The New India Assurance Company Limited vs Smt. Suman and Others

Amitava Lala, J.—This appeal has been preferred by the Insurance Company challenging the judgment and order dated 7.1.2006 passed by the concerned Motor Accident Claims Tribunal, Etawah, in spite of rejection of the application u/s 170 of the Motor Vehicles Act, 1988.

We have considered the issue of right of appeal in our judgment reported in 2007 (4) ADJ 101 (Oriental Insurance Co. Limited v. Smt. Manju and Ors.) following the Supreme Court reported in National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, Therefore, no new case is available therein excepting very few which are discussed herein.

Mr. Arvind Kumar, learned Counsel appearing in support of the appellant, contended before this Court that the order which has been passed rejecting the application on 20.9.2004 is falicious in nature. Either the application will be rejected or the same will be allowed. There is no scope of holding that the same is not maintainable as Insurance Company has already examined the witnesses. He further contended that the original claim petition was filed both u/s 163-A and u/s 166 of the Motor Vehicles Act 1988, therefore, the same is required to be dismissed as a matter of course. It is a question of maintainability of the claim petition, therefore, the Insurance Company has a right independent of the rejection of the application u/s 170 of the Act. He relied upon the judgment of the Division Bench of this Court in F.A.F.O. No. 513 of 2007, National Insurance Co. Limited v. S.L Sharma dated 19.3.2008.

Mr. R.K. porwal, learned Counsel appearing for the claimants, contended before this Court that Section 170 of the Act is provided for specific purposes. Such type of application cannot be made mechanically. In the instant case, the application was made after examination of the witness is over. Therefore, the Court held that there is no necessity of permitting Section 170 to the Insurance to contest the claim. He has further said that there is existing right of an Insurance Company to examine any witness provided the cause falls u/s 149(2) of the Act but not beyond the same. The Tribunal considered this part and only thereafter the application was rejected.

He also argued before this Court that definitely an application will be made either u/s 163-A or Section 166 of the Act but if the claim petition is filed referring two Sections it is to be seen by the tribunal under which Section the parties are required to be proceeded before the Tribunal. In the present case rash and negligent driving of the vehicle was called upon to prove by the claimants. Therefore, obviously the claim petition is to be treated u/s 166 but not u/s 163-A. It is also stated that for the purposes of the applicability of the multiplier as a guidance, the second schedule under such Section was considered not for any other purposes.

Mr. Arvind Kumar contended that since the owner was not examined, therefore, the Insurance Company has right to contest to which the Tribunal fell into error. However, upon going through the judgment and order, we find that the owner was produced for examination. Therefore, factually such statement is incorrect.

Therefore, taking into totality of the matter, we are of the view that the way of rejection of the order may be defective or irregular but it cannot be said to be illegal for the purpose of intervention of the Appeal Court. In the case of an irregular rejection, there Is every right of the insurance to make a revislonal application as we have already held in the case of Manju Devi (supra). We do not find any cogent reasons to interfere with the order at the appellant Insurance Company independently. So far as the other point as agitated that collective application u/s 163-A and u/s 166 is so fundamental in nature if Insurance Company has right to oppose, we are of the view that it is for the Court to treat the claim petition under either of the Sections but not to reject solely on such ground.

Therefore, when the Tribunal has proceeded with the proof of rash and negligence of the driver, it has to be construed that the Court proceeded u/s 166 of the Act but not u/s 163-A of the Act. Therefore, in totality, we do not find any prudent cause to support the contentions of the appellant.

Hence the appeal is liable to be dismissed and accordingly, is dismissed, however, without imposing any cost.

Incidentally, the appellant-insurance company prayed that the statutory deposit of Rs. 25,000/- made before this Court for preferring this appeal be remitted back to the concerned Motor Accidents Claims Tribunal as expeditiously as possible in order to adjust the same with the amount of compensation to be paid to the claimants, however, such prayer is allowed.