Bombay High Court
Bajaj Allianz General Insurance ... vs Tufel Habib Bagvan And Another on 7 June, 2016
Bench: Sangitrao S. Patil
(1) W.P. Nos. 2840 &
2970 of 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 2840 of 2013
District : Nandurbar
Bajaj Allianz General Insurance
Co. Ltd.,
Through its Branch Manager, .. Petitioner
2nd Floor, Rajendra Chamber, (Original
Adalat Road, Aurangabad. respondent no.2)
versus
1. Tufel Habib Bagvan,
Age : 21 years,
Occupation : Nil,
R/o. Shahada,
Taluka : Shahada,
District : Nandurbar.
2. Shaikh Afzal Shaikh Salim, .. Respondents
Age : Major, (No.1 - Original
Occupation : Business, Applicant No.1
R/o. Iqbal Chowk, Shahada, &
Taluka : Shahada, No.2 - Original
District : Nandurbar. Respondent No.1)
With
Writ Petition No. 2970 of 2013
District : Nandurbar
Bajaj Allianz General Insurance
Co. Ltd.,
Through its Branch Manager, .. Petitioner
2nd Floor, Rajendra Chamber, (Original
Adalat Road, Aurangabad. respondent no.2)
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(2) W.P. Nos. 2840 &
2970 of 2013
versus
1. Shahrukh Khan Mehboob Khan
Pathan,
Age : 22 years,
Occupation : Nil,
R/o. Shahada,
Taluka : Shahada,
District : Nandurbar.
2. Shaikh Afzal Shaikh Salim, .. Respondents
Age : Major, (No.1 - Original
Occupation : Business, Applicant No.1
R/o. Iqbal Chowk, Shahada, &
Taluka : Shahada, No.2 - Original
District : Nandurbar. ig Respondent No.1)
...........
Mr. Santosh G. Chapalgaonkar, Advocate, for the
petitioner in both petitions.
Mr. A.B. Gatne, Advocate, for respondent no.1
in both petitions.
Respondent no.2 served in both petitions (Absent).
...........
CORAM : SANGITRAO S.PATIL, J.
Date of reserving
the judgment : 29th April 2016
Date of pronouncing
the judgment : 7th June 2016
COMMON JUDGMENT:
1. Heard the learned Counsel appearing for the
(3) W.P. Nos. 2840 &
2970 of 2013
petitioner and the learned Counsel appearing for the
first respondents in both petitions. None appeared
for the second respondent though served.
2. Rule. Rule made returnable forthwith. By
consent of the learned Counsel for the parties, heard
finally.
3.
Both of these Writ Petitions are arising out
of the common orders passed by the learned Member of
the Motor Accident Claims Tribunal ["MACT", for short],
Shahada, whereby the request of the petitioner
[hereinafter called as "Insurer"], seeking permission to
cross examine the above-named first respondents (i.e.
the claimants) and their witnesses, came to be
rejected.
4. The claimants, who got injured in the same
incident that took place on 29.12.2009 at about 10.30
p.m., near village Korit on Nandurbar to Shahada
road, filed Claim Petition Nos. 121/2010 and
(4) W.P. Nos. 2840 &
2970 of 2013
122/2010, respectively, for compensation of Rs.
2,00,000/- and Rs. 20,00,000/-, respectively, vide
Section 166 of the Motor Vehicles Act, 1988 ["MV Act",
for short], on the allegations that the said incident
took place as a result of rash and negligent driving
of an Ape Rickshaw bearing registration No. MH-39/C-
6845, by respondent no.2, namely, Shaikh Afzal Shaikh
Salim. Both the claimants deposed before the MACT
and also produced one witness each in support of
their claims. The owner of the above numbered Ape
Rickshaw cross-examined them. The insurer filed
applications before the learned Member of the MACT,
under Section 170 of the MV Act, seeking permission
to cross examine the claimants and their witnesses.
However, the said applications were rejected on
01.11.2012 and 31.01.2013 respectively, on the ground
that the owner of the Ape Rickshaw contested the
claim petitions and cross-examined the witnesses.
The said orders have been assailed in these Writ
Petitions.
(5) W.P. Nos. 2840 &
2970 of 2013
5. The learned Counsel appearing for the
insurer submits that the above numbered Ape Rickshaw,
in fact, was not involved in the incident in
question. The incident took place on 29.12.2009.
The FIR was lodged in the Police Station on the next
day of the incident against an unknown vehicle
driver. There was no reference in the FIR of the
vehicle involved in the incident. Thereafter, the
owner of the Ape Rickshaw and respondent no.2 -
Driver, in collusion with each other, came with the
case that the above numbered Ape Rickshaw was
involved in the incident, in question. He submits
that the insurer was made a party - respondent to the
above numbered Writ Petitions. Therefore, the
insurer had a right to challenge the claims subject
matter of the said petitions by taking all the
grounds available in its defence, irrespective of the
fact that the owner had cross-examined the claimants
and their witnesses in order to make a show that he
was contesting the claims. In support of this
contention, he placed reliance on the judgment in the
(6) W.P. Nos. 2840 &
2970 of 2013
case of United India Insurance Co. Ltd. Vs. Shila Datta
and others, 2011 (10) SCC 509. He, therefore, submits
that the impugned orders may be set aside and the
insurer may be directed to be given an opportunity to
cross-examine the claimants and their witnesses by
taking all the grounds available to defend itself.
6. On the other hand, the learned Counsel
appearing for the claimants, relying on the judgments
in the cases of (i) National Insurance Co. Ltd.,
Chandigarh Vs. Nicolletta Rohtagi & others, AIR 2002 SC
3350; (ii) Rekha Jain & another Vs. National Insurance
Company Limited, (2013) 12 SCC 202 and (iii) Josphine
James Vs. United India Insurance Co. Ltd. & another, 2013
AIR SCW 6633, submits that the insurer cannot contest
a motor accident claim on merits, in addition to the
grounds mentioned in Section 149(2) of the MV Act for
avoiding its liability under the policy of insurance.
He submits that the owner of the above numbered Ape
Rickshaw contested the claim petitions by filing
written statements and cross-examining the claimants
(7) W.P. Nos. 2840 &
2970 of 2013
and their witnesses. Therefore, the insurer cannot
contest the claim on all the grounds proposed to be
taken by it. He supports the impugned orders and
prays that the Writ Petitions may be dismissed.
7. Before adverting to discuss the controversy
between the parties, it will be worthwhile to re-
produce here certain provisions of the MV Act, which
read as under :-
"149. Duty of insurers to satisfy judgments
and awards against persons insured in
respect of third party risks. - (1) If, after
a certificate of insurance has been issued
under sub-section (3) of section 147 in favour
of the person by whom a policy has been
effected, judgment or award in respect of any
such liability as is required to be covered by
a policy under clause (b) of sub-section (1) of
section 147 (being a liability covered by the
terms of the policy) or under the provisions of
Section 163-A is obtained against any person
insured by the policy, then, notwithstanding
that the insurer may be entitled to avoid or
cancel or may have avoided or cancelled the
policy, the insurer shall, subject to the
provisions of this section, pay to the person
entitled to the benefit of the decree any sum
not exceeding the sum assured payable
thereunder, as if he were the judgment debtor,
(8) W.P. Nos. 2840 &
2970 of 2013
in respect of the liability, together with any
amount payable in respect of costs and any sum
payable in respect of interest on that sum by
virtue of any enactment relating to interest on
judgments.
(2) No sum shall be payable by an insurer
under sub-section (1) in respect of any
judgment or award unless, before the
commencement of the proceedings in which the
judgment or award is given the insurer had
notice through the Court or, as the case may
be, the Claims Tribunal of the bringing of the
proceedings, or in respect of such judgment or
award so long as execution is stayed thereon
pending an appeal; and an insurer to whom
notice of the bringing of any such proceedings
is so given shall be entitled to be made a
party thereto and to defend the action on any
of the following grounds, namely :-
(a) that there has been a breach of a
specified condition of the policy, being one
of the following conditions, namely :--
(i) a condition excluding the use of the
vehicle --
(a) for hire or reward, where the
vehicle is on the date of the contract
of insurance a vehicle not covered by a
permit to ply for hire or reward, or
(b) for organised racing and speed
testing, or
(9) W.P. Nos. 2840 &
2970 of 2013
(c) for a purpose not allowed by the
permit under which the vehicle is used,
where the vehicle is a transport
vehicle, or
(d) without side-car being attached
where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a
named person or persons or by any person
who is not duly licensed, or by any person
who has been disqualified for holding or
obtaining a driving licence during the
period of disqualification; or
(iii) a condition excluding liability for
injury caused or contributed to by
conditions of war, civil war, riot or civil
commotion; or
(b) that the policy is void on the ground
that it was obtained by the non-disclosure of
a material fact or by a representation of
fact which was false in some material
particular.
(7) No insurer to whom the notice referred to
in sub-section (2) or sub-section (3) has been
given shall be entitled to avoid his liability
to any person entitled to the benefit of any
such judgment or award as is referred to in sub-
section (1) or in such judgment as is referred
to in sub-section (3) otherwise than in the
manner provided for in sub-section (2) or in the
corresponding law of the reciprocating country,
(10) W.P. Nos. 2840 &
2970 of 2013
as the case may be. "
"170. 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 failed 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."
8. In the case of Shila Datta (supra), the
Hon'ble Apex Court had the occasion to consider the
scope of the right of the insurer to contest the
claims on all grounds in addition to the grounds
mentioned in Section 149(2) of the MV Act. One of
the points urged by the Insurance Companies as re-
produced in para 3 of the judgment, is as under :--
(11) W.P. Nos. 2840 &
2970 of 2013
" There is a significant difference between
an insurer as a "noticee" (a person to whom a
notice is served as required by Section 149(2)
of the Act) in a claim proceedings and an
insurer as a party - respondent in a claim
proceedings. Where an insurer is impleaded by
the claimants as a party, it can contest the
claim on all grounds, as there are no
restrictions or limitations in regard to
contest. But where an insurer is not impleaded
by the claimant as a party, but is only issued a
statutory notice under Section 149(2) of the Act
by the Tribunal requiring it to meet the
liability, it is entitled to be made a party to
deny the liability on the grounds mentioned in
Section 149(2). "
After considering the judgment in the case of
Nicolletta Rohtagi (supra), amongst other cases, the
Hon'ble Apex Court held the above mentioned point in
favour of the Insurance Companies, as observed in
paragraphs 14 and 15 of the judgment reproduced
below:--
"14. When an insurer is impleaded as a party -
respondent to the claim petition, as contrasted
from merely being a noticee under Section 149(2)
of the Act, its rights are significantly
different. If the insurer is only a noticee, it
(12) W.P. Nos. 2840 &
2970 of 2013
can only raise such of those grounds as are
permissible in law under Section 149(2). But if
he is a party - respondent, it can raise, not
only those grounds which are available under
Section 149(2), but also all other grounds that
are available to a person against whom a claim
is made. It, therefore, follows that if a
claimant impleads the insurer as a party -
respondent, for whatever reason, then as such
respondent, the insurer will be entitled to urge
all contentions and grounds which may be
available to it.
15. The Act does not require the claimants to
implead the insurer as a party - respondent.
But if the claimants choose to implead the
insurer as a party, not being a noticee under
Section 149(2), the insurer can urge all grounds
and not necessarily the limited grounds
mentioned in Section 149(2) of the Act. If the
insurer is already a respondent (having been
impleaded as a party - respondent), it need not
seek the permission of the Tribunal under
Section 170 of the Act to raise grounds other
than those mentioned in Section 149(2) of the
Act."
9. In para 12 of the judgment, the Hon'ble Apex
Court specifically observed that the above referred
point had neither arisen for consideration in
Nicolletta Rohtagi's case, nor was it considered
therein.
(13) W.P. Nos. 2840 &
2970 of 2013
10. In view of the above judicial pronouncement
of the Hon'ble Apex Court, the insurer herein being
added as a party - respondent by the claimants, would
be entitled to take all possible grounds in its
defence without being bridled by the provisions of
Section 149(2) of the MV Act. It was not even
necessary for the insurer to file applications under
Section 170 of the MV Act seeking permission to
contest the claims on all the grounds and to cross-
examine with claimants and their witnesses, more
particularly when the insurer has come with a
specific defence that the above numbered Ape
Rickshaw, in fact, was not involved in the incident,
in question, and there has been collusion between the
claimants and the owner of the Ape Rickshaw to grab
money from the insurer.
11. In view of the legal position clarified in
the case of Shila Datta (supra), the judgment in the
case of Nicolletta Rohtagi (supra) and the judgments in
the cases of Rekha Jain (supra) and Josphine James
(14) W.P. Nos. 2840 &
2970 of 2013
(supra) based on the judgment in the case of
Nicolletta Rohtagi (supra) would be of no help to the
claimants to support of their contention that since
the owner of the Ape Rickshaw has contested the
claims, the insurer has no right to contest them on
all possible grounds touching the merits thereof.
12. In view of the facts and circumstances of
the present claim petitions and the law laid down by
the Hon'ble Apex Court in the case of Shila Datta
(supra), I have no hesitation to quash and set aside
the impugned orders. The insurer herein has a right
to contest the claims on all possible grounds,
irrespective of the restrictions contained in Section
149(2) of the MV Act, even without seeking permission
of the MACT. The Writ Petitions are liable to be
allowed. The learned Member of the MACT will have to
be directed to allow the insurer to contest the
claims on all the grounds touching the merits
thereof.
(15) W.P. Nos. 2840 &
2970 of 2013
13. The claim petitions have been filed in the
year 2010. The period of about more than 5 years has
been elapsed after filing of the claim petitions.
Therefore, the learned Member of the MACT will have
to be directed to decide the claim petitions as
expeditiously as possible, after extending the
claimants as well as the insurer, necessary
opportunity to establish their respective
contentions.
14. In the result, I pass the following order :--
(a) The Writ Petitions are allowed.
(b) The orders dated 01.11.2012 and 31.01.2013,
passed below Exhibits 34 and 37, respectively, in
Motor Accident Claim Petition No. 121/2010, by the
learned Member of the MACT, Shahada, District
Nandurbar, impugned in Writ Petition No. 2840 of
2013, are quashed and set aside.
(16) W.P. Nos. 2840 &
2970 of 2013
(c) So also, the orders dated 01.11.2012 and
31.01.2013, passed below Exhibits 33 and 36,
respectively, in Motor Accident Claim Petition No.
122/2010, by the learned Member of the MACT, Shahada,
District Nandurbar, impugned in Writ Petition No.
2970 of 2013, are quashed and set aside.
(d) The learned Member of the MACT, Shahada, shall
extend the insurer (petitioner) an opportunity to
contest the claims on merits on all the grounds.
(e) The learned Member of the MACT, Shahada, shall
decide the Claim Petitions as expeditiously as
possible.
15. Rule is made absolute in the above terms.
The parties are left to bear their own costs.
(SANGITRAO S. PATIL)
JUDGE
...........
puranik / WP2840.13etc
