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IN THE HIGH COURT OF GAUHATI AT AIZAWL BENCH
Mir Alfaz Ali, J.
National Insurance Co. Ltd. – Appellant
Versus
Master Moses Lalruatdika and Others – Respondents
MAC Appeal No. 9 of 2018
Decided On : 04-12-2018
Motor Vehicle Act – Section 149 170 173 – Appeal Against Award of Compensation By Motor Accident Tribunal – This statutory appeal is filed by the Insurance Company against the judgment and award passed by the MACT, in MACT Case – The wife and the children of the deceased filed a claim petition before the MACT, and the learned tribunal by the impugned judgment and award granted a compensation of Rs. 72,75,870/- with interest @ 7% per annum from the date of filing of the claim petition – Appeal Preferred by Insurance Company – When evidently, the insurance company did not obtain any permission under Section 170 of the M.V. Act to contest the claim on other grounds besides the statutory defence available to it under Section 149(2) of the Act, I find force in the submission of the learned Sr. Counsel for the respondents, as to maintainability of the appeal, inasmuch as, the award has been challenged on merit and more particularly on quantum – With regard to the plea that the original driving license was not produced by the claimant, its suffice to say that the insurance company in the instant case did not take any specific plea with regards to the violation of the condition of the policy so far the driving license is concerned – Since no such plea was raised by the insurance company, Court do not find any substance in the submission of the learned counsel for the insurance company, that the claimant did not produce the original driving license, inasmuch as, the claimant is under no obligation to prove the driving license – Court find no force in the submission of the learned counsel for the Insurance Company that the Ext. 18 salary certificate cannot be accepted in evidence – May that as it be, the insurer is not entitled to raise such defence in the present appeal for the reason as indicated above – There was no evidence adduced by the insurance company to show that the deceased contributed to the accident – Learned tribunal attributed 15% contributory negligence to the deceased, which has not been objected to by the claimant – In view of the above facts and circumstances, Court find no merit in the submission of the learned counsel for the insurance company as regards contributory negligence of the deceased – However, the contention of the learned counsel for the insurance company that the amount of Rs. 5,00,000/- awarded by the tribunal towards expectation of life and love and affection respectively were erroneous and the tribunal ought not to have granted such amount – The Constitution Bench of the Apex Court in the case of National Insurance C. vs. Pranay Sethi, 2017 (16) SCC 680 has clearly laid down the guidelines and in view of the guidelines, such amount on conventional heads is not permissible – Therefore, having regard to the basic principle of granting just, fair and reasonable compensation, this court is of the view that in the interest of making the award just, fair and reasonable, Rs. 4,00,000/- granted by the learned tribunal for love and affection and Rs. 1,00,000/- for loss of expectation of life should be reduced – Accordingly, compensation granted by the tribunal is reduced by Rs. 5,00,000/-. The appeal stands partly allowed – The National Insurance Co. Ltd. is directed to satisfy the above modified award of Rs. 67,75,870/- (72,75,870 - 5,00,000/-) with interest as fixed by the learned Tribunal by depositing the same with the jurisdictional Tribunal within two months from today – Order Accordingly
JUDGMENT :
Mir Alfaz Ali, J.
1. Heard Mr. Johny L. Tochhawng, leaned counsel for the appellant and Mr. L.H. Lianhrima, learned Sr. Counsel, assisted by Ms. H. Lalmalsawmi, learned counsel for the claimant/respondent.
2. This statutory appeal under Section 173 of the M.V. Act is filed by the Insurance Company against the judgment and award dated 14.12.2017 passed by the MACT, Aizawl in MACT Case No. 25/2016.
3. The brief facts necessary for disposal of this appeal are that one Michael Pazawna died in a motor vehicle accident on 20.1.2016. The victim Michael Pazawna was riding a scooty bearing registration No. MZ-01/H-1503, which was hit by the offending truck bearing registration No. MZ-01/L-2299 from rear side and as a result of the accident he sustained injury and died.
4. The wife and the children of the deceased Michael Pazawna filed a claim petition before the MACT, Aizawl and the learned tribunal by the impugned judgment and award granted a compensation of Rs. 72,75,870/- with interest @ 7% per annum from the date of filing of the claim petition.
5. Aggrieved by the said award, the insurance company has preferred the instant appeal.
6. As would appear from the submission made by the learned counsel for the appellant, the award is assailed basically on the following grounds:
(i) The learned tribunal erroneously attributed 15% contributory negligence to the deceased, which according to the appellant, should have been more.
(ii) The income of the deceased was not duly proved as the last pay certificate of the deceased was not proved through the issuing authority.
(iii) The original driving license was not produced by the claimant.
(iv) The learned tribunal awarded an amount of Rs. 4,00,000/- and Rs. 1,00,000/- towards love and affection and loss of expectation of life respectively, which are not permissible.
7. Learned Sr. Counsel for the respondent resisted the appeal on the preliminary ground, that the appeal itself is not maintainable, reason being that the insurance company did not obtain permission to raise the defence beyond statutory defence available under Section 149(2) of the M.V. Act. In support of his submission, learned Sr. Counsel placed reliance on the following decisions:
(i) New India Assurance Co. vs. Sangzuali and Another, 2001 (2) TAC 136 (Gau)
(ii) Josphine James vs. United India Insurance Co. Ltd. 2013 (4) TAC 22 (SC)
8. Since a preliminary objection is raised as to the maintainability of the appeal itself, I deem it apposite to address this issue at the outset. From the record, it appears that the insurance company did not obtain any order under Section 170 of the MV Act from the tribunal to contest the claim on merit besides the statutory defence available to the insurance company under Section 149(2) of the MV Act.
9. Section 149 of the M.V. Act makes it amply clear that the insurer can defend a claim only under the grounds specified in Clause (a) and (b) of sub-section (2) of Section 149 of the Act. In case, the insurer seeks to contest the claim on merit or on the ground, other than the statutory grounds available under Section 149(2) of the Act, the insurance company has to obtain an order from the tribunal under Section 170 of the Act. In the instant case, evidently the insurer did not obtain such an order from the tribunal under Section 170, and as such, the insurance company cannot file an appeal challenging the award on merit or on the grounds other than the statutory defence provided under Section 149(2). This Court in New India Assurance Co. Ltd. vs. Sanjuali and Others (supra) held the insurance company cannot maintain an appeal on merit without obtaining an order under Section 170 of the Act. The Apex Court in Josphine James vs. United India Insurance Co. Ltd. and Another, 2013 (4) TAC 22 (SC), relied by learned counsel for the respondent observed, that the insurance company has got limited defence as provided under Section 149(2) of the M.V. Act and in absence of permission obtained from the tribunal und
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