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Judgment
V.B. Gupta, J.—Present appeal has been filed by the appellant-Insurance Company u/s 173 of the Motor Vehicles Act, 1988 (for short as ''Act'') against the Judgment dated 10th April, 2008 passed by Ms. Neena Bansal Krishna, Judge, MACT, Delhi (for short as ''Tribunal'').
The brief facts of the case are that on 29th June, 2007, deceased Sikandar was on his duty as conductor-cum-helper on bus bearing No. DL-1PB-2303. When the bus stopped at red light signal at Kodia Pull, the deceased took out his head for spitting, when he was hit by a speeding bus bearing No. DL-1PA-2917 which came from behind. Thereafter, Sikandar was taken to Trauma Centre, Delhi, where he was declared as dead.
The offending bus was being driven by Respondent No. 3, Narender Singh while Respondent No. 4, Tej Pal Singh is the owner of the bus and the bus was insured with appellant-Insurance Company.
Respondents 3 & 4, driver and owner have filed their written statement in which their defence was that the answering Respondent has not caused any accident as alleged. It was stated that the offending vehicle might have caused the accident and might have run away from the spot after causing the accident but the number of the vehicle of the answering Respondents was noted down instead of the offending vehicle and, thus, the vehicle of answering Respondents has been implicated by the police, wrongly in this case. However, the vehicle in question was insured with the appellant.
Vide impugned judgment, the Tribunal passed an award in the sum of Rs. 7,55,000/- along with interest @ 7.5% p.a. from the date of institution of the petition till the date of payment in favour of Respondents 1 & 2, payable by Respondents No. 3 and 4, to be indemnified/deposited by the appellant-Insurance Company.
It has been contended by the learned Counsel for the Appellant that the entire reliance was placed by the Tribunal only on the evidence of PW3, who has clearly deposed that the deceased himself took his head out when the accident happened, and the Tribunal has failed to draw inference of the same.
Other contention is that it is a case of contributory negligence and the Tribunal has placed reliance upon the site plan which is Ex.R3W2/2, which does not clearly support the testimony of the eye witness and shows that the bus in which the deceased was sitting was not parked properly on the road, which in fact had caused the accident.
The claimants examined PW3 Abdul Salam as eye witness of the accident, who in his examination-in-chief deposed as under;
On 29.6.2007, I had boarded a bus from Darya Ganj for Old Delhi Railway station. At about 4 p.m., the bus had stopped at traffic signal at kodia pul on the right side of the road. Bus plying on route No. 405, bearing No. 2917 came from behind and overtook the bus from the left side of the bus at a very close distance because of which it hit into the head of the conductor who had barely taken out his head out of window to spit. The conductor sustained injuries on his head and the injured conductor was shifted to trauma centre in a TSR. The police recorded my statement. I had given the number of the offending bus to the police as I had noted the same while it was crossing our bus. The accident took place due to the negligence of the bus driver of offending bus plying on route No. 405. The offending bus had sped away from the scene of accident after causing the same.
In his cross examination by the counsel for Respondents No. 3 and 4 herein, PW3 stated that he had actually seen the accident taking place, as he was sitting on a seat parallel to the seat of the conductor on the driver side. He had also noted the number of the bus.
A suggestion was given to this witness that the bus plying on route No. 405 had to take left turn and it was while taking a left turn, that it had crashed alongside the other bus and hit the conductor.
From this cross-examination on behalf of Respondents No. 3 and 4, it is clear, that on the one hand, they have denied the factum of accident and on the other hand, it had been suggested to the PW3, that while taking a left turn, it had hit into the bus and had hit the conductor.
The copy of the site plan Ex. R3W2/2, supports the testimony of PW3 i.e. eye witness of the accident in question. The FIR, copy Ex.R3W2/1, which has been recorded on the statement of PW3, also proves the presence of PW3 on the spot.
For the reasons best known to Respondent No. 3 i.e. driver of the offending vehicle, he did not appear in the witness box to prove his defence, about his non-involvement in the accident.
Thus, in view of the above evidence, the Tribunal has rightly relied upon the testimony of PW3 and held that deceased died in the accident caused due to the rash and negligent driving of the bus, by Respondent No. 3.
Even if the deceased had taken out his head out of the window to spit, the fact remains that the driver of offending bus was required to maintain a safe distance from the other vehicles on the road in order to avoid such untoward accidents.
Lastly, in the present case no permission u/s 170 of the Act has been obtained by the Appellant from the Tribunal.
Section 170 of the Act reads as under:
Impleading insurer in certain cases.-Where in the course of any inquiry, the Claims Tribunal is satisfied that
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has filed to contest the claim,
it may, for reasons to be recorded 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, without prejudice to the provisions contained in Sub-section (2) of Section 149, 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 Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, the Apex Court while dealing with the question as to whether Respondent No. 1-Insurance Company could have filed an appeal in the High Court against the award of the Motor Accidents Claims Tribunal and got the quantum of compensation reduced when the insured had not filed such appeal and when Respondent No. 1- Insurance Company had not moved the Tribunal u/s 170 of the Act for getting the right to contest the proceedings on merit, held as under;
It clearly shows that the Insurance Company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the Insurance Company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined Respondent No. 1- Insurance Company in the Claim Petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance. That was not an order of the Court itself permitting the Insurance Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, Respondent No. 1- Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal.
In National Insurance Co. Ltd. and Another Vs. Smt. Balbir Kaur and Others, the Punjab and Haryana High Court held as under;
If the insurance company does not plead before the Tribunal that there was any collusion between the claimants and the person against whom the claim was made and does not ask the Tribunal to pass an order u/s 170 of the Act allowing it to contest the claim on merits it will have no right to contest the same on the grounds other than those mentioned in Sub-section (2) of Section 149 of the Act. In the case before us, the insurance company did not plead collusion between the claimants and the Insured and there is no order passed by the Tribunal allowing the insurance company to contest the claim on merits. As a matter of fact, the insurance company did not make any prayer to the Tribunal to allow it to contest the claim on all or any of the grounds available to the insured. Not having done so before the Tribunal, we are of the view that the insurer cannot be allowed to challenge the award on merits for the first time in appeal before this Court. The application filed by the Appellant u/s 170 of the Act seeking permission to contest the claim on merits itself is, thus, misconceived and not maintainable as such a plea could only be made before the Tribunal and not before this Court as is clear from the plain language of the section.
Thus, it is well-settled that when permission of the Tribunal to contest the claim on merits had not been obtained as per requirement, the insurer cannot be permitted to challenge the award on merits.
Under these circumstances, no infirmity can be found with the impugned judgment of the Tribunal and thus, there is no merit in this appeal and the same is, hereby, dismissed with costs of Rs. 5,000/.
Costs be deposited by way of cheque in the name of Registrar General of this Court within four weeks from today.
Trial court record be sent back forthwith.
List on 3rd November, 2008 for compliance.