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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
R.K. Deshpande, Vinay Joshi, JJ.
I.C.I.C.I. Lombard General Insurance Company Ltd., Nagpur - Appellant
Vs.
Surekha - Respondent
First Appeal No. 189 of 2019
Decided On : 16-09-2019
Motor Vehicles Act - Section 170 – Claim of compensation – Injury - 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 – Held, an earlier decision may seem to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the court or more aspects should have been gone into by the court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction - Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways - either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits - Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decision, and it is therefore, desirable that in case of difference of opinion, the question should be authoritatively settled by larger Bench. In this context, we may fruitfully note what has been stated by the Supreme Court in a reported case of Vijay Laxmi Sadho .vrs. Jagdish, (2001) 2 SCC 247. In the said case, it is held that "As the learned Single Judge was not in agreement with the view expressed in Devilal case, it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view." The Supreme Court in another case of Sandhya Educational Society and another .vrs. Union of India and others, (2014) 7 SCC 701, has observed that "the judicial decoram and discipline is paramount and, therefore, a coordinate Bench has to respect the judgments and orders passed by another coordinate Bench - In view of that, the learned Single Judge while deciding the case of Gulam Mohammad (supra), ought to have referred the question to larger Bench instead of taking Be that as it may, the view taken by the Honble Supreme Court in case of Nicolletta Rohtagi though referred to the larger Bench, still holds the field, as explained by the Supreme Court in Josephine James case, and therefore, the position is quite clear that the appeal of the insurer in absence of leave under Section 170 [b] of the M.V. Act is not maintainable. To modulate the answer to the question referred, we state that the view taken by the learned Single Judge in case of Gulam Mohammad, taking a contrary view to the decision rendered in the case of Nicolletta Rohtagi and Josephine James, cannot be accepted, and it is not a good law – Order accordingly
JUDGMENT :
Vinay Joshi, J.
Two inconsistent views taken by learned Single Judges of this Court gave rise to this reference to the larger Bench. The controversy in short was - Whether the appeal of insurer in terms of Section 173 of the Motor Vehicles Act, is maintainable in absence of permission obtained from the Tribunal as per Section 170[b] of the Motor Vehicles Act ?
2. In case of Royal Sundaram Alliance Insurance Co. Ltd. .vrs. Hanamava Yamanappa Jedi and others, (2014) 4 MhLJ 401, the learned Single Judge of this Court ruled that, in absence of leave under Section 170 [b] of the Motor Vehicles Act, ("the M.V. Act" for short), the appeal of the insurer challenging the award is not maintainable. Whilst another learned Single Judge of this Court in reported case of United India Insurance Co. Ltd., Goa .vrs. Gulam Mohammad and others, (2016) 6 MhLJ 601, taken a view that such appeal of the insurer is maintainable, without leave being sought from the Tribunal under Section 170 [b] of the M.V. Act.
3. In present appeal, the said inconsistent decisions were cited before the learned Single Judge. Perceiving the controversy, the learned Single Judge has framed following question, and referred to the larger Bench for adjudication.
4. On and often preliminary objection is being raised about maintainability of insurer's appeal in absence of prior permission of the Tribunal in terms of Section 170[b] of the M.V. Act. In other words, whether insurance company alone can contest the claim in appeal sans prior permission of the Tribunal to contest the claim on the grounds other than stated in Section 149[2] of the M.V. Act. For better appreciation, we find it necessary to reproduce the relevant provisions of the M.V. Act herein below :
(1) .....
(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 civi
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