The Oriental Insurance Co.Ltd. vs Sh.Tulsi & Ors.
2008 Latest Caselaw 1729 Del

*     HIGH COURT OF DELHI : NEW DELHI

    MAC App. No.425/2008 & CM No.10794/2008

%            Judgment reserved on: 9th September, 2008

             Judgment delivered on:24th September, 2008


The Oriental Insurance Co.Ltd.
1575, Church Road, Kashmere Gate,
Delhi.

Through its Regional Office at
Scope Tower Complex,
Laxmi Nagar, Delhi.                    ....Appellant

                      Through: Mr.Ram N.Sharma, Adv.

                              Versus

1.Sh.Tulsi, S/o Sh.Mahavir

2.Smt.Guddo,W/oSh.Tulsi,

Both R/o V-13, Silampur, Phase-II
Block-V, Delhi.

3.Sh.Narinder Singh, S/o Sh.Kartar Singh
R/o H.No..73, Gali No.2,
Johri Pur Extn.,
New Delhi. (Driver)

4.Sh.Tej Pal Singh, S/o Sh.Phool Singh
R/o H.No.b-28/16, Harsh Vihar,
Delhi. (Owner of vehicle)          ...Respondents.

                      Through: Nemo.




MAC App.No.425/2008                           Page 1 of 12
 Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

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.

Present appeal has been filed by the appellant-

Insurance Company under Section 173 of the Motor

Vehicles Act, 1988 (for short as „Act‟) against the

Judgment dated 10th April, 2008 passed by Ms.Neena

Bansal Krishna, Judge, MACT, Delhi (for short as

„Tribunal‟).

2. The brief facts of the case are that on 29th June,

2007, deceased Sikandar was on his duty as conductor-

cum-helper on bus bearing No.DL-1PB-2303. When

the bus stopped at red light signal at Kodia Pull, the

deceased took out his head for spitting, when he was

hit by a speeding bus bearing No.DL-1PA-2917 which

came from behind. Thereafter, Sikandar was taken to

Trauma Centre, Delhi, where he was declared as dead.

3. The offending bus was being driven by

respondent No.3, Narender Singh while respondent

No.4, Tej Pal Singh is the owner of the bus and the bus

was insured with appellant-Insurance Company.

4. Respondents 3 & 4, driver and owner have filed

their written statement in which their defence was that

the answering respondent has not caused any accident

as alleged. It was stated that the offending vehicle

might have caused the accident and might have run

away from the spot after causing the accident but the

number of the vehicle of the answering respondents

was noted down instead of the offending vehicle and,

thus, the vehicle of answering respondents has been

implicated by the police, wrongly in this case.

However, the vehicle in question was insured with the

appellant.

5. Vide impugned judgment, the Tribunal passed an

award in the sum of Rs.7,55,000/- along with interest

@ 7.5% p.a. from the date of institution of the petition

till the date of payment in favour of respondents 1 & 2,

payable by respondents No.3 and 4, to be

indemnified/deposited by the appellant-Insurance

Company.

6. It has been contended by the learned counsel for

the appellant that the entire reliance was placed by the

Tribunal only on the evidence of PW3, who has clearly

deposed that the deceased himself took his head out

when the accident happened, and the Tribunal has

failed to draw inference of the same.

7. Other contention is that it is a case of

contributory negligence and the Tribunal has placed

reliance upon the site plan which is Ex.R3W2/2, which

does not clearly support the testimony of the eye

witness and shows that the bus in which the deceased

was sitting was not parked properly on the road, which

in fact had caused the accident.

8. The claimants examined PW3 Abdul Salam as eye

witness of the accident, who in his examination-in-chief

deposed as under;

"On 29.6.2007, I had boarded a bus from Darya Ganj for Old Delhi Railway station. At about 4 p.m., the bus had stopped at traffic signal at kodia pul on the right side of the road. Bus plying on route no. 405, bearing no.2917 came from behind and overtook the bus from the left side of the bus at a very close distance because of which it hit into the head of the conductor who had barely taken out his head out of window to spit. The conductor sustained injuries on his head and the injured conductor was shifted to trauma centre in a TSR. The police recorded my statement. I had given the number of the offending bus to the police as I had noted the same while it was crossing our bus. The accident took place due to the negligence of the bus driver of offending bus plying on route no.405. The offending bus had sped away from the scene of accident after causing the same."

9. In his cross examination by the counsel for

respondents no.3 and 4 herein, PW3 stated that he had

actually seen the accident taking place, as he was

sitting on a seat parallel to the seat of the conductor on

the driver side. He had also noted the number of the

bus.

10. A suggestion was given to this witness that the

bus plying on route no.405 had to take left turn and it

was while taking a left turn, that it had crashed

alongside the other bus and hit the conductor.

11. From this cross- examination on behalf of

respondents no. 3 and 4, it is clear, that on the one

hand, they have denied the factum of accident and on

the other hand, it had been suggested to the PW3, that

while taking a left turn, it had hit into the bus and had

hit the conductor.

12. The copy of the site plan Ex. R3W2/2, supports

the testimony of PW3 i.e. eye witness of the accident in

question. The FIR, copy Ex.R3W2/1, which has been

recorded on the statement of PW3, also proves the

presence of PW3 on the spot.

13. For the reasons best known to respondent no.3

i.e. driver of the offending vehicle, he did not appear in

the witness box to prove his defence, about his non-

involvement in the accident.

14. Thus, in view of the above evidence, the Tribunal

has rightly relied upon the testimony of PW3 and held

that deceased died in the accident caused due to the

rash and negligent driving of the bus, by respondent

no.3.

15. Even if the deceased had taken out his head out of

the window to spit, the fact remains that the driver of

offending bus was required to maintain a safe distance

from the other vehicles on the road in order to avoid

such untoward accidents.

16. Lastly, in the present case no permission under

Section 170 of the Act has been obtained by the

appellant from the Tribunal.

17. 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."

18. 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."

19. 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."

20. 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.

21. Under these circumstances, no infirmity can be

found with the impugned judgment of the Tribunal and

thus, there is no merit in this appeal and the same is,

hereby, dismissed with costs of Rs.5,000/-.

22. Costs be deposited by way of cheque in the name

of Registrar General of this Court within four weeks

from today.

23. Trial court record be sent back forthwith.

24. List on 3rd November, 2008 for compliance.

September 24, 2008 V.B.GUPTA, J. Bisht/rs