United India Insurance Co. vs Vijay Karketta Alias Rohan & Ors.
2008 Latest Caselaw 1219 Del

*      HIGH COURT OF DELHI : NEW DELHI

    MAC App. No. 297/2008 & CM No.6725/2008

%                     Judgment reserved on: 29th July, 2008

                      Judgment delivered on: 4th August, 2008


United India Insurance Co.,
DRO-2
Scopa Minar, Laxmi Nagar
Delhi-110092.                            ....Appellant

                      Through: Mr.S.L.Gupta with Mr.Ram
                               Ashray, Advs.

                               Versus

1.Vijay Karketta Alias Rohan
S/o Shri Raju Karketta,
R/o House No.5, S-Block,
Sardarpur Colony,
Sector-45, Noida.

2.Shri Sukhdev Singh (Driver)
S/o Shri Tara Singh,
R/o Village Bandoli, P.S.Ramgarh,
Distt Alwar, Rajasthan

3.Shri Ashok Chug (Owner)
s/o Shri J.L.Chug.
R/o A-171, New Friends Colony,
New Delhi.                               ...Respondents.

                          Through: Nemo.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA



MAC App.No.297/2008                                 Page 1 of 12
 1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes

V.B.Gupta, J.

The present appeal under section 173 of the

Motor Vehicles Act,1988 (for short as the "Act") has

been filed by the Appellant against the award dated

10.01.08 passed by Ms. Sukhvinder Kaur, Presiding

Officer, Motor Accident Claims Tribunal, New Delhi.

2. Brief facts of the case are that on 30.12.2000

at about 9.50 p.m., Sh. Vijay Karketta, Claimant/

Respondent no. 1 herein, aged 22 years was going on

his cycle with one of the staff member who was sitting

on the front rod of his cycle from his sub-office at

Lajpat Nagar-II to his residence. When he reached

near Mathura Road Kalka mode near Okhla Bus Depot-

II, then a truck trailor No: DL-1GA-1906 driven rashly

and negligently at a fast speed came from behind and

hit him. Due to the impact, he fell down on the road

along with his cycle and the offending truck came over

him due to which he sustained serious injuries. After

the accident, he was taken to the Holy Family Hospital,

New Delhi.

3. A compensation of Rs.47,96,360/- has been

claimed by the Respondent no. 1 against the

Respondent no. 2 herein, being the driver of the

offending vehicle, Respondent no. 3 herein, being the

owner of the offending vehicle & Appellant herein, as

the offending vehicle is insured with them.

4. Respondent no. 2 opted not to appear despite

service by way of publication and was proceeded ex-

parte before the Trial Court.

5. Respondent no. 3 in his written statement has

admitted that the offending truck was registered in his

name. However, he has denied that the accident was

caused due to the negligence on the part of the

Respondent no. 2. It is stated that accident was caused

due to the act of the Respondent no.1 himself who has

to be naturally well aware that bicycle is meant only

for one person and pillion rider is not allowed. It is

further stated that the cyclist was riding the bicycle on

the main road carelessly in utter disregard of all safety

rules.

6. Appellant though admitted that the offending

truck was insured with it on the date of accident, it

contested the claim on the ground that it was not be

liable to pay any compensation in case it is found that

the vehicle was being driven by a person without

permission or authority of the insured or the said

vehicle was used contrary to the terms of insurance

policy or driver was not holding a proper and valid

driving licence.

7. Vide impugned judgment, the Tribunal awarded

the compensation of Rs.12,93,000/- (rounded off) along

with the interest @ 9% per annum from the date of

filing the petition i.e. 25.02.02 till the date of its

realization.

8. It has been contended by the Learned Counsel for

the Appellant that the Tribunal has erred in awarding

the sum of Rs. 8,00,000/- towards cost of future

treatment of injuries, as till April 2006 (date of

evidence) only a sum of Rs. 1,31,673/- was spent on

treatment. Any future treatment after six years of

occurrence of injury does not appear to be possible.

Further, on 02.05.08, Sh. Surender Kumar Advocate,

who had investigated regarding the present Magical

Treatment of Respondent no.1 has informed the

Insurance Company that the Respondent no.1 has not

spent any major amount on his treatment since April

2006 to 02.05.08. On his suggestion to the Respondent

no.1 that why he does not take the treatment from

AIIMS at Delhi or any other Government Hospital at

Delhi or Noida, Respondent no.1 told him that his

personal doctor is giving him the treatment free of cost

as he is personally known to him. Thus, the

Respondent no.1 is not entitled to Rs.8,00,000/- for

future treatment. The Tribunal has calculated

permanent disability of the claimant to the extent of

62% and has also awarded Rs.50,000/- towards loss of

marriage prospects. Thus, the Tribunal arrived at the

conclusion that injuries are of permanent nature and

not curable, then what future treatment is required

and how it will help the injured.

9. In the present appeal, the Appellant has

challenged the quantum of award.

10. Section 170 of the Act reads as under:-

"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 filed 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."

11. In Shankarayya and another v. United

India Insurance Co. Ltd. and another, AIR

1998 SC 2968, the Apex Court while dealing

with the question as to whether Respondent No.1-

Insurance Company could have filed an appeal in

the High Court against the award of the Motor

Accidents Claims Tribunal and got the quantum of

compensation reduced when the insured had not

filed such appeal and when Respondent No.1-

Insurance Company had not moved the Tribunal

under Section 170 of the Act for getting the right

to contest the proceedings on merit, held as

under;

              "It   clearly     shows    that   the
             Insurance         Company       when

impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the Insurance Company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. 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. It is true that the claimants themselves had joined respondent No.1- Insurance Company in the Claim Petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance.

That was not an order of the Court itself permitting the Insurance Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section

170. Consequently, it must be held that on the facts of the present case, respondent No.1-

Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal."

12. In National Insurance Co. Ltd. and another v.

Smt. Balbir Kaur and others, AIR 2000 P&H 210,

the Punjab and Haryana High Court held as under;

"If the insurance company does not plead before the Tribunal that there was any collusion between the claimants and the person against whom the claim was made and does not ask the Tribunal to pass an order under Section 170 of the Act allowing it to contest the claim on merits it will have no right to contest the same on the grounds other than those mentioned in sub-section (2) of Section 149 of the Act. In the case before us, the insurance company did not plead collusion between the claimants and the Insured and there is no order passed by the Tribunal allowing the insurance company to contest the claim on merits. As a matter of fact, the insurance company did not make any prayer to the Tribunal to allow it to contest the claim on all or any of the grounds available to the insured. Not having done so before the Tribunal, we are of the view that the insurer cannot be allowed to challenge the award on merits for the first time in appeal before this Court. The application filed by the appellant under Section 170 of the Act seeking

permission to contest the claim on merits itself is, thus, misconceived and not maintainable as such a plea could only be made before the Tribunal and not before this Court as is clear from the plain language of the section."

13. Thus, it is well-settled that when permission of

the Tribunal to contest the claim on merits had not

been obtained as per requirement, the insurer cannot

be permitted to challenge the award on merits.

Further, the Insurance Company in appeal is not

entitled to challenge the award on merit, i.e., on the

question of negligence and quantum, unless the

conditions enacted in section 170 of the Act are

complied with.

14. Here, the Appellant has filed the present appeal

challenging the award on quantum only. Since no

permission under Section 170 of the Act has been

granted, the Appellant i.e. Insurance Company, being

the insurer cannot take this plea in the present appeal.

15. Appellant in its written statement has taken

certain preliminary objections. As per objection no.3 it

is stated that;

"Even otherwise, unless and until it is proved that the Respondent No.1 on 30.12.2000 while driving the offending vehicle No. DL-1GA- 1906 was holding a valid and effective driving licence, no liability can be imposed against the answering Respondent."

16. The Trial Court on the pleading of the parties

framed three issues and issue no.2 reads as under;

"Whether Respondent No.3 is not liable for compensation on the account of preliminary objections taken by it in its written statement?"

17. On this issue, the finding given by the Tribunal is

that;

"No evidence has been adduced by Respondent No.3 to establish its defence taken in the preliminary objections of its written statement. Accordingly Issue No.2 is decided against

Respondent No. 3 and in favour of the petitioners."

18. Hence, the present appeal as well as application

for condonation of delay under these circumstances

are not maintainable and the same are hereby

dismissed.

19. No order as to costs.

20. Trial Court record be sent back.

4th August, 2008 V.B.GUPTA, J.

Bisht