Mrs. Raj Mohini Sethi vs Motor Accidents Claims Tribunal and Others

A.L. Bahri, J.—This petition under Article 227 of the Constitution has been filed by the petitioner, Mrs. Raj Mohini Sethi, challenging the order of the Motor Accidents Claims Tribunal, Karnal, dated July 28, 1986, whereby an additional issue was framed and the insurance company was allowed to cross-examine the witnesses to be produced by the petitioner who had filed a claim application claiming a sum of Rs. 46,000 as damages caused to her car No. CHE 305 which was involved in an accident with another car No. PBA 9393. In the claim application, apart from National Insurance Company, the owner and driver of car No. PBA 9393, Hukam Chand and Sons and Mohinder Singh, were impleaded as parties.

The accident occurred on August 6, 1985, when the petitioner''s car No. CHE 305 was being driven by her husband. Car No. PBA 9393 struck against and damaged car No. CHE 305. This accident occurred on account of negligent and rash driving of the said car by Mohinder Singh, driver. In the written statement filed by the owner and driver Of car No. PBA 9393, the accident was admitted. However, it was sought to be explained that in the process of overtaking, the incident occurred per chance and that it was a mere accident. A separate written statement was filed by the insurance company denying the accident. Some issues were framed by the Motor Accidents Claims Tribunal. However, from the impugned order, it appears that no issue regarding negligent driving of Mohinder Singh of car No. PBA 9393 was framed. The insurance company filed an application u/s 110C of the Motor Vehicles Act before the Tribunal, inter alia, alleging that the owner and the driver of car No. PBA 9393 had colluded with the petitioner as they admitted the accident in the written statement and thus the insurance company should be allowed to cross-examine the witnesses. A reply to this application was filed on behalf of the present petitioner controverting the allegations. The impugned order was passed by the Tribunal allowing the insurance company to cross-examine the witnesses to be produced by the present petitioner in the case and further framed the following additional issue :

" 5A. Whether any accident, if any, had taken place between car No. CHE 305 and Ambassador car No. PBA 9393 due to rash and negligent driving of respondent No. 2 ? "

Mr. L. M. Suri, advocate for the petitioner, has contended that the impugned order is against the provisions of Section 96(2) of the Motor Vehicles Act as the insurance company is not entitled to contest the claim application on any ground except those provided u/s 96(2) of the Motor Vehicles Act. He referred to certain decisions relating to the provisions of Section 96(2) of the Motor Vehicles Act. 1 need not refer to those decisions or elaborate them for the simple reason that under certain circumstances, the insurance company can be permitted to take up the grounds available to the owner or the driver of the vehicle involved jn the accident as required u/s 110C(2A) of the Motor Vehicles Act which reads as under;

" Where, in the course of any inquiry, the Claims Tribunal is satisfied that--

(i) there is collusion between the person making the claim and the person against whom the claim is made, or

(ii) the person against whom the claim is made has failed to contest the claim,

it may, for reasons to be recorded by it 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 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."

In a motor accident case, normally the insurance company is not entitled to contest the claim application except on the specified grounds as given in Section 96(2) of the Motor Vehicles Act which are briefly to the effect that the insurance policy was cancelled by mutual consent or there was breach of specified conditions of the policy regarding the use of the vehicle or the person driving was not duly licensed or the occurrence took place by conditions of war, riot, etc., or that the policy was obtained by fraud. However, when, during the course of any inquiry, the Claims Tribunal is satisfied that there is collusion between the person making the claim and the person against whom the claim is made or that the person against whom the claim is made has failed to contest the claim for reasons to be recorded, the insurer will have 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 as provided u/s 110C(2A) of the Motor Vehicles Act as reproduced above.

In the present case, the insurance company wanted to contest the claim on the grounds which were available to the owner and the driver of the motor vehicle. No doubt, no specific finding was recorded by the Motor Accidents Claims Tribunal in the impugned order that there was collusion between the petitioner and the owner and driver of the car. However, the fact was noticed that the owner and the driver of car No. PBA 9393, in their written statements, admitted all the material contentions of the petitioner. This would show that the owner and the driver of the said car against whom the claim was made failed to contest the claim. It was on that account that the Tribunal did not frame any issue initially regarding, negligence or rashness on the part of the driver of the car No. PBA 9393 resulting in the accident. Grounds given under Clause (ii) of Sub-section (2A) of Section 110C having been established, the Tribunal was thus justified in allowing the insurance company to contest the claim application on the grounds which were available to the owner and the driver of the said car.

Learned counsel for the petitioner referred to the decision of the Allahabad High Court in New India Assurance Co. Ltd. v. Dau Dayal [1986] 60 Comp Cas 518 : [1987] ACJ 528. This decision is not helpful to the petitioner as in that case, in appeal, the insurance company wanted to take up the defence u/s 110C(2A) of the Motor Vehicles Act. In para 10 of the judgment, it was observed that Section 110C(2A) applies to the proceedings before the Claims Tribunal and not in appeal. Thus, in that case, it was held that in view of Section 96(2) of the Act, the defences available to the insurance company were only as provided in the said section and not others. The position in the present case is entirely different as the insurance company approached the Motor Accidents Claims Tribunal at the initial stage for taking up defences available to the owner and driver of the car. The other decision relied upon by learned counsel for the petitioner is of the Kerala High Court in P.K. Krishnan Nair v. K. Karukaran Nair [1986] ACJ 41 . Again, that was not a case where the insurance ''company wanted to take up the defence u/s 110C(2A) of the Motor Vehicles Act. On the same ground, the decision of the Gujarat High Court in New India Assurance Co. Ltd. Vs. Shakuben and Others, is not helpful to the petitioner.

Learned counsel for the petitioner also placed reliance on the decision of the Supreme Court in British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and Others, on the point that in view of Section 96(2) of the Motor Vehicles Act, the defences open to the insurer are only "those as mentioned therein. It may be stated that Section 110C(2A) was inserted in the Motor Vehicles Act in 1969. In the present case, Section I IOC(2A), as reproduced above, would be applicable.

On behalf of the respondent, reliance was placed on the decision of the Punjab and Haryana High Court in Vanguard Co. Ltd. v. Rabinder Kaur. In that case, no objection was taken by the insurance company before the Motor Accidents Claims Tribunal that there was collusion between the claimant and the owner or driver of the motor vehicle involved in the accident. In such circumstances, it was held that the insurance company could not be allowed to contest the award on merits. This decision again is not helpful in deciding the case in hand. As already observed above, the insurance company took up the objection before the Motor Accidents Claims Tribunal u/s 110C(2A) of the Act for taking up the defences available to the owner and the driver of the car.

For the reasons recorded above, this petition fails and is dismissed. There will be no order as to costs. The order staying the proceedings before the Motor Accidents Claims Tribunal stands vacated. The parties through their counsel are directed to appear before the Motor Accidents Claims Tribunal on July 25, 1988.