CIVIL WRIT PETITION NO.2935 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 17,2011 National Insurance Company Limited, Jaipur .....Petitioner VERSUS Sajjan Singh and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Ravinder Arora, Advocate, for the petitioner. **** RANJIT SINGH, J. Insurance Company has invoked the writ jurisdiction of this Court to challenge the award passed by Motor Accident Claims Tribunal (for short, “the Tribunal”), allowing claim of private respondents on account of motor accident. The first hurdle, thus, before the Insurance Company to cross was in regard to the maintainability of a writ petition to challenge the award passed by the Tribunal. The awards of the Tribunal are appealable and hence, to challenge the same through writ petition was found bit strange. CIVIL WRIT PETITION NO.2935 OF 2011 :{ 2 }: To justify its approach, the counsel appearing for the Insurance Company pleads that appeal is barred against the award passed by the Tribunal as the condition precedent under Section 170 of the Motor Vehicles Act (hereinafter, referred to as “the Act”) would stand in its way. Even if that be so, the question would be if writ could be maintained where even appeal against the award is barred? The facts, in brief, would show that this was a simple and a pure case of a motor vehicle accident, for which the Tribunal has passed an award in favour of the respondents herein. Jeep No.RJ- 19-C-9729 was insured with the petitioner-Company. On 8.10.2009, one Himanshu alongwith his mother, Saroj, was proceeding to Village Uan on motorcycle HR-34-C-4633. The motorcycle was driven by Mukesh Kumar, maternal uncle of Himanshu. At about 10 A.M., while the motorcycle was half a kelometer ahead of Gadhi Bus Stand, jeep No.RJ-19-C-9729 came from behind and hit the motorcycle. All the three persons riding motorcycle fell on the road and tyre of the jeep ran over the head of Himanshu. He died on the spot. Mukesh received various injuries. Smt.Saroj, mother of Himanshu, later succumbed to her injuries. The victims of this accident accordingly filed four claim petitions before the Tribunal. First one was filed by Sajjan Singh, father of Himanshu due to death of his son, claiming compensation of `10 lacs. Sajjan Singh preferred a second claim petition due to death of his wife, Smt.Saroj, claiming another sum of Rs.10 lacs as compensation. Separate claim petitions were filed by Munni Devi and Bhagwan Singh, parents of Saroj, who was wife of Sajjan Singh and CIVIL WRIT PETITION NO.2935 OF 2011 :{ 3 }: mother of Himanshu. A sum of `10 lacs was claimed by them as well. Fourth petition was filed by Mukesh Kumar for the injuries suffered by him. All the four claim petitions were defended by the driver and owner of the jeep as well as by the Insurance Company. Driver of the jeep took up a defence of total denial. Insurance Company, however, pleaded that Mukesh was negligent while driving the motorcycle, besides pleading that the compensation as claimed was grossly exaggerated. The Tribunal found that the accident was due to rash and negligent driving of Shamsher Singh, Driver of the Jeep. The Tribunal accordingly awarded a sum of Rs.5,54,000/- on account of death of Saroj, which is now under challenge on the ground that the same is exaggerated and suffers from various infirmities like assessment of income etc. Tribunal has also awarded an amount of `4,90,000/- on account of death of Himanshu but it is not challenged. So too is the state of award in favour of Mukesh. While opting to file writ petition, no explanation is either given or is contained therein as to how the appeal is not competent and why the Insurance Company has chosen to challenge the award of the Tribunal through writ petition. Obviously, the quantum of compensation allowed to Smt.Saroj is challenged as the remaining part of the award is not put to any challenge. The counsel was then asked to address arguments about the maintainability of the writ petition. In support, the counsel has referred to National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others, AIR 2002 Supreme Court 3350. While interpreting CIVIL WRIT PETITION NO.2935 OF 2011 :{ 4 }: Sections 173, 149(2) and 170 of the Act, the Court has held that unless condition precedent under Section 170 are satisfied, Insurance Company has no such right to file appeal, even when no appeal is preferred by insured against the award. The Court has viewed that it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as finding as regard negligence or contributory negligence of the offending vehicle, unless condition precedents specified in Section 170 of the Act is satisfied. As has been observed in this case, motor vehicle accident claim is a tortious claim directed against tortfeasors, who are the insured and driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for this reason that insurer can not escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 of the Act is satisfied. A perusal of the relevant provisions of the Act would show that an insurance company has no right to be a party to an action by an injured person or dependents of deceased against the insured. The provisions of Section 149(2) of the Act enumerate the grounds, which can be taken by the insurer to defend the claim. These are as under:- “149. Duty of insurers to satisfy judgments and awards against person insured in respect of third CIVIL WRIT PETITION NO.2935 OF 2011 :{ 5 }: party risks.- (1) xx xx xx xx xx (2) xx xx xx xx xx (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 (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) 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 CIVIL WRIT PETITION NO.2935 OF 2011 :{ 6 }: representation of fact which was false in some material particular.” As held by the Hon'ble Supreme Court in National Insurance Co. Ltd.'s case (supra) the language employed in Section 149(2) of the Act is plain and simple and there is no ambiguity in it. Accordingly, it is observed that no other ground would be available to the insurer and in this regard reference is made to sub-section (7) of Section 149 of the Act, which clearly indicates that in what manner Section 149(2) has to be interpreted. It is, thus, to be held that insurer can avoid its liability only in accordance with what has been provided for in Section 149(2) of the Act. The Court has gone on to hold that:- “15. It is relevant to note that the Parliament, while enacting sub-section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not find place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If the Parliament had intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of conditions of insurance policy in sub-section (2) of Section 149. If we permit the insurer to take any other defence other than those specified in sub-section (2) of Section 149, it would mean we are adding more defences to insurer in the statute which is neither found in the Act CIVIL WRIT PETITION NO.2935 OF 2011 :{ 7 }: nor was intended to be included. 16. For the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in sub- section (2) of Section 149 of 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds.” The right of appeal to challenge the award passed by the Tribunal is a creature of statute and is so provided in Section 173 of the Act. The insurer has only statutory defences available as provided under Sub-Section (2) of Section 149 of the Act and where the Tribunal is of the view that there is a collusion between claimant and insured or the insured does not contest the claim, the insurer can be made a party on such impleadment, the insurer shall have all defences available to him. Going into the question of appeal by insurer, the Hon'ble Supreme Court has held that the consistent view is that insurer has no right to file an appeal to challenge the quantum of compensation or finding of the Tribunal as regard the negligence or the contributory negligence of the offending vehicle. Reference in this regard can be made to Shankarayya and another Vs. United India Insurance Co.Ltd. And another, 1998 (3) SCC 140, where it is observed that insurance company when impleaded as party, can be permitted to contest the proceedings on merits only if the condition precedent mentioned in Section 170 are found to be satisfied and for that purpose the Insurance Company has to obtain CIVIL WRIT PETITION NO.2935 OF 2011 :{ 8 }: an order in writing from the Tribunal and this order should be a reasoned order. Unless this procedure is followed, the Insurance Company can not have a wider defence on merits than what is available to it by statutory defences. It would be appropriate here to notice the provisions of Section 170 of the Act, which are 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 failed to contest the claim, it may, for reason 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.” Reference here may also be made to the case of Narender Kumar and another Vs. Yarenissa and others, 1998 (9) SCC 202, where a question arose whether there can be a joint appeal by insurer and the owner of the offending vehicle. Though, it was held that the appeal filed by the insurer may not be competent but the same may not be dismissed as such, as the tortfeasors can CIVIL WRIT PETITION NO.2935 OF 2011 :{ 9 }: proceed with his appeal after a cause title is suitably amended by deleting the name of the insurer. The Court has held as under:- “The ground on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available, the Insurance Company is not and cannot be treated as a party to the proceedings. That is the reason why the Courts have consistently taken the view that the Insurance Company has no right to prefer an appeal under S.110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in sub-section (2) of S.96 or in the situation envisaged by sub-section 2 (A) of Sec.110-C of the Act.” In Chinnama George and others Vs. N.K.Raju and another, 2000 (4) SCC 130, the Court has held that if none of the conditions as contained in sub-section (2) of Section 149 of the Act exist for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer can not be a person aggrieved by the award. The insurer will be barred from filing an appeal against the award of the Tribunal. In Rita Devi (Smt.) Vs. New India Assurance Co. Ltd., 2000 (5) SCC 113, it is held that insurer having not obtained permission under Section 170 of the Act, is not entitled to prefer any appeal to the High Court against the award of the Tribunal on merit. The contrary view taken in United India Insurance Co.Ltd. Vs. Bhushan Sachdeva, 2002(2) SCC 265, was held not to be the correct view and, thus, was over-ruled. It CIVIL WRIT PETITION NO.2935 OF 2011 :{ 10 }: would be, thus, fair to observe that the appeal on behalf of the petitioner would not be maintainable. Can then the Insurance company challenge the award through this circuitous route to challenge the award passed by the Tribunal, which the Company is statutorily barred to challenge? The petitioner can not be permitted to challenge the award through writ petition, there being a statutory bar to file appeal as it would then amount to negating the will of the legislature. The course which is statutorily barred can not be allowed through another mode. The only ground addressed by counsel for the petitioner is that the quantum of compensation awarded is exaggerated. No other ground was pressed by him. The counsel, thus, would want this Court to go into the quantum of award and nothing else. This is what is specifically prohibited by the provisions of the Act. The same line of submission was pressed before the Hon'ble Supreme Court in National Insurance Co. Ltd.'s case (supra) as can be noticed from the following:- “It was urged by learned counsel appearing for the insurance company that if an insured has not filed any appeal, it means he has failed to contest the claim and that the right to contest include the right to contest by filing an appeal against the award of the Tribunal as well, and in such a situation an appeal by the insurer questioning the quantum of compensation would be maintainable.” This was answered by the Hon'ble Supreme Court in the CIVIL WRIT PETITION NO.2935 OF 2011 :{ 11 }: following manner:- “25. We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied. 26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is CIVIL WRIT PETITION NO.2935 OF 2011 :{ 12 }: passed by the tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 is satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one Scheme and if we give any different interpretation to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act.” The defences open to Insurance Company are restricted to those specified in Section 149(2) of the Act and do not extend to quantum of compensation. The Insurance Company, thus, can not question the quantum of compensation unless conditions precedent embodied in Section 170 of the Act are satisfied. It may also need to be observed here that the appeal is not an inherent right or a common law right but is a statutory right. If an appeal can be filed on limited grounds, these can not be enlarged on the premise that the insured or the person against whom the claim CIVIL WRIT PETITION NO.2935 OF 2011 :{ 13 }: has been made, has not filed appeal. Right to contest would also include right to file an appeal and creation of right to appeal, being an act, which requires legislative authority, no Court or Tribunal can confer such a right, it being one of limitation or extension of jurisdiction. Entertaining writ petition, thus, under the circumstances where no appeal is maintainable, would amount to extending the jurisdiction of the Court to interfere in such like matters, where there is a statutory bar for the Court to interfere. By entertaining writ petition, the Court would in a way act in violation of the statute, a course which the Court should and must avoid. I would, therefore, hold that the writ petition in such circumstances, where the appeal is barred, would not be maintainable as it would amount to doing violation to the statutory provisions and will of the legislature. The writ petition is accordingly dismissed. February 17,2011 (RANJIT SINGH ) khurmi JUDGE