IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.07.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.449 of 2002 The New India Assurance Company Ltd., Cuddalore-607 001. ... Appellant/2nd Respondent Vs. 1.D.Radhakrishnan 2.K.Ramakrishnan ... Respondents / Claimants & 1st Respondent. Prayer: Appeal filed under Section 173 of Motor Vehicles Act, against the Award and Decree dated 14.09.2001 made in M.A.C.T.O.P.No.444 of 1998 on the file of Motor Accidents Claims Tribunal (Additional Sub- Judge), Cuddalore. For Appellant : Mr.C.Ramesh Babu For 1st Respondent : Ms.A.Sagaya Selvi For Mr.U.M.Ravichandran JUDGMENT Heard the submissions made by Mr.C.Rameshbabu, learned counsel representing the appellant and Ms.A.Sagayaselvi, learned counsel representing the first respondent. The materials available on record were also perused. 2.The New India Assurance Company Limited which figured as the second respondent before the Tribunal in M.A.C.T.O.P.No.444 of 1998 is the appellant herein. The said MACTOP was filed by the first respondent herein claiming a sum of Rs.2,50,000/- as compensation from the appellant herein and the second respondent herein in their capacities as insurer and owner of the offending vehicle respectively. The second respondent namely, the owner of the offending vehicle remained absent and was set exparte before the Tribunal. The appellant herein namely, the insurer of the offending vehicle alone contested the case. 3.After trial, the Tribunal allowed the claim in part holding the appellant and the second respondent herein jointly and severally liable to pay compensation to the petitioner for the injuries https://hcservices.ecourts.gov.in/hcservices/ sustained by him in the accident in question that took place on 22.09.1996. The Tribunal quantified the compensation at Rs.1,76,735/- and directed the same to be paid with an interest at the rate of 9% per annum from the date of petition till realisation. Proportionate cost was also awarded. Challenging the said award both on the question of liability and on the question of quantum, the appellant Insurance Company has brought forth this civil miscellaneous appeal on various grounds set out in the memorandum of appeal. 4.This appeal has been filed challenging the award on the question of quantum and disputing the liability of the insurer to shoulder the liability of the owner of the vehicle. The maintainability of the appeal on the question of quantum of compensation is challenged on the ground that no permission under Section 170 of the Motor Vehicles Act was obtained. So far as the question of liability of the insurer under the policy to indemnify the owner (insured), the maintainability of the appeal after the death of the injured without impleading his legal representatives is challenged. Hence, the short point that arises for consideration is "Whether the appeal is maintainable?" 5.There is no dispute regarding the fact that the petitioner sustained injuries in an accident that took place on 22.09.1996 in which the vehicle belonging to the second respondent was involved and that the said vehicle bearing Registration No.TN.31.A 0559 stood insured with the appellant as on the relevant date. However, the appellant Insurance Company took a stand that the insurance policy issued by it in respect of the said vehicle did not cover the risk involved to any passenger except the driver of the vehicle and that since the first respondent injured was travelling in the said vehicle sitting on the mudguard, the appellant Insurance Company was not obliged to shoulder the liability of the owner for the accident caused to injured. However, the Tribunal held that the policy covered the risk involved to the injured (first respondent) also and directed the compensation quantified by the Tribunal to be paid by the owner and the insurer jointly and severally. 6.Admittedly, the appellant Insurance Company did not get any permission under Section 170 of the Motor Vehicles Act to contest the claim on any one of or all the grounds of defence available to the owner of the vehicle in addition to the grounds of defence available under Section 149 of the Motor Vehicles Act. When the Insurance Company has not taken permission from the Tribunal to contest the case on the grounds of defence available to the owner of the offending vehicle in addition to the grounds of defence available under Section 149 of the Motor Vehicles Act, the Insurance Company cannot maintain an appeal against the award of the Tribunal on the question of negligence or quantum of compensation. The authority on this point is the Judgment of a three Judge Bench of the Hon'ble Supreme Court in National Insurance Company Limited V. Nicolletta https://hcservices.ecourts.gov.in/hcservices/ Rohtagi and others reported in 2002 ACJ 1950. Since, admittedly the appellant Insurance Company did not get permission under Section 170 of the Motor Vehicles Act before the Tribunal, the appeal preferred by the Insurance Company on quantum of compensation is not maintainable. 7.So far as the challenge made to the award on the question of liability of the insurer to shoulder the liability of the owner of the vehicle to pay compensation to the injured first respondent is concerned, the developments subsequent to the filing of the appeal has made the appeal in respect of the above said aspect abate as against the second respondent herein. The second respondent herein was the owner of the offending vehicle. The challenge made to the appeal on the ground that the appellant Insurance Company cannot be mulcted with the liability to shoulder the liability of the owner of the tractor in terms of the contract of insurance cannot be maintained in the absence of the owner of the vehicle, as he alone is the person interested in resisting such a claim made by the Insurance Company. Since the second respondent, owner of the vehicle is no more and the appellant Insurance Company has not taken any steps to implead the legal representatives of the deceased second respondent, whatever be the reasons for the inability of the Insurance Company to take steps to implead the legal representatives of the deceased second respondent, that part of the appeal cannot be maintained as against the deceased person. 8.The learned counsel for the appellant also submitted that despite the earnest efforts made by the appellant, the particulars of the legal representatives of the deceased second respondent could not be ascertained and that the appellant company did not have any hope to find out the particulars and file a petition to implead the legal representatives of the deceased second respondent. 9.For all the reasons stated above, this Court comes to the conclusion that the appeal as such on both the grounds is not maintainable and the same deserves to be dismissed. Accordingly, the Civil Miscellaneous Appeal is dismissed. However, there shall be no order as to costs. Sd/- Deputy Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ Sgl To The Additional Sub Judge, Motor Accidents Claims Tribunal, Cuddalore. Copy to: The Section Officer, VR Section, High Court, Madras. + 1 CC To Mr.Um.Ravichandran, Advocate SR NO.39509 + 1 CC To Mr.C.Ramesh Babu, Advocate SR NO.39125 C.M.A.No.449 of 2002 CK(CO) SRA(08/08/2008) https://hcservices.ecourts.gov.in/hcservices/