JUDGMENT Dabholkar N.V., J.
1. The two appeals challenge judgment and award passed by Motor Accident Claims Tribunal, Parbhani, in MACP No. 255/1996 on its file, delivered on 6.12.1999. First Appeal No. 248/ 2000 is by insurance company of one of the two vehicles involved in the accident i.e. goods truck No. MH-13/B-4536. The other vehicle involved in the accident was Maruti van in which deceased was travelling i.e. Maruti van No. MH-26/9905.
First Appeal No. 60/2003 is by original claimants, who are parents of deceased Dilipkumar.
2. The incident in question is said to have taken place on 17.9.1996 at about 8 p.m. at village Vaksali near Lonawala on Bombay-Pune road. The deceased had then arrived from Middle East where he was serving and was travelling in the Maruti van towards Pune alongwith his brother and friends. The Maruti van met with an accident with Truck No. MH-13/B-4536 and the deceased Dilipkumar died on the spot.
3. Learned Member of the Tribunal has found only truck to be the vehicle guilty of rashness and negligence. As against claim of Rs. 33.20 lakhs and odd, compensation of Rs. 7,50,000/- inclusive of "no fault liability" with interest at 12% p.a. from the date of filing of the application till payment is awarded. Taking into consideration ages of parents, the trial Court had applied multiplier of 11. He has taken that the deceased could have spared an amount of Rs. 6,000/-per month for his parents by taking a note of the fact that during 3 preceding years, he had sent an amount of Rs. 3,50,000/- to his parents from his salary of 2500 Dinars in the Middle East.
4. The appeals were on Board yesterday when Advocate Shri A.H. Kasliwal was not available. Presence of his junior Advocate Mrs. Netrali Jain was secured through Court Chobdar. As she informed that Advocate Shri Kasliwal was out of town yesterday and would be available today, matters were fixed for final hearing today. When the matters were called out in the afternoon session, neither Advocate Shri Kasliwal nor Advocate Mrs. Jain were available inspite of search through Court Chobdar. However, Advocate Miss. Mamta Warma appeared and prayed for adjournment when we had made it clear to her that we are not inclined to grant adjournment. Consequently, none appeared for the appellants in first appeal No. 60/2003 and the same is required to be and is being dismissed in default.
5. So far as first appeal No. 248/2000 is concerned, it is not in dispute that owner and driver of the goods truck, which was insured with appellant insurance company namely M/s United India Insurance Company Ltd., had remained ex-parte. In other words, inspite of service, they had not contested the claims. On our enquiry, Advocate Shri Upadhye, in all fairness, has conceded that no application under Section 170 of Motor Vehicles Act, 1988, was preferred by his insurance company before the trial Court seeking permission to contest the petition with all defences available also to the owner in view of non-appearance of owner and driver. Our attention is drawn by Advocate Shri Darak, who represents the other vehicle, to judgment of the Supreme Court in the matter of National Insurance Company Ltd. v. Nicolletta Rohtagi A.I.R. 2002 S.C.W. 3899 and more particularly contents from paras 25, 31 and 32. For the convenient reference, although the learned Counsel have taken us through major portion of the reported judgment, we are reproducing only part from the first head note, which suggests against the maintainability of present appeal filed by insurance company:
Even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as finding as regards negligence or contributory negligence of the offending vehicle unless the conditions precedent specified in Section 170 of 1988 Act is satisfied.
6. We have gone through the written statement that is filed by appellant insurance company before the Tribunal. In paras 1 to 19, it has denied all the contentions raised by the claimants in the petition, para by para. Paras 20 to 25 are captioned as additional statement and, thus, separated from other part of written statement, which constitutes mainly the denials. On going through entire written statement, we have not been able to find any defence raised by the insurance company, which would attract Section 149(2) of the Motor Vehicles Act. Only a passing reference to such defence is available in para 25 wherein insurance company has stated that the truck driver was not holding driving licence. On going through the impugned judgment, there does not appear any attempt on the part of insurance company to prove such a contention.
7. Taking into consideration the ratio laid down by the Supreme Court, insurance company could not have contested the claim before the Tribunal on all the defences available to the owner such as contributory negligence or quantum of the compensation awardable. Since there is no prayer in the written statement, even by suggestive sentences that in view of absence of owner and driver inspite of service, insurance company may be allowed to raise all the defences, it can not presumed even by implications that appellant insurance company is granted permission to raise all the defences as required by Section 170. In fact, as can be seen from the text of Section 170 and the ratio laid down by the Supreme Court, the Tribunal is required to record a reasoned order before allowing the insurance company to raise all the defences beyond the scope of Section 149(2) of M.V. Act, 1988, as are available to the owner and driver of the vehicle. This is a case wherein present insurance company could not have been allowed to raise any other defences except the one regarding the driver of the truck not holding driving licence, which was raised in the concluding sentence in the written statement. Consequently, appeal, if any, by the insurance company could have been only on this ground. Advocate Shn Upadhye has tried to meet the argument raised by Advocate Shri Darak against the maintainability of the appeal by referring to Division Bench judgment of Bombay High Court reported at Oriental Fire & General Insurance Company Ltd. v. Rajrani Surendrakumar Sharma and Ors. 1989(3) Bom. C.R. 326 : 1990 A.C.J. 60. He has relied upon contents in para 9, which read thus:
Therefore, if the person against whom the claim is made has failed to contest the claim, the insurer gets a 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. Section 110-C(2-A) provides that in such a case if the insurer is not a party, the Court may, for reasons to be recorded by it in writing, direct that the insurer who may be made liable in respect of such a claim shall be impleaded as a party. The insurer so impleaded thereupon gets the right to contest the claim on all grounds available to the person against whom the claim is made.
8. We are afraid, the Division Bench view of Bombay High Court can not be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of Section 170 of the Motor Vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the Claim and, thus, Clause (b) of Section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application under Section 170, for the reasons to be recorded in writing by the Tribunal.
9. In view of this, the appeal filed by the insurance company is not maintainable and hence the same is dismissed accordingly.
In view of dismissal of both the appeals, no orders as to costs.