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1999 Supreme(Guj) 93
Gujarat High Court
Judgename :C.K.BUCH, R.K.Abichandani
UNITED INDIA INSURANCE COMOANY LIMITED - Appellant
Versus
HETALBHAI C.BAGADIA - Respondent
C.A. 1475 of 1997
Decided On : 03/04/1999
Headnote:Motor Vehicles Act, 1988-Secs. 173, 149(2) & 170-Appeal -against award-Defences open to insurer-Scope-Insurer can -not be permitted to contest proceedings on merits unless insurer has -obtained such permission in writing from Tribunal during proceedings -as laid down in Shankarayya vs. United India Insurance Company Limited, -1998 (3) SCC 140-Following the said decision of Supreme Court -in absence of any permission having obtained by insurer in the case -all the three appeals dismissed by Court.
This Court find it difficult to accept that these obvious -points were not before Hon ble the Supreme Court when it held in Shankarayya s -case that the Insurance Company when impleaded as a party by the Court -can be permitted to contest the proceedings on merits only if the -conditions precedent mentioned in Sec. 170 are found to be satisfied -and for that purpose the Insurance Company has to obtain an order -in writing from the Tribunal and which should be a reasoned order -by the Tribunal. Unless that procedure is followed, the Insurance -Company cannot have a wider defence on merits than what is available -to it by way of statutory defence. It was also held that the Insurance -Company was joined by the claimants themselves as a party in the claim -petition but that was done with a view to thrust the statutory liability -on the Insurance Company on account of the contract of the Insurance. -That was however, not an order of the Court itself permitting, the -Insurance Company which was impleaded, to avail of a larger defence -on merits on being satisfied on the two conditions incorporated in -Sec. 170. It was therefore, held that the Insurance Company was not -entitled to file an appeal on merits of the claim, which was awarded -by the Tribunal. There is nothing in the record of the proceedings -of the present case which would even remotely indicate that the Tribunal -had applied its mind for reaching a satisfaction that the conditions -mentioned in Sec. 170 were present or made an order, much less a reasoned -order, which would enable the Insurance Company to avail of a larger -defence on merits. Merely because the Advocate for the Insurance Company -was allowed to cross-examine the witness of the claimant, it can never -be inferred therefrom that it should be treated as an order granting -permission to the Insurance Company to avail of a larger defence on -merits.
There is hardly any distinction between the facts of -the present case and the case before the Hon ble Supreme Court and -the gallant attempt made on behalf of the appellant by its learned -Counsel that the contentions which he is now raising before this Court -were not projected before the Hon ble Supreme Court, does not lead -us anywhere. Following the decision of the Hon ble Supreme Court in -Shankarayya s case, this Court dismiss all these three appeals summarily.
( 1 ) ). The appellant-Insurance Company seeks to challenge the judgment and award made by the Motor Accident Claims Tribunal (Main), Bhavnagar on 17-12-1996 in M. A. C. Petition Nos. 180, 182 and 183 of 1994, in which the claimants were awarded Rs. 4,48,000. 00 (M. A. C. Petition No. 180 of 1994), Rs. 1,48,000. 00 (M. A. C. Petition No. 182 of 1994) and Rs. 1,17,000. 00 (M. A. C. Petition No. 183 of 1994) respectively with interest. Since all the three appeals raised common questions they have been argued together by the learned Counsel.
( 2 ) ). The vehicular accident that resulted in the three claim petitions occurred on 12-11-1993 at about 10-00 p. m. , near village Bhadi on Bhavnagar-Talaja Coastal Highway. The petitions were consolidated and the evidence was recorded in M. A. C. Petition No. 180 of 1994. According to the claimants, on the day of the incident, deceased Hetalbhai and two injured claimants-Rajesh and Kalpesh were travelling in a jeep which while being driven rashly and negligently and at an excessive speed, collided with a public carrier which was lying stationary. As a result of this accident, Hetalbhai, son of the claimants of M. A. C. Petition No. 180 of 1994 died and the two injured claimants of the other two petitions sustained serious injuries. The deceased Hetalbhai was of about 23 years of age and has studied upto B. Com. and was at the relevant time serving with ship breakers at Alang drawing a salary of Rs. 3,000. 00 per month. He was also working for a Bombay firm and was appointed at Alang to collect iron scrap for which he was being paid Rs. 1,500. 00 per month. He was also getting commission of 1 percent on business, if he secured business above Rs. 10 lacs. According to the claimants of M. A. C. Petition No. 180 of 1994, he was earning about Rs. 4,500. 00 per month and on that basis, compensation of Rs. 5,15,000. 00 was claimed. The claimant of M. A. C. P. No. 182 of 1994 Kalpesh had sustained fractures of left shaft humerus, left clavical and ribs of the left side and sustained 10 percent disability. According to him, he was serving as a commission agent with a firm and earning Rs. 4,500. 00 per month and have to spent Rs. 80,000. 00 for his treatment. As per his case, he was bed-ridden for a long time. A total claim of Rs. 2,61,000. 00 was made by him. The claimant of M. A. C. P. No. 183 of 1994 Rajesh, who sustained fracture in the left leg and head injuries that resulted in 16 percent disability to the affected limb, has made a total claim of Rs. 2. 00 lacs including an amount of Rs. 85,000. 00 which was spent on his treatment.
( 3 ) ). The Tribunal on the basis of the material on record found that the jeep driver was responsible for the accident to the extent of 80 percent while the driver of the public carrier was responsible to the extent of 20 percent for the accident. It was held that the accident had occurred due to their rash and negligent conduct. The Tribunal, in order to avoid any future litigation as noted in paragraph 18 of the judgment, ordered that considering 20 percent contributory negligence of the driver of the public carrier, the proportionate amount be deducted from the claim which was accepted. The appellant was the insurer of the jeep car and therefore, it became liable to pay 80 percent of the amount awarded by way of compensation as worked out under the award.
( 4 ) ). The learned Counsel appearing for the appellant when confronted with the provisions of Sec. 170 of the Motor Vehicles Act, 1988 and the decision of the Honble the Supreme Court in Shankarayya v. United India Insurance Company Limited, 1998 (3) SCC 140 and with the fact that there was no order obtained from the Tribunal during the proceedings permitting the appellant to contest the proceedings on merits, submitted that no such speciafic order was required and permission can be culled out from the fact that the Advocate of the Insurance Company was allowed to cross-examine the cla
