Hon'ble S.C. Chaurasia,J.
1.Heard learned counsel for the appellant and perused record.
2.Present appeal under Section 173 of Motor Vehicles Act, 1988, has been preferred against the impugned Award dated 24.2.2007, passed by the Motor Accident Claims Tribunal/District Judge, Lakhimpur Kheri in MAC No.19 of 2001 (Smt. Seema Dhal and another. Vs. Shyam Sunder and others).
3.One Jagdish Dhal, son of Nanak Chandra, resident of Punjabi Colony, City Lakhimpur, District Kheri aged about 30 years, was coming on his Scooter No.U.P. 31-A/4625 after visiting Hanuman Temple to his town Lakhimpur. On 30.5.2000, while he was on his way, at about 12:30 P.M. on Lakhimpur-Sitapur Road, near village Saraiya a Truck No.DIL 1359 driven rashly and negligently, hit the scooter. In connection thereof, Jagdish Dhal succumbed to injuries on spot. An FIR was lodged and the dependents of deceased approached the Tribunal. Jagdish Dhal was having business of videography and photography in Lakhimpur Kheri. Smt. Seema Dhal and Master Sagar Dhal filed claim petition before the Tribunal.
4.The Tribunal framed issues with regard to accident in question, insurance cover and driving license etc.
5.Before the Tribunal, Smt. Seema Dhal wife of deceased, appeared as witness and corroborated the relationship and incident occurred on the aforesaid date. PW-2 Munendra Kumar Misra is eyewitness who supported the prosecution version stating that the truck was being driven rashly and negligently and that the deceased was coming towards Lakhimpur Kheri on his Scooter. PW-2 Munendra Kumar Misra stated that on the date of incident i.e., 30.5.2000, he was going from Lakhimpur on his scooter along with one Om Prakash and as soon as they reached near the place of incident, the Truck No.DIL 1359, going towards Hargaon, was being driven rashly and negligently, dashed the deceased Jagdish Dhal on his Scooter and the accident was caused due to rash and negligent driving of the truck.
6.The Tribunal on the basis of statement given by the witness, recorded finding that the deceased was having business of videography and photography and he was having a shop in Lakhimpur Kheri having an income of Rs.5000/- per month. Rs.500/- was deducted by the Tribunal out of Rs.5000/- and assessed monthly income of the deceased as Rs.4,500/- per month. A deduction of Rs.500/- was in lieu of daily expense which the deceased might have incurred while maintaining the shop. One third amount was taken out of Rs.4,500/- in lieu of personal expenses in terms of schedule 2 of the Motor Vehicles Act, 1988 and the compensation was awarded on the basis of net income of Rs.3,000/- per month which comes to Rs.3,23,500/- after addition of funeral expenses Rs.2,000.00, loss of consortium Rs.5,000.00, loss of estate Rs.2,500.00 and damage to Scooter Rs.2,000.00.
7.While assailing the impugned award, it has been submitted by the learned counsel for the appellant that the income assessed by the Tribunal is excessive since no documentary evidence was laid by the claimant respondents before the Tribunal. The argument advanced on behalf of appellant to the extent of documentary evidence is concerned, is correct but for assessment of income in some matters, there may not be documentary evidence, more so, when a citizen does not come within the purview of Income Tax Act. Moreover, it has not been disputed that the deceased was having a shop of videography and photography. The income assessed by the Tribunal to the extent of Rs.4,500.00 from the shop in question, does not seem to be excessive. Even income of small shop owner with regard to videography and photography, may be, more than Rs.4,500.00. Accordingly, submission of the appellant's counsel does not seem to be sustainable.
8.During the course of argument, a preliminary objection has been raised on behalf of claimant respondents that the appeal is not maintainable since it has been preferred on the quantum of compensation. Learned counsel for the claimant respondents relied upon the judgment reported in 2000 (2) T.A.C. 207 SC: Chinnama George and others. Vs. N. K. Raju and another. In the said judgment of Chinnama Goerge (supra), it has been held that under Section 149 of the Act, it shall be the duty of the insurer to satisfy the award against the person insured in respect of third party risks. For convenience, para 5, 6 and 7 of the aforesaid judgment are reproduced as under:
5."Under Section 149 of the Act, it is the duty of the insurer to satisfy the award against the person insured in respect of third party risks. It is not that liability of the insurer in the present case is being disputed. Insurer can defend the proceedings before the Claims Tribunal on certain limited grounds. Sub-sections (1), (2) and (7) of Section 149 of the Act are relevant, which are as under :
"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 judgment.
(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 licenced, 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 non-disclosure of a material fact or by a representation of fact which was false in some material particular.
(3) to (6) ...
(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."
(6)Admittedly, none of the grounds as given in sub-section (2) of Section 149 exist for the insurer to defend the claims petition. That being so, no right existed in the insurer to file appeal against the award of the Claims Tribunal. However, by adding N.K. Raju, the owner as co- appellant, an appeal was filed in the High Court which led to the impugned judgment. None of the grounds on which insurer could defend the claims petition was the subject matter of the appeal as far as the insurer is concerned. We have already noticed above that we have not been able to figure out from the impugned judgment as to how the owner felt aggrieved by the award of the Claims Tribunal. The impugned judgment does not reflect any grievance of the owner or even that of the driver of the offending bus against the award of the Claims Tribunal. The insurer by associating the owner or the driver in the appeal when the owner or the driver is not an aggrieved person cannot be allowed to mock at the law which prohibit the insurer from filing any appeal except on the limited grounds on which it could defend the claims petition. We cannot put our stamp of approval as to the validity of the appeal by the insurer merely by associating the insured. Provision of law cannot be undermined in this way. We have to give effect to the real purpose to the provision of law relating to the award of compensation in respect of the accident arising out of the use of the motor vehicles and cannot permit the insurer to give him right to defend or appeal on grounds not permitted by law by a backdoor method. Any other interpretation will produce unjust results and open gates for the insurer to challenge any award. We have to adopt purposive approach which would not defeat the broad purpose of the Act. Court has to give effect to true object of the Act by adopting purposive approach.
(7)Sections 146, 147, 149 and 173 are in the scheme of the Act and when read together mean : (1) it is legally obligatory to insure the motor vehicle against third party risk. Driving an uninsured vehicle is an offence punishable with an imprisonment extending up to three months or the fine which may extend to Rs.1,000/- or both; (2) Policy of insurance must comply with the requirements as contained in Section 147 of the Act; (3) It is obligatory for the insurer to satisfy the judgments and awards against the person insured in respect of third party risks. These are sub-sections (1) and (7) of Section 149. Grounds on which insurer can avoid his liability are given in sub-section (2) of Section 149."
9.A plain reading of judgment (supra), shows that their Lordships of Hon'ble Supreme court have not considered provision of Section 170 of the Act. In case Section 170 is granted to contest, the case, then the position shall be same as owner of vehicle and the Insurance Company will have right to prefer appeal. For convenience, Section 170 of the Motor Vehicles Act, 1988 is reproduced 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, 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."
10.From a plain reading of Section 170 of the Act, it is evident that once permission under Section 170 of the Act is granted, then Insurance Company will have same status as of the owner of the vehicle. Hence after grant of permission under Section 170 of the Act, the Insurance Company will have right to prefer appeal. In view of the facts of the case, the provisions of Section 149 will not be applicable. In the case of Chinnama George (supra), Section 170 has not been considered by the Hon'ble Supreme Court. The power conferred by Section 170 is statutory power and in derogation of Section 149 of the Act, as is evident from the provisions itself. Accordingly, the appeal is very well maintainable. In view of the above, though the appeal is maintainable but on the question of quantum of compensation, impugned appeal, does not seem to survive. The compensation does not seem to be excessive.
11.The appeal is accordingly dismissed. Let amount deposited in this Court, be remitted to the Tribunal. Whatever amount is due it shall also be deposited within two months. The Tribunal shall release the amount in terms of award immediately after two months.
12.The appeal is accordingly dismissed.
No order as to costs.