United India Insurance Company Limited vs T. Subrahmanyam Reddy and others

Motilal B. Naik, J

At the threshold itself, we felt that the appeal could be disposed of without issuing notice to the respondents. Therefor, we condone the delay of 16 days in preferring the appeal. Accordingly, CMP No.19460 of 1999 is ordered.

The appeal is filed against the award and decree of the Motor Accident Claims Tribunal-cum-IV Additional District Judge, Chittor at Tirupati passed in MVOP No.57 of 1998 dated 19-3-1999. Appellant, United India Insurance Company Limited, is the second respondent in MVOP No.57 of 1998 which was filed by the first respondent herein seeking a compensation of Rs.5,00,000/- for the injuries sustained by him in the accident which took place on 4-8-1996. The first respondent-petitioner who was working as a driver in the third respondent-Corporation, at the time of the accident, was driving the RTC bus bearing Registration No.AP 9Z 7427. It was the case of the first respondent-petitioner before the Tribunal below that while he was driving the said bus towards Bangalore and when he reached near Nalagampalle Crossroad, one Mini lorry with Registration No.AP03 U 756 came in the opposite direction in a rashed negligent manner, by overtaking a car, directly came and dashed against the bus driven by the petitioner on account of which one person travelling in the mini lorry died instantly and the petitioner sustained grievous injuries. The first respondent in the said OP who is the second respondent herein is the owner of the mini lorry and he remained ex parte. Appellant who is the second respondent in the MVOP contested the matter by filing counter.

The first respondent-petitioner examined himself "as PW1 and got marked Exs.A1 to A17. On behalf of the appellant-second respondent none was examined and no documents were marked.

The Tribunal below, on a consideration of the oral and documentary evidence, allowed the MVOP against the appellant and second respondent herein and passed an award for a sum of Rs.4,26,164/-with proportionate costs and subsequent interest at the rate of 12 per cent per annum thereon from the date of the petition till the date of realisation, by an order dated 19-3-1999, against which this appeal is filed.

Sri T. Mahender Rao, counsel appearing on behalf of the appellant-Insurance Company firstly contended that the Tribunal below awarded compensation to the first respondent-petitioner on the basis of Ex.A8-disability certificate, which was not proved. Counsel contended that the Medical Officer who issued Ex.A8 has not been examined to prove the same and yet the Tribunal below erroneously fixed the disability of the petitioner-claimant at 35% which, according to the Counsel, is unsustainable. It is secondly contended that the Tribunal below granted compensation for the present loss of income to the petitioner-claimant from 4-8-1996 for 30 months and again granted Rs.16,160/-towards loss of pay for four and half months from 17-10-1996 to 5-3-1997, which according to the learned Counsel, amounts to duplication in awarding compensation. It is lastly contended by the learned Counsel that the Tribunal below erred in awarding an amount of Rs. 1,92,901 /- towards present loss of future earnings though the petitioner-claimant did not produce any documentary evidence to show that his salary to the extent of 35% is reduced on account of the disability sustained by him. Learned Counsel, therefore, urged before us to set aside the impugned award passed by the Tribunal below on these three grounds and allow this appeal.

In Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, , the Supreme Court while considering the ambit of Section 170 of the Motor Vehicles Act, 1988 held that the Insurance Company can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 of the said Act arc found to be satisfied, viz., (a) if there is a 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 failed to contest the claim. The Supreme Court further held that the Insurance Company has to obtain an order in writing from the Tribunal and 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. By holding so, the Supreme Court ruled that the Insurance Company was not entitled to file an appeal on merits of the claim amount which was awarded by the Tribunal.

Keeping in view the decision of the Supreme Court cited (supra), we proceed to examine the contentions raised by the Counsel appearing on behalf of the appellant-Insurance Company before us. A careful reading of the impugned award shows that on behalf of the appellant-Insurance Company, no effort was made before the Tribunal below to contend that Ex.A8 the disability certificate cannot be relied upon as it was not proved by the Medical Officer who issued it. Therefore, we are of the view that the tenor of the arguments and the grounds raised on behalf of the appellant-Insurance Company are in the nature of attacking the impugned award on merits on the question of awarding compensation, which is only available to the insurer i.e., owner of the vehicle but not to the Insurance Company. Admittedly, the insurer - owner of the vehicle has not preferred any appeal against the impugned award. In the light of the decision of the Supreme Court cited (supra), the appellant-Insurance Company is not entitled to file an appeal on merits of the claim amount which was awarded by the Tribunal.

For the foregoing reasons, the appeal filed by the appellant-Insurance Company is untenable and it is accordingly dismissed.