( 1 ) SEVEN reference matters have come up before us on account of conflicting different bench decisions of our court. Those seven matters are as follows: (1) f. m. a. no. 1110 of 1997 tara sundari. (2) f. m. a. no. 1790 of 2000 anjan chowdhury. (3) f. m. a. no. 147 of 1998 md. Saitul haque. (4) f. m. a. no. 1107 of 1997 sujauddin sarkar. (5) f. m. a. no. 1453 of 2000 premlata chowbey. (6) f. m. a. no. 1429 of 2000 sanatan hazra. (7) f. m. a. no. 1472 of 2000 tripti majhi.

( 2 ) THE main reference was made in the case of tripti majhi, where v. k. gupta, j. , as his lordship then was, speaking for the division bench said as follows in the beginning of the judgment:"in this appeal, the point of law involved as to whether an appeal by an insurance company against an award of the motor accidents claims tribunal only on the question of quantum of compensation is maintainable or not. "

( 3 ) LATER on during the judgment his lordship further explained that the conflict arose out of an unreported division bench judgment (unreported at that time) in united india insurance co. Ltd. V. Gita rani mondal, 2001 acj 1692 (calcutta ). That judgment was delivered by me and the division bench consisted of myself and the hon'ble ranjan kumar mazumdar, j. (since retired ).

( 4 ) IN that judgment we had relied upon the case of british india genl. Ins. Co. Ltd. V. Captain itbar singh, 1958-65 acj 1 (sc), very heavily. Captain itbar singh's judgment was delivered by a apex court bench of strength three. Drawing upon the dicta of the supreme court in that case and relying upon a particular clause in the insurance policy which we shall presently refer to hereafter again, we opined that it was always open for the insurance company in cases where the insurance contract contained a clause of the above type, to contest in the name of the insured owner, the claim of the victim of the motor accident even on questions of quantum of damages only.

( 5 ) THAT clause is now found as a matter of course in almost all motor insurance policies. Mr. K. k. das appearing for the insurance companies assures us of the ubiquitous presence of that clause as he had also assured us of such presence of the said clause when he was arguing the case of gita rani mondal, 2001 acj 1692 (calcutta), before the division bench. The said clause is as follows:" (2) no admission, offer/promise of payment shall be made by the insured without the written consent of the company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in his name for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the company may require. If the company shall make any payment in settlement of any claim and such payment includes any amount not covered by this policy the insured shall repay to the company the amount not so covered. "

( 6 ) WE make it clear that gita rani mondal, 2001 acj 1692 (calcutta), got decided differently from the other division bench judgment of this court because of the emphasis placed by mr. Das on the said insurance clause, and the importance given to such a clause by the supreme court in captain hbar singh's case, 1958-65 acj 1 (sc ). We proceed hereafter to decide the right of the insurance company, to prefer an appeal on the question of quantum of damages, but we consider that question only for those cases where the insurance cover contains a clause like the one quoted above. Since such a clause was there in gita rani mondal's case, there is as yet no conflict of division benches and no references to the special bench therefrom in regard to the maintainability of the insurer's appeal on grounds of quantum only in those cases, where the insurance cover does not contain a clause like the above.