are of the opinion that the Appeal filed by the Appellant-Insurance Company lacks merits, and the same is liable to be dismissed.
The Appeal is accordingly dismissed.
However, on the facts and in the circumstances of the case, there will be no order as to costs.
The amount of Rs. 25,000/- deposited by the Appellant-Insurance Company while filing the present Appeal will be remitted to the Tribunal for being adjusted towards the amount payable under the impugned Award.
Dated :23.12.2011 safi