An insurer's right to contest the quantum of damages in a motor accident claim is subject to the principle of subrogation, which requires a contractual provision allowing subrogation and a clear indication to the Tribunal that the insurer is raising the defense in the name of the insured and for the purpose of reducing the insured's liability.

( 1 ) THIS is an application made by the claimant, who is the respondent No. 1 in the Insurer's appeal, for summary dismissal of the said appeal.

( 2 ) IT is submitted that the fact of the accident and of the use of the vehicle there is no dispute. It is further submitted that the insurer has not raised any dispute in regard to the validity of the policy itself. As it appears from the Memorandum of Appeal, the insurer's only substantial grievane is against the quantum of damages assessed. Before the Claims Tribunal, the owner never put in an appearnace. The contest was made by the insurer and the insurer only. The insurer was a party to the claim from the beginning. Notice was also duly served. The insurer no doubt disputed the quantum, before the Claims Tribunals but even then, according to the claimant, the appeal is not arguable by the insurer.

( 3 ) THE facts of this case and the litigation so far are that sometime in or around July 1989, which is the month when the Motor Vehicles Act, 1988 also came into operation, the unfortunate accident occurred killing the only issue of the claimant. The claimant now resides in an interior part of Midnapore and is ill able to affored litigation. Her son died at an age practically below 20. He is used to work as a petty street vendor. The tribunal has awarded compensation of Rs. 80,000/- directing payment to be made within one month of the passing of the award, which was passed on 19. 2. 1992. In default of such payment, it was ordered, that the principal sum of Rs. 80,000/- would carry interest at the simple rate of 10% per annum from the date of presentation of the claim till payment.

( 4 ) FOR our purposes, since the claim has to be filed within six months from the accident, we shall treat interest as running from the beginning of the year 1990.

( 5 ) THE summary dismissal of the appeal was prayed for by invoking section 170 of the Motor Vehicles Act, 1988. The said section is set out herein below : 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.

( 6 ) IT was submitted that this section has already fallen to be considered by the Supreme Court. Such consideration has been made in the reported judgment of Shankarayya and Another, which was decided by the Supreme Court on January 16, 1998. The case is reported at AIR 1998 SC 2968.

( 7 ) THE short judgment of a page and a half was placed in full before us and it was emphasized that in that case the Supreme Court had refused to allow an appeal by the Insurer to be argued for reduction of the quantum of damages. The original claim before the Tribunal had been made to the extent of Rs. 2. 60 lac; the Tribunal had awarded Rs. 1. 05 lac. On an appeal by the Insurer, the High Court brought down the quantum of Rs. 60,000/ -. The Supreme Court said that the interference by the High Court was improper and the Insurer, not having appropriately invoked section 170 before the Claims Tribunal, was not entitled to raise a point as to the reduction of the quantum of damages in the appeal before the High Court.

( 8 ) THE Supreme Court noted that the insurer had been a party throughout before the Tribunal; that the Insurer had urged and argued the point of quantum before the Tribunal without any demur or protest being raised against such argument at that time befo