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Judgment
M.C. Sharma, J—Since both these three (sic) appeals relate to one incident and arise out of the common judgment and award passed by the learned Tribunal, hence the arguments have been heard together and they are being decided by this common judgment. Brief facts of the case are that on 4.4.2011 the claimants and their family members were coming from Karauli to Agra after Darshan of Karauli Mata in Maruti Van No. UP 80/8251. At about 3.00 AM, when they were going ahead towards Agra after crossing Saras Chauraha, in the way near village Barso in between 3-3.30 AM, the driver of Bus No. RJ 05 P 0301 drove the bus rashly and negligently and hit the Maruti van from its back side, as a result of which Mannu, Rani, Duli Chand, Reena, Kr. Preeti, Manoj and Ravi sustained severe injuries on their body, who were immediately admitted in RBM Hospital, Bharatpur. On account of grievous injuries sustained by Mannu, Reena and Kr. Preeti, they succumbed to injuries and rest of the injured persons took treatment in Bharatpur Hospital.
Thereafter FIR was registered for the said accident in the concerned police station. Thereafter claims petitions were filed, notices were issued, written statement of defence was filed, issues were framed and hearing the counsel for both the sides, the learned Tribunal passed the judgment and award dt. 9.10.2013; awarding Rs. 7,19,000/- in favour of claimant Mamta on account of death of her daughter Reena; and Rs. 7,04,000/- in favour of claimants Rani and another on account of death of their daughter Preeti.
Being aggrieved by the aforesaid judgment and award, these three appeals have been filed by the Insurance Co.
Learned counsel for the Insurance Co. has contended that the finding of the Tribunal while deciding issue No. 1 and holding that the accident in question took place due to sole negligence of the driver of the Bus is erroneous and contrary to the evidence available on record. He has further contended that there is no testimony of any witness, who was occupant of the bus, stating that the accident in question occurred due to sole negligence of the driver of the bus. He has further contended that the investigating officer has filed the charge sheet merely on the basis of the statements of the occupants of the Maruti Van, which has no evidentiary value in the trial. He has further contended that AW-3 Rani, who was the eye-witness has admitted in the cross-examination that the accident occurred due to the negligence of the Maruti Van driver. The I.O. has not come in the witness box, who filed the charge sheet and hence the appellant has been deprived from having valuable right of cross-examination and mere fact that the charge sheet has been filed, is not sufficient to hold that the accident in question occurred due to rash and negligent driving of the driver of the bus. He has further contended that Sec. 157 of the MV Act provides the automatic transfer of the policy in case the vehicle is transferred during currency of the policy, but in the present case, the vehicle was transferred prior to accident and no information regarding change of ownership was given to the Insurance Co. within 15 days by the insured and as such on the date of accident, the transferee was not substituted as insured and he was stranger person and as such there was no relationship of insured and insurer between the defecto owner and the Insurance Co. and as such the Insurance Co. cannot be held liable to indemnify the defecto owner. He has further contended that the award passed by the Tribunal is excessive, without there being any evidence with regard to income. Hence the impugned judgment and award passed by the learned Tribunal deserves to be quashed and set-aside.
I have heard learned counsel for the Insurance Co. and carefully perused the relevant material on record including the impugned judgment and award.
At this stage, it is appropriate for this Court to have a look at the provisions of Sec. 173, 170(b) and 149(2) of M.V. Act. The said provisions are reproduced as under:
Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.--
(1).................
(2) No sum shall be payable by an insurer under sub-sec. (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given, the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving license during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the grounds that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.
(3)...............
(4)...............
(5)...............
(6)...............
(7)...............
Impleading insurer in certain cases.--where in the course of any inquiry, the Claims Tribunal is satisfied that--
(a) ......................
(b) the person against whom the claim is made has failed to contest the claim.
Appeals.--(1) Subject to the provisions of sub-sec. (2) any person aggrieved by an award of a Claims Tribunal, may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount as awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient-causes from preferring the appeal in time.
(2)................
A combined reading of the aforesaid provisions makes it clear that the Insurance Co. was impleaded as a party in the claim petition; the notice was served upon them; they contested the claim petition and no defence was raised by them taking the grounds as enumerated in Sec. 149(2). Furthermore, the application moved by the Insurance Co. u/s. 170 of the MV Act had already been dismissed by the Tribunal vide order dt. 16.8.2012. Thus, in view of above, it was the duty of the insurance Co. to satisfy the judgment and award against persons insured in respect of third party risks.
Hon''ble Apex Court in the case of Josphine James Vs. United India Insurance Company Ltd. and Another, (2013) 3 ACC 654 : (2013) ACJ 2418 : (2013) 5 CTC 681 : (2013) 10 SCALE 340 has held that Insurance Co. is not entitled to file appeal questioning the quantum of compensation in favour of the claimant as it had only limited defence as provided under Sec. 149(2) of the Act. The relevant paras of the aforesaid judgment delivered by Hon''ble Apex Court in the case of Josphine James (supra) are reproduced as under:
The said order was reviewed by the High Court at the instance of the appellant in view of the aforesaid decision on the question of maintainability of the appeal of the Insurance Company. The High Court, in the review petition, has further reduced the compensation to Rs. 4,20,000/- from Rs. 6,75,000/- which was earlier awarded by it. This approach is contrary to the facts and law laid down by this Court. The High Court, in reducing the quantum of compensation under the heading of loss of dependency of the appellant, was required to follow the decision rendered by three judge Bench of this Court in Nicolletta Rohtagi case (supra) and earlier decisions wherein this Court after interpreting Sec. 170(b) of the M.V. Act, has rightly held that in the absence of permission obtained by the Insurance Company from the Tribunal to avail the defence of the insured, it is not permitted to contest the case on merits. The aforesaid legal principle is applicable to the fact situation in view of the three judge bench decision referred to supra though the correctness of the aforesaid decision is referred to larger, bench. This important aspect of the matter has been overlooked by the High Court while passing the impugned judgment and the said approach is contrary to law laid down by this Court.
In view of the aforesaid reasons, the Insurance Company is not entitled to file appeal questioning the quantum of compensation awarded in favour of the appellant for the reasons stated supra. In the absence of the same, the Insurance Company had only limited defence to contest in the proceedings as provided under Sec. 149(2) of the M.V. Act. Therefore, the impugned judgment passed by the High Court on 13.1.2012 reducing the compensation to 4,20,000/- under the heading of loss of dependency by deducting 50% from the monthly income of the deceased of Rs. 5,000/- and applying 14 multiplier, is factually and legally incorrect. The High Court has erroneously arrived at this amount by applying the principle of law laid down in Sarla Verma vs. Delhi Transport Corporation instead of applying the principle laid down in Baby Radhika Gupta''s case (supra) regarding the multiplier applied to the fact situation and also contrary to the law applicable regarding the maintainability of appeal of the Insurance Company on the question of quantum of compensation in the absence of permission to be obtained by it from the Tribunal under Sec. 170(b) of the M.V. Act. in view of the aforesaid reason, the High Court should not have allowed the appeal of the insurance company as it has got limited defence as provided under Sec. 149(2) of the M.V. Act. Therefore, the impugned judgment and award is vitiated in law and hence, is liable to be set aside by allowing the appeal of the appellant.
Looking to the facts and circumstances of the case, and keeping in view the, relevant provisions of law as also the judgment of Hon''ble Apex Court rendered in the case of Josphine James (supra), I am in unison with the Findings, arrived at by the learned Tribunal. The Tribunal is found to have dealt with each and every aspect of the matter ad-longum and rightly passed the impugned judgment and award. Thus, I find no illegality or perversity in the impugned judgment and award passed by the Tribunal and hence, both the appeals filed by the Insurance Co. are hereby dismissed after confirming the judgment and award passed by the learned Tribunal. Stay applications also stand dismissed accordingly.