Back
2002 Supreme(Kar) 630
Karnataka High Court
National Insurance Co.Ltd. - Appellant
Versus
Renuka - Respondent
Decided On : 10-07-02
M.F.A. : 1803 of 2000
A.G.Shivanna, B.R.VISHWANATH, Basavaprabhu S.Patil, G.BALAKRISHNA SHASTRI, G.H.LAKSHMINARAYANA, K.APPA RAO, NIRANJAN KUMAR, O.Mahesh, R.S.SIDHAPURKAR, SUMA SHESHAGIRI, UMESH R.MALIMATH, V.K.MADHAVA REDDY
Headnote:Joint appeals -maintainability
MOTOR VEHICLES ACT, 1988 - Section 173 -Appeal filed by both the insured and the Insurer against the order passed by the Tribunal -whether maintainable? No. Proper course -deletion of the name of the Insurer and to proceed against the insured.
[R. Gururajan, J.] - The latest judgment has chosen to lay down the law to the effect that the joint appeal by the insured and the insurer is not liable to be dismissed and the proper course is to delete the name of the insurer from the cause title and proceed with the case of the insured and decide the case on merits. The appeal is not be dismissed without following the above course in terms of the judgment of the Supreme Court in the case on hand. In the light of the latest judgment of the Supreme Court and in the light of the objection of the claimant, an option was given to the counsel appearing for both the insured and the insurer in the case on hand. Instead of availing the course in terms of the judgment of the Apex Court, the counsel appearing for the appellants filed a memo and in the memo the appellants insisted on maintainability of joint appeals and the appellants stated that there is no occasion to delete the insurer. It is not possible for the court, particularly in the light of the clear pronouncement of the Supreme Court in Ahmed Hussain s case (AIR 2002 SC 2483) after consideration of all the previous cases, to permit the appellants to maintain a joint appeal. Joint appeal is therefore held to be not maintainable in the light of the latest law by the Highest Court of the country. Counsel however refers to me a Division Bench Judgment of the Court in the case of Smt. Shantha Rathod vs. Mahantesh (ILR 2002 KAR 2811) to contend that joint appeal is maintainable. The Division bench held that the appeals by the owner and the insurer, on the facts and circumstances are maintainable. That was a judgment rendered by the Court after noticing Chinamma George s case. The Division Bench has ruled that where owner has contested the case he can file an appeal either by himself or by adding the insurer as a co-appellant. The Division Bench did not have the benefit of the latest judgment of the Supreme Court in the case of AHMED HUSSAIN Vs. IRFAN AHAMMED (AIR 2002 SC 2483). In these circumstances, the course suggested by the Apex Court after noticing the earlier judgments has to be adopted. In the case on hand, judicial discipline require me to follow the latest law of the Supreme Court.
Cases Referred: AIR 2002 SC 2483; (1998) 9 SCC 202; (2000) 4 SCC 130; (2002) 2 SCC 265; ILR 2002 Kar. 2811.
( 1 ) THESE appeals are filed both by the insured as well as the insurer challenging the judgment and award passed by M. A. C. T. , Gulbarga, in M. V. C. Nos. 415, 444, 450, 452, 522, 527, 677 and 111 of 1997.
( 2 ) THIS court admitted the appeals and ordered interim stay. Matter was posted from time to time. On 5. 9. 2002, the matter was heard. The learned counsel for the respondents invites my attention to the latest judgment of the Apex Court with regard to maintainability of the appeal filed by the insured as well as the insurer. In these circumstances, counsel for the insurance company was asked as to whether he would like to delete any one of the appellants.
( 3 ) ON 17. 9. 2002 matter was listed for further hearing. On that date, learned counsel filed a memo stating therein that joint appeals are maintainable and occasion to delete the insurer would not arise and the appeals are to be heard and disposed of on merits. He also relied on several judgments.
( 4 ) LEARNED counsel for the respondents strongly relies on a recent judgment of the supreme Court in H. S. Ahammed Hussain v. Irfan Ahammed, 2002 ACJ 1559 (SC ).
( 5 ) IN the light of the objections with regard to maintainability of a joint appeal at the instance of the insured and the insurer, the matter is heard.
( 6 ) SECTION 173 of Motor Vehicles Act provides for an appeal under sub-section (1) of the Act. The said section reads as under:"173. Appeals. (1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court. "a careful reading of the said section would show that any person aggrieved may within 90 days prefer an appeal.
( 7 ) THE question as to whether joint appeal by insured and insurer is maintainable or not is debated and courts have given their ruling on this issue.
( 8 ) THE Supreme Court in the case of narendra Kumar v. Yarenissa, 1998 ACJ 244 (SC), noticed the various provisions of the Motor Vehicles Act of 1939. Thereafter in para 7, the Supreme Court ruled as under:"for the reasons stated above, we are of the opinion that even in the case of a joint appeal by the 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. "the Supreme Court also ruled that merely because a joint appeal is preferred and it is found that one of the appellants, namely, the insurer was not competent to prefer an appeal, it cannot be said that the appeal by the tortfeasor, the owner of the vehicle cannot be proceeded with after dismissing or rejecting the appeal of the insurer.
( 9 ) THE next case is Chinnama George v. N. K. Raju, 2000 ACJ 777 (SC ). The supreme Court in this case considered the scope of sections 149 (2), 146 and 173 of the Motor Vehicles Act. The Apex Court in this case after noticing Narendra Kumar v. Yarenissa, 1998 ACJ 244 (SC), ruled in para 6 as under:"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 prohibits the insurer from filing any appeal except on the limited grounds on which it could defend the claim petition. We cannot put our stamp of approval as to the validity of the appeal by the insurer merely by associating the insured. "
( 10 ) THE Supreme Court again in United india Insurance Co. Ltd. v. Bhushan Sach-deva, 2002 ACJ 333 (SC), has considered the scope of sections 173, 168, 170 and 149 (2) of the Motor Vehicles Act. It has considered both Narendra Kumar, 1998 acj 244 (SC) and Chinnama George, 2000 ACJ 777 (SC) and thereafter ruled in para 10 as under:" (10) Can it be said that the insurance company should not have any
