An insurance company is entitled to challenge the quantum of compensation awarded by the Tribunal, as challenging the amount claimed or awarded is not the same thing as denying the liability altogether.

Satyeshwar Roy, J.

1. Out of one bus accident, two claims were preferred under Sec.110A of the Motor Vehicles Act ("the Act"), one by Subhas Chandra Prajapati for injuries sustained by him which was registered as MJC No. 145 of 1974 and the other by the legal representatives of the deceased, Ram Briksha Mahto, which was registered as MJC No. 133 of 1974. Both the cases were heard together and were disposed of by one judgment. Two appeals were filed by the opposite party of those two claim cases. Miscellaneous Appeal No. 12 of 1978(R) which arose out of MJC No. 145 of 1974 was dismissed on March 11, 1983. This appeal is confined to the award given in MJC No. 133 of 1974 for the death of Ram Briksha Mahto.

2. According to the respondents-claimants, mini bus No. BHN 5454 was going from Dhurwa to Ranchi and Ram Briksha was travelling in the same. The bus met with a serious accident near Hinor crossing due to rash and negligent driving by the driver. Ram Briksha died at the spot. The respondents filed an application under Sec.110A of the Act for compensation of Rs. 75,000. The Tribunal allowed the claim and ordered that it shall be payable by the insurance company, the appellant, with interest from the date of the order till realisation at the rate of 6% per annum.

3. The appellant has challenged the quantum of compensation awarded. According to the appellant, since the evidence was that Ram Briksha was drawing a salary of Rs. 426 per month at the time of his death, the amount awarded was exorbitant because the multiplier used was imaginary. The award was liable to be reduced to less than Rs. 50,000. Moreover, the amount awarded by the Tribunal was in excess of the statutory limit and is liable to be reduced to the amount payable under law.

4. On behalf of the respondents, a preliminary objection was raised with regard to the maintainability of the appeal in view of Section 96(2) of the Act, It was also contended that on merits no case had been made out for any interference with the award.

5. Mr. Lal, learned counsel appearing on behalf of the respondents, submitted that the insurance company is entitled to defend the action on any of the grounds mentioned in Section 96(2) of the Act and as none of the grounds entitled the insurance company to challenge the quantum, the insurance company could not have defended the action on that ground either before the Tribunal or in this court in appeal. In support of his contention, Mr. Lal referred to a number of decisions of different High Courts.

6. Mr. Banerjee, learned counsel appearing on behalf of the appellant, submitted that there was no legal bar for the insurance company to challenge the quantum. He also urged that even if there be any such bar, it shall not apply if compensation is awarded beyond the maximum limit provided under Section 95(2) of the Act and the insurer is made to pay it. In support of his last contention, Mr. Banerjee relied on Howrah Insurance Co. Ltd. V/s. Yuktinath Jha [1973] 43 Comp Cas 552 (Pat); AIR 1973 Pat 326.

7. With regard to the maintainability of the appeal, Section 96(2) of the Act is relevant which provides that the insurer to whom notice of any proceeding is given shall be entitled to be made a party thereto and to defend the action on any of the grounds mentioned therein.

8. As far back as in 1959, the Supreme Court in British India General Insurance Co. Ltd. V/s. Captain Itbar Singh [1959] 29 Comp Cas(Ins) 60 ; AIR 1959 SC 1331, interpreted that sub-section and held (at page 64 of 29 Comp Cas (Ins.)):

"To start with it is necessary to remember that apart from the statute, an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Sub-section (2) of Section 96, however, gives him the right to be made a party to the suit and to defend it. The right, therefore, is created by statute and its content necessarily depends on the provisions of the statute. The question then really is, what