1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 568 OF 1996 Branch Manager, The Oriental Insurance Company through Divisional Manager, Adalat Road, Aurangabad .. APPELLANT Versus 1. Ramrao s/o Bhimrao Wayal, Age: 50 years, Occ: Agril., R/o. Watoor, Tq. Partur, District Jalna. 2. Maharashtra State Transport Corporation Bombay, through its Divisional Controller, Jalna. 3. Tatyarao s/o Bapurao Pandmukh, Age :Major, Occu. : Driver, Bus Driver, Depot Partur, Tq. Partur,Dist. Jalna. 4. Gangadhar s/o Gunaji Surwase, Age: 28 years, Occ: Driver, R/o. Near Balaji Mandir, New Mondha, Partur,Tq. Partur, Dist. Jalna. 5. Rajendra s/o Madhukarrao Kotwal, Age: 25 years, Occ: Owner of Tempo Trax No.MH-20-E-8116, R/o. Paradgaon road, New Mondha, Partur, District Jalna. .. RESPONDENTS 2 WITH FIRST APPEAL NO. 569 OF 1996 The Oriental Insurance Company through Divisional Manager, Adalat Road, Aurangabad .. APPELLANT Versus 1. Laxman s/o Sampatrao Khandare, Age: 45 years, Occ: Agril., R/o. Kirla, Tq. Mantha, District Jalna. 2. Maharashtra State Road Transport Corporation Bombay, through its Divisional Controller, Dist. Jalna. 3. Tatyarao s/o Bapurao Padmukh, Age :Major, Occu. : Driver,= Bus Driver, Bus Depot Partur, Tq. Partur,Dist. Jalna. 4. Gangadhar s/o Gunaji Surwase, Age: 28 years, Occ: Driver, R/o. Near Balaji Mandir, New Mondha, Partur,Tq. Partur, Dist. Jalna. 5. Rajendra s/o Madhukarrao Kotwal, Age: 25 years, Occ: Owner of Tempo Trax No.MH-20-E-8116, R/o. Paradgaon road, New Mondha, Partur, District Jalna. .. RESPONDENTS WITH FIRST APPEAL NO. 607 OF 1996 3 WITH CIVIL APPLICATION NO. 3200 OF 1995 CIVIL APPLICATION NO. 4776 OF 1996 Branch Manager, The Oriental Insurance Company through Divisional Manager, Adalat Road, and Aurangabad .. APPELLANT Versus 1. Bapurao s/o Tulshiram Sontakke, Age: 45 years, Occ: Labour, R/o. Dahargalli, Partur, Tq. Partur, District Jalna. 2. Maharashtra State Road Transport Corporation Bombay, through its Divisional Controller, Jalna. 3. Tatyarao s/o Bapurao Padmukh, Age :Major, Occu. : Driver, Bus Driver, Depot Partur, Tq. Partur,Dist. Jalna. 4. Gangadhar s/o Gunaji Surwase, Age: 28 years, Occ: Driver, R/o. Near Balaji Mandir, New Mondha, Partur,Tq. Partur, Dist. Jalna. 5. Rajendra s/o Madhukarrao Kotwal, Age: 25 years, Occ: Owner of Tempo Trax No.MH-20-E-8116, R/o. Paradgaon road, New Mondha, Partur, District Jalna. .. RESPONDENTS 4 ... Shri. A.A. Joshi, Advocate for the Appellants. None for the respondents. ... CORAM : K. K. TATED, J. DATE : 25TH NOVEMBER, 2010. ORAL JUDGMENT : . All these first appeals are disposed by the common judgment, as law point involved therein is the same. Heard the learned Counsel for the appellants. Though the respondents are duly served, no one appeared on their behalf when the appeals were called out for final hearing. 2. Present appeals preferred by respondent No.5 Insurance Company against the judgment and awards dated 25-11-1994 passed by the Ex-officio Member, Motor Accident Claims Tribunal, Jalna in Motor Accident Claim Petition No.94 of 1992, in Motor Accident Claim Petition No.93 of 1992 and in Motor 5 Accident Claim Petition No.95 of 1992 respectively. 3. On 09-06-1992 respondent NO.1 original claimant in all these appeals alongwith other persons were coming from Partur to Watoor Phata by Tempo Trax bearing Registration NO.MH-20E 8116. On the way the accident took place. 4. In that accident, respondent No.1 original claimant in First Appeal No.568 of 1996, sustained fracture of his knee joint, patella bone and injured on the right side of the head. 5. Respondent No.1 original claimant in First Appeal No.569 of 1996 sustained fracture to his right leg near ulna joint and contused lacerated wound on right side of face. There was injury to right scalp and right cheek with contused margin. 6. Respondent No.1 original claimant in First 6 Appeal No. 607 of 1996 sustained injury to his incisor teeth of left side and the affected teeth were required to be detached. Due to the accident, four teeth came out from the Jaw of the claimant and caused bleeding injury to his lips. Respondent No.1 original claimants in those matters filed claim petitions before the Motor Accident Claims Tribunal, Jalna, claiming compensation. 7. Considering the evidence on record, the Tribunal awarded compensation of Rs.25,000/- to respondent No.1 original claimant in M.A.C.P. No.94 of 1992 i.e. F.A. No. 568 of 1996. . Rs.20,000/- to respondent No.1 original claimant in M.A.C.P. No.93 of 1992 i.e. F.A. No. 569 of 1996. . Rs.15,000/- to respondent No.1 original claimant in M.A.C.P. No. 95 of 1992 i.e. F.A. 7 No. 607 of 1996. 8. The above amount of compensation is awarded besides the amount granted under No Fault Liability. Against the abovementioned judgments and awards passed by the Tribunal, the appellant - Insurance Company preferred these appeals. 9. The learned Counsel appearing on behalf of the appellant submits that the Tribunal wrongly reached to the conclusion that respondent No.1 original claimant in F.A. No.568 of 1996 is entitled to compensation to the tune of Rs.37,000/-, respondent No.1 original claimant in F.A. No.569 of 1996 to the tune of Rs.32,000/- and respondent No.1 original claimant in F.A. No. 607 of 1996 at Rs.27,000/- for the minor injuries. He further submits that the Tribunal wrongly held that the Insurance Company alone is liable to pay compensation without holding the driver and owner of the vehicle responsible. He further submits 8 that the Tribunal failed to consider that the original claimants were gratuitous passengers in the vehicle. On these grounds, the learned Counsel appearing on behalf of the appellant urges that the judgments and awards passed by the Tribunal against the appellants be set aside. 10. I have gone through the record and proceedings of the matter. When I called upon the learned Counsel appearing on behalf of the appellants to satisfy whether they obtained leave under Section 170 of the Motor Vehicles Act to defend the claim on the grounds which were available to the owner and driver, he fairly admitted that the appellants have not obtained leave of the tribunal. 11. Respondent Nos. 3 and 4 i.e. original driver and owner of the Tempo Trax also appeared before the Tribunal and oppose the case. 9 12. This being an appeal by the Insurance Company against the award of Motor Accidents Claim Tribunal the foremost question to be decided is the maintainability of the appeal. If the appeal is held to be maintainable the submissions regarding the merits of the claim can be considered, otherwise not. 13. It is clear from the provisions of Sec. 170 of the Act that Insurance Company has no right to contest the claim unless claim Tribunal expressly records its satisfaction as to collusion or failure to contest as mentioned in Sec. 170 of the Act. In this connection a reference may be had to the decision of this Court in the case of Oriental Insurance Co. Ltd. Vs. Rajkumar Ranjitsingh Bhatti reported in 2008(6) Bom. C. R. 365. In that case no leave U/Sec. 170 of the Act was granted and there was no compliance of Sec. 149(2) of the Act. Hence it was held that the appeal was not maintainable. 10 14. The Insurance Company can raise defence provided in Sec. 149(2) of the Act in the Motor Accident Claim Petition filed U/Sec. 166 of the Act. In the present case, the appellant in its written statement stated that the respondent Nos. 4 and 5 committed breaches of the conditions of license, without mentioning particular, condition alleged to be breached and hence no issue was framed on that point and there is no finding by the Tribunal that any condition of the Insurance Policy was breached by respondent Nos.4 and 5. No defence of the Insurance Company which does not fall within provisions of Sec. 149(2)(a) and (b) of the Act is tenable and hence the appeal cannot be entertained by this Court, unless the Insurance Company satisfies the Court that grounds of appeal conform to the provisions of Sec. 149(2)(a) and (b) and Sec. 170 of the Act. In this connection a reference may be made to the decision of Apex Court in the matter of National Insurance Co. Ltd. 11 Chandigarh Vs. Nicolletta Rohtagi and others reported in 2002 AIR SCW 3899. In that case the Apex Court laid down the law thus : "13. To answer the question, it is necessary to find out on what grounds the insurer is entitled to defend/contest against a claim by an injured or defendants of the victims of motor vehicle accident. Under Section 96(2) of 1939 Act which corresponds to Section 149(2) of 1988 Act, an insurance company has no right to be a party to an action by the injured person or dependents of deceased against the insured. However, the said provision gives the insurer the right to be made a party to the case and to defend it. It is, therefore, obvious that the said right is a creature of the statute and its content depends on the provisions of the statute. After the insurer has been made a party to a case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting sub- section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, he is entitled to defend the action on grounds enumerated in the sub-section, namely, sub-section (2) of Section 149 of 1988 Act, and no other ground is available to him. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other ground which is 12 available to an insured or breach of any other conditions of the policy which do not find place in sub-section (2) of Section 149 of 1988 Act. If an insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer than what the statute has specifically provided for." "14. Sub-section (7) of Section 149 of 1988 Act clearly indicates in what manner sub-section (2) of Section 149 has to be interpreted. Sub-section (7) of Section 149 provides that 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, as the case may be. The expression 'manner' employed in sub-section (7) of Section 149 is very relevant which means an insurer can avoid its liability only in accordance with what has been provided for in sub- section (2) of Section 149. It, therefore, shows that the insurer can avoid its liability only on the statutory defences expressly provided in sub-section (2) of Section 149 of 1988 Act. We are, therefore, of the view that an insurer cannot avoid its liability on any other grounds except those mentioned in sub-section (2) of Section 149 of 1988 Act." 13 "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 nor was intended to be included." 15. The above decisions of the Apex Court and the High Court are squarely applicable to the facts of the present cases. Hence appeals are not tenable. 16. In the result, all these appeals are dismissed with no order as to costs. 17. In the light of the dismissal of these 14 appeals, nothing survive in the civil applications for consideration and the same are disposed of accordingly. sd/- [K. K. TATED, J.] sut/NOV10/fa568.96