Oriental Insurance Co. Ltd. vs Devram Pandurang Waghmare And ...
2006 Latest Caselaw 761 Bom

JUDGMENT

Abhay S. Oka, J.

1. Heard the Advocates appearing for the parties. Preliminary objection is raised by the learned Advocate appearing for the respondent No. 1 that the appeal at the instance of the appellant-Insurance Company is not maintainable in view of the decision of the Apex Court in the case of National Insurance Co. Ltd. v. Nicolleta Rohtagi .

2. The appeal is preferred by the appellant-Insurance Company for challenging the judgment and award made in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988. Admittedly, the appellant was not granted a leave under Section 170 of the Motor Vehicles Act, 1988 and there is no defence raised which is covered by Sub-section (2) of Section 149 of the said Act of 1988.

3. Mr. Vidyarthi appearing for the appellant placed reliance on decision of the Apex Court reported in 1958-65 ACJ 1, British India General Insurance Co. Ltd v. Captain Itbar Singh and Ors., and submitted that in the contract of insurance itself a right is reserved in favour of the appellant-Insurance Company to defend the action against the insured on all defences available to the insured. He, therefore, urged that the right of the insurer to prefer an appeal cannot be restricted. He submitted that in the case of National Insurance Co. v. Nicolleta (supra), this decision of the Apex Court which is of a Larger Bench consisting the three Hon'ble Judges was not considered.

4. I have considered the submissions. In a recent decision of the Apex Court in the case of R. Manakatti and Anr. v. M. Subramanian and reported in 2006 (2) T.A.C. 515, the Apex Court relied upon the decision in case of National Insurance Co. Ltd. v. Nicolleta Rohtagi (supra). In the said decision the Apex Court has taken a view that right of insurer to prefer an appeal under Section 173 of the said Act of 1988 was a limited right and that right can be exercised in a case where leave under Section 170 of the said Act is granted or in a case where Insurance Company is relying upon provisions of Sub-section (2) of Section 149 of the said Act of 1988 for avoiding the liability to pay compensation. It must be noted that in the present case the insured filed written statement and had contested the claim petition. In this context, observations made by the Apex Court in paragraph No. 5 of the decision in the case of R.M. Mannakatti (supra) are relevant. The said observations reads thus:

5. In view of the aforesaid principles laid down by this Court, in the instant case since the owner of the vehicle contested the claim of the appellants, the insurer could hot prefer an appeal, even if the owner of the vehicle joined him as a party-appellant. Counsel for the respondent Insurance Company submitted that in this case his grievance is to the application of the multiple of 17 which was apparently incorrect. Since we have held that the appeal itself was not maintainable at the instance of the insurer, this cannot be examined by us.

5. It must also be noted here that decision of the Apex Court in the case of National Insurance Co. Ltd. v. Nicolleta Rohtagi (supra) has been consistently followed from the year 2002 and in the case of Sadhana Lodh v. National Insurance Co. Ltd. , a Bench of the Apex Court consisting of three Hon'ble Judges has approved the decision in the case of National Insurance Co. v. Nicolleta Rohtagi (supra). Thus, the position which emerges is that the appeal at the instance of the appellant-Insurance Company is not maintainable and the same is liable to be dismissed only on that ground. Hence, appeal is dismissed. No orders as to costs. The appellant will be entitled to withdraw sum of Rs. 25,000 deposited in this Court.