The main legal point established is that the insurer, when impleaded as a party respondent, is entitled to contest the claim application and file an appeal on all available grounds without obtaining leave under section 170 of the Motor Vehicles Act, 1988.

CIMA No. 66/2014, MP No. 86/2014

1. The appellant-Insurance Company is in appeal against the judgment and award of the Motor Accident Claims Tribunal, Jammu (for short the Tribunal), whereby in a claim application under section 166 of the Motor Vehicles Act, 1988 (for short the Act) the learned Tribunal has awarded compensation of Rs. 18,40,000/ to respondent No. 1 (hereinafter to be referred to as the claimant). Liability of paying the compensation has been foisted on the appellant.

2. Heard. I have perused the record.

3. On 11.06.2002 the claimant, a Naik in Indian Army, was traveling by a passenger bus bearing registration No. JK 01Y-0381 from Jammu to Srinagar. The bus met with accident on Jammu-Srinagar National Highway at Banihal. It fell down in a 400 feet deep gorge. Claimant received injuries, which caused him disablement and he was discharged from the Army. Eight year after the accident, he filed the claim application in November, 2010. The Tribunal on inquiry found that the accident had occurred due to negligent driving by the driver of the offending bus. Learned Tribunal found further that as per the disability certificate, claimant suffered 40 per cent permanent disability due to injuries sustained in the accident leading to his discharge from the Army and awarded compensation of Rs. 18,40,000/ to the him comprising of Rs. 18,04,262/ as compensation for loss of future income, Rs. 10,000/ each on account of pain and sufferings, loss of amenities and transport expenses and Rs. 6,000/ on account of diet expenses.

4. The appellant-insurance company has challenged the impugned judgment and award on various grounds. Learned counsel for the appellant, Mr. Rupinder Singh, however, restricted the appellant’s assail to the extent of the quantum of compensation awarded on account of the loss of future income. Learned counsel for the claimant, Mr. R. K. Bhatia, however, raised preliminary objection about maintainability of the appeal by the insurance company, which I take up first.

5. The objection raised by Mr. Bhatia was that the appellant had not obtaining leave from the learned Tribunal in terms of the section 170 of the Act to take over the defenses available to the insured (owner of the offending bus) so it cannot assail the judgment and award passed by the Tribunal on the question of the quantum of compensation awarded to the claimant. Mr. Bhatia urged that under section 149(2) limited and specified defense is available to the insurer so the insurer can defend the claim or file appeal on those grounds only. Appeal on the other grounds including the question of quantum of compensation can be filed by the insurer, only in a case where it had been granted leave by the Claims Tribunal in terms of section 170. Mr. Bhatia relied upon Rekha Jain and another v National Insurance Company Limited, AIR 2013 SC 3458.

6. Per contra, Mr. Rupinder Singh, learned counsel for the appellant, opposed the claimant’s contention that the appellant had not obtained leave under section 170 of the Act from the learned Tribunal and submitted that application in this regard was filed by the appellant before the Tribunal in the course of inquiry. On the point of law, learned counsel argued that in a case where the claimant has impleaded the insurer as party respondent in the claim application, the insurer can contest the claim on all those grounds, which are available to the insured, including the quantum of compensation claimed by the claimant without seeking leave in terms of section 170 and likewise insurer can question the award of the Tribunal on all available grounds including quantum of compensation. Learned counsel urged that requirement of leave under section 170 of the Act arises only in a case where insurer was not impleaded as party respondent by the claimant and was only issued notice by the Tribunal in terms of section 149. Learned counsel relied upon United Insurance Company Limited v Sheela Dutta and others, 2011 ACJ 2729.

7. T