United India Insurance Co. Ltd. vs Shanti Prasad and Others

Gopal Prasad, J.—This Miscellaneous Appeal is directed against Prasad, J. the judgment and award dated 29th April, 2002, passed by Mahendra Narain Singh, IIIrd Addl. District Judge, Bhagalpur, in Claim Case No. 49 of 2001, by which allowed the claim worth Rs. 11,79,704.00 (Rupees Eleven lakhs seventy nine thousand seven hundred four) only with interest @ 8% till March, 2001 and 7% thereafter after realising of the amount, Advocate Fee Rs. 250/- and Advocate Clerk Fee Rs. 50/-. The case of the claimant is that deceased Gagan Bihari Prasad while traveling on the Bus bearing BRC 2996 on 2nd October, 2000, met with an accident when the bus collided with a tree due to rash and negligent driving of the driver and succumbed to the injury. The claim petition filed in which the bus driver appeared and filed a rejoinder contested the claim and asserted that vehicle was insured and even produced the driving licence of the driver and road permit.

Several opportunity was given to the Insurance Company after due notice, but no written statement was filed on behalf of the Insurance Company and finally five issues were framed as follows:

(i) whether the claim of the petitioner is maintainable.

(ii) whether there is any cause of action,

(iii) whether the accident took place due to rash and negligent driving of the vehicle,

(iv) whether the Insurance Company is liable to pay

(v) Whether claimant entitled to relief.

On the issues framed parties adduced evidence. After considering the evidence and submissions of the parties, the Tribunal held that accident took place due to rash and negligent driving by the driver of the bus. It further held that Insurance Company is liable to pay compensation and it is not a case of contributory negligence. The Tribunal further held that basic salary of the deceased was Rs. 5700/-, DA. Rs. 10,374/-, Medical Allowance Rs. 50/- and Interim Relief Rs. 1080/- and hence he was getting Rs. 17,200/- per month and taking this amount as monthly income yearly income was assessed as Rs. 2,06,448/- and further taking the age of the claimant multiplier of 18 was taken for computing the claim on the basis of this system of taking into consideration, 8 units finally 2 units was deduced and hence total comes to Rs. 11,79,704/- and odd was considered the quantum to be payable to the claimant.

Being aggrieved with the judgment and award of the Tribunal the Insurance Company has preferred this appeal challenging the finding recorded by the Tribunal on quantum, contributory negligence and dependency of the claimant on deceased.

However, at the outset learned counsel for the respondent raised a preliminary objection about the maintainability of appeal preferred by the Insurance Company challenging the quantum of compensation, contributory negligence and dependency of claimant on deceased as is not open to insurer to challenge the award by tribunal when condition precedent of taking permission as specified u/s 170 of Motor Vehicle Act has not been satisfied and no permission has granted by Tribunal and hence is not liable to raise these issues and is only liable to resist the claim u/s 149(2) of Motor Vehicle Act the statutory objection regarding the violation of the term of policy and can not be allowed to raise the issue of quantum or contributory negligence and dependency and has relied upon decision in National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, , National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, , and National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others,

Learned counsel for the Insurance Company, however, submitted that there are several irregularities and illegalities on the face of the impugned order of the Tribunal. The Tribunal while deciding the quantum took the gross income, but not considered the deduction in gross salary and deduction for income tax to find out the net salary for computing the quantum as the dependency can be assumed on the net salary and not on gross salary. It has further been pointed out that the age of victim was held as 57 years and was to retire at the age of 58 years, so was only entitled to full salary for a year @ 1700/- per month, but after attaining the age of 58 years his salary may have been reduced to half of the salary as he was only entitled to pension after one year and hence, contend that the mode of calculating and assessing the quantum of compensation suffer from illegality and irregularity and has been challenged and relied on decision reported in Anita Devi and Others Vs. Satyendra Narain Singh and Others, and The Oriental Insurance Company Limited Vs. Meena Variyal and Others, : The Oriental Insurance Company Limited Vs. Meena Variyal and Others, : The Oriental Insurance Company Limited Vs. Meena Variyal and Others, : The Oriental Insurance Company Limited Vs. Meena Variyal and Others, .

It has further been contended that the preliminary objection raised that insurer could not raise the question of quantum and contributory negligence and dependency in appeal but the illegality is apparent on face of the impugned order. Hence the appellant can not be remediless and it has further been contended that if miscellaneous appeal is prohibited on ground of quantum, contributory negligence and dependency, then miscellaneous appeal may be converted into civil revision to grant relief and relied upon decision in Sadhana Lodh Vs. National Insurance Company Ltd. and Another,

Hence, on respective submission the question for consideration whether the appellant who is insurer can challenge the finding on quantum, contributory negligence and dependency when permission has not been granted by the Tribunal to contest u/s 170 of Motor Vehicle Act and whether the relief can be granted by converting the miscellaneous appeal into civil revision.

However, taking into consideration the fact that the case of the claimant that deceased Gagan Bihari Prasad while traveling in the bus met with an accident due to rash and negligence driving of the bus by the driver of the bus. The said vehicle was insured and in claim petition, owner of the bus and insurer were made party. The owner and driver appeared and filed their written statement asserting that the vehicle was insured and the driver had valid licence.

However, the Insurance Company did not prefer to file a written statement, though, from perusal of the record, it appears that only a rejoinder petition has been filed by the Insurance Company against the petition of claimant for interim compensation filed u/s 140 of the M.V. Act. But Insurance Company neither filed any W.S. in the case nor the Insurance Company even cross examined the witness as apparent from perusal of the deposition nor even filed any petition u/s 170 of M.V. Act for permission to contest on ground that claimant and insured are in collusion.

In the evidence of A.W. 1. Anil Kumar, there is specific mention that on repeated call no one appeared on behalf of the Insurance Company. In the evidence of A.W. 2, 3 and 4 also there is no mention about cross examination by the Insurance Company. Hence, there is no material to suggest that even an implied consent sought for on behalf of insurer or granted by the Tribunal.

However, under the facts and circumstances, the question raised is "Is it open to the insurer to prefer appeal against the award of tribunal questioning the quantum of compensation as well as finding as regard the negligence of the offending vehicle". The point raised is not res integra. The same point raised in decision in Nicolletta Rohtagi, (supra). The fact of that case that accident took place in which one person was dead. On the claim by the dependent of deceased, the Tribunal awarded compensation of Rs. 13,13,150 with interest @ 20% per annum. The appeal preferred against the award was dismissed by the High Court. Against the said judgment of High Court, an appeal was preferred before Supreme Court. Since, two decisions of two Judges Bench in Smt. Rita Devi and Others Vs. New India Assurance Co. Ltd. and Another, and United India Insurance Co. Ltd. Vs. Bhushan Sachdeva and Others, , had contrary view, hence the matter was referred to be decided by three Judges Bench of Apex Court and considering all the relevant provisions of 147,149,170,173 of Motor Vehicle Act held that it is not open to the insurer to prefer an appeal questioning the quantum of compensation and finding of negligence if permission has not been granted u/s 170 of Motor Vehicle Act. It is relevant to quote para 25, 26, 27 of the decision reported in National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, ;

(25) We have earlier noticed that motor vehicle accident claim is a tortuous claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victim of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.

(26) For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made, or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, Implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 are satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has'' not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Section 173 of the 1988 Act, the same would go contrary to the scheme and object of the Act.

(27) This matter may be examined from another angle. The right of appeal is not an inherent right or common law right, but is a statutory right. If the law provides that an appeal can be filed on limited grounds, the grounds of challenge cannot be enlarged on the premise that the insured or the persons against whom a claim has been made have not filed any appeal. Section 149(2) of the 1988 Act limits the insurer''s appeal on those enumerated ground and the appeal being a product of the statute, it is not open to an insurer to take any plea other than those provided in Section 149(2) of the 1988 Act. The view taken in United India Insurance Co. Ltd. v. Bhushan Sachdeva (supra) that a right to contest would also include the right to file an appeal is contrary to well-established law that creation of a right to appeal is an act which requires legislative authority and no court or tribunal can confer such right, it being one of limitation or extension of jurisdiction.

Hence the Hon''ble Apex Court held that Insurance Company has no right of appeal to challenge the award on merit unless condition precedent specified in Section 170 of the Motor Vehicle Act, 1988 are satisfied. Where permission is erroneously rejected, insurer can challenge only that part of order by filing appeal as well as on ground specified in Section 149(2). So far ground for obtaining compensation by fraud, insurer may apply to the Tribunal as fraud vitiates the entire proceeding, but it is not permissible for insurer to file appeal questioning the quantum as well as finding of negligence or contributory negligence.

In decision reported in 2009 (12) SCC (sic) the fact remained that permission granted by Tribunal to contest u/s 170 of Motor Vehicle Act, but while granting permission did not assign any reason so the order granting permission challenged on ground that reason has not been assigned. The Apex Court took judicial notice to fact that several false claims are filed by the claimants in collusion with the owner and raised a question whether it is proper to prohibit the insurer to contest the claim of claimant as ultimately it is insurer who has to pay and invite serious consideration, particularly by Parliament and the Law Commission for provision allowing the insurer to contest the claim by insurer on those grounds for petitioner in trial and appeal and the learned counsel on these observations submitted before this Court in the case at hand to allow the insurer to raise in appeal the issue what is prohibited u/s 170 of Motor Vehicle Act.

However, Parliament and Law Commission may consider introducing provision that insurer may contest but this Court cannot usurp the function of legislature to allow the insurer to maintain appeal on those ground which is prohibited by law. The learned counsel for the appellant placed reliance on the basis of the observation to grant for permission and contest. However, it is not for the court but for legislature to consider.

The same question arose in decision reported in 2010 (3) PLJR 1003 (supra). However relying on decision in National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, , it was held that insurer cannot be permitted to file appeal on ground other than 149(2) of Motor Vehicle Act.

The same question also arose in Gajendra Narayan Singh Vs. The State of Bihar and Others, whether the appeal at the instance of insurer challenging the quantum of compensation is maintainable u/s 173 of the Motor Vehicle Act when permission not granted u/s 170 Motor Vehicle Act and held that insurer cannot be permitted to challenge the award on that ground if permission has not been granted by Tribunal to contest as provided u/s 170 of Motor Vehicle Act.

However, the learned counsel for the appellant has further relied on second limb of argument that if appeal is barred then for the illegality of the order by Tribunal apparent on face of it, the appellant cannot be remediless and then miscellaneous appeal be converted into civil revision. It has further asserted that relief has been granted in Civil Revision relied on decision reported in National Insurance Co. Ltd. Vs. Madhuri Kuer, . However in decision reported in New India Assurance Co. Ltd. Vs. Savitri Devi and Others, neither such issues were raised nor decided and hence it is not an authority on the point and if neither such issue raised not decided that is limited to that case only and cannot be an authority to held that revision lie as it is like a rail road ticket valid for the day i.e. that is limited to those case and no inference can be drawn on that basis that revision lies.

However, the argument advanced by the learned counsel for the appellant that if appeal is not maintainable then appellant cannot be remedyless, but the appeal be converted into civil revision to grant relief, the same argument was advance in decision reported in Branch Manager, National Insurance Co. Ltd. Vs. Arjun Prasad and Others, . The fact remained in that case that the Insurer preferred appeal challenging the quantum and in appeal the objection taken by respondent that appellant having not taken permission to contest from Tribunal, he is not entitle to challenge the award on quantum and contributory negligence and similar argument advance that if miscellaneous appeal is not maintainable then the appeal be converted into civil revision to grant relief relying on observation of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, . The said contention was rejected. It is relevant to quote para 11 and 12 of the Branch Manager, National Insurance Co. Ltd. Vs. Arjun Prasad and Others, ;

(11)...........In this case, the question for consideration was whether the petition under Articles 226/ 227 of the Constitution of India against an award made by the Tribunal under the provision of the Act is maintainable and the Supreme Court held that the right of appeal being a statutory right on limited grounds, the grounds of challenge cannot be enlarged by filing a writ under Articles 226/ 227 of the Constitution. Learned counsel of appellant relied upon the observation made by the Supreme Court in this judgment that where a remedy by way of appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court u/s 115 of the CPC but he has not taken note of the fact that in the same para which is para No. 6 of the judgment from where he has picked up the aforesaid observation, the Supreme Court has observed as follows;

Right of appeal is a statutory right and where the law provided remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/ 227 of the Constitution of India on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided u/s 149 (2) of the Act (See National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others (supra). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution.

(12) After observing as above, the Supreme Court observed that if remedy by way of appeal has not been provided for against the order and judgment of a District judge, in that case remedy will be to file a revision before the High Court u/s 115 C.P.C. Giving a combined reading to the aforesaid observations, it is clear that the verdict of the Supreme Court is that where the law provided remedy by filing an appeal on limited grounds, those grounds cannot be enlarged by filing a writ petition. If a writ is not maintainable how any party can be allowed to file a revision enabling him to take grounds to challenge award which are not enumerated in Section 149 (2) of the Act.

(13) it is not a case where no remedy by way of an appeal has been provided. Had it been so, learned counsel of appellant would have been right in his submission that in such circumstances, remedy was to file revision. Here the case is quite different. Remedy to appeal is provided u/s 173 of the Act but since Section 149 (2) of the Act limits the ground of an insurer for challenging the award for contesting the claim on some ground mentioned in this section the appeal will also be confined to these grounds because in appeal an insurer cannot take any other ground to challenge the award. I, therefore, find no merit in the argument of learned counsel of appellant that appellant be permitted to convert this appeal in a civil revision." and hence point raised has well been discussed and answered in decision reported in Branch Manager, National Insurance Co. Ltd. Vs. Arjun Prasad and Others, as quoted above.

However, the learned counsel for the appellant has further placed reliance on the observation made in 2010 (2) PUR 954 However, it was a case in which the question for consideration whether the civil revision is maintainable against interlocutory order in view of newly substituted proviso of sub section 1 of Section 115 of C.P.C. but the fact and circumstance of decision reported in 2010 (2) PLJR 954 is not applicable to the facts and circumstance of the case at hand.

Hence the point raised has well been discussed and answered in National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, However, it is well settle that right of appeal is a statutory right. It is neither an inherent right or common law right. If the legislature have provided that appeal can be filed on limited ground the ground of challenge cannot be enlarged and allowing the ground to raise by converting the miscellaneous appeal in civil revision amount to enlarging the jurisdiction which amounts to transgressing in legislative function and making the provision of Section 170 of Motor Vehicle Act 1988 as superfluous permitting the insurer to raise those issues what is prohibited by the legislature which is not permitted in law. Hence the appellant cannot be permitted in law to convert appeal into civil revision. Hence the appeal is not maintainable accordingly the appeal is hereby dismissed.