IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.420 of 2003 DIVISIONAL MANAGER UNITED INDIA INSURANCE COMPANY LIMITED, LAXMI APARTMENT, 2ND FLOOR, FRAZER ROAD, P.S. KOTWALI, PATNA-1. ….….. Appellant Versus MOST. PRATIBHA VERMA & ORS. …….. Respondents ----------- 21/ 26.07.2010 This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) is directed against the judgment dated 4.9.2003 and award dated 6.11.2003 passed by the learned Additional District Judge, IV-cum- M.A.C.T., Patna (hereinafter referred to as the Tribunal) in Claim Case No. 10/2001. The brief facts necessary for disposal for the appeal is that the husband of the respondent no.1 herein, namely, Ramesh Prasad was returning from Purnea to Patna along with his friends Prem Shankar Yadav, Rahul Anand, Narendra Singh and Anil Yadav on his Maruti Van bearing registration no. BR-1P- 9789, which was being driven by the husband of the respondent no. 1 himself. Near the village Gulabhbagh, Barh on N.H. 31 the Maruti Van met with an accident with a truck bearing registration no. BR-1G-7989 resulting in grievous head injury to Ramesh Prasad following which he died. It is in this background that the claim petition came to be filed before the Tribunal giving rise to Claim Case No. 10/2001 by the wife of the deceased, Mostt. Pratibha Verma and her minor children. A compensation of Rs. 19,86,090 (Rupees 2 nineteen lacs eighty six thousand and ninety only ) was set up together with interest at the rate of 12 per cent per annum from the date of filing of the claim case until its realization. The postmortem of the deceased was performed at the Sadar Hospital, Barh and the cause of death was assigned to head injury. The deceased was a businessman having a medicine business run in the name and style of Medicana Medical Stores situated at Makhaniya Kuan in the town and district of Patna from where it was stated that he was earning an amount of Rs. 81,580/- per annum. The deceased was also a Director of Hotel Pyramid situated behind J.P. School Thamel, Kathmandu in Nepal from where he was earning an amount of Rs. 5,000/- per month. The deceased had also some agricultural land from where he was earning Rs. 76,000/- out of which his share was to the extent of Rs. 38,000/-. The deceased had also made huge investments in establishment of a pharmaceutical company in the name and style of Optic Pharma at Hill View Road, Mumbai though the Pharmaceutical company could not proceed by reason of his untimely demise and was wound up. The claimants before the Tribunal submitted that after deducting 1/3 personal expenses from the income received from the business at Medicana Medical Stores, the amount would come to Rs. 54,386/-. Similarly, it would be Rs. 25,320/- from agricultural sources and an amount of Rs. 40,000/- from Hotel Pyramid. It was next contended that applying a permissible 3 multiplier of 15, the compensation would come to Rs. 17,95,590/-. In addition thereto, funeral expenses of Rs. 9,500/- and Rs. one lac towards loss of consortium and claim of compensation for the closure of Optic Pharma, had been claimed. The total amount of compensation was thus raised at Rs. 19,86,090/-. The Tribunal took note of the fact that the deceased was the owner of the Maruti Van bearing registration no. BR-1P-9789 and was having a valid driving license bearing no. DL No. 1032/81 and was an income tax payee having permanent account number. It was also noticed that the respondent no. 6 was the owner of the truck which had rammed into the Maruti Van of the deceased and that the driver was having a valid license bearing DL No. 605/88 MFP DL 241/91, Patna valid up to 15.4.2000 and that the truck was insured with O.P. No. 3 under policy no. 210101/31/021/11/0329/1999, which was valid until 30.3.2000. The appellant insurance company had contested the claim advanced by the respondents herein by filing a written statement and raising objections inter alia on grounds of the claim being beyond the scope of Section 166 and that as the driver did not appear, hence the claim was not maintainable. The insurance company nevertheless admitted that the vehicle was validly insured under an insurance policy at the relevant time. Objection was also raised about the loss estimated, being excessive, abnormal and without any equitable basis. It was also urged that the multiplier factor was not correct 4 and was imaginary. Upon consideration the pleadings of the parties, the Tribunal framed the following issues: 1. Is the claim case as filed maintainable? 2. Is the case barred by limitation? 3. Has the claimants got any cause of action for the case? 4. Is the case barred by any law? 5. Is the claimant entitled for interest as claimed? 6. Whether the petitioners are entitled for a compensation of Rupees Ninteen Lacs and odd as claimed in the claim application or what amount? Oral and documentary evidence was adduced on behalf of the claimants-respondents herein, however, no evidence was adduced by the insurance company and the owner and driver of the vehicle did not choose to contest the matter. The annual income from the Medicana Medical Stores was estimated by the Tribunal at Rs. 51,000/- upon examination of the income tax returns for the period between 1995-96 to 2000-01. As the deceased was drawing an income of Rs. 5,000/- from Hotel Pyramid at Kathmandu in Nepal, hence the annual income was estimated at Rs. 60,000/- from the said source. Since the claimants continued to draw the benefits from agricultural income, hence no loss was estimated on that front. Proceeding on that basis and after deducting 1/3 by way of personal expanses the compensation amount was determined at Rs. 34,000/- from Medicana Medical Stores and Rs. 40,000/- 5 from Hotel Pyramid. Thus the total income after deducting personal expenses was estimated at Rs. 74,000/-. The total compensation amount was worked upon a permissible multiplier of 15 resulting in an amount of Rs. 11,10,000/-. Adding funeral expenses, loss of consortium amount of Rs. 9,500/- together with compensation amount of Rs. One lac for closure of the Optic Pharma at Mumbai, the total amount of compensation was finally determined at Rs. 12,19,500/- with an interest of 8 per cent per annum from the date of filing of the claim case until realization. As the appellant insurance company did not choose to press the issue no. 1 to 3 and 4, hence no decision was given on the said issues. The claim was decreed in part on contest against the opposite party no. 3/appellant and ex parte against the opposite party nos. 1 and 2/respondents 6 and 7 respectively. As Rs. 50,000/- had been paid to the claimants under Section 140, hence a compensation amount of Rs. 11,69,500/- was allowed together with interest at the rate of 8 per cent from the date of filing of the case until realization from the Appellant herein. The award was pronounced pursuant thereto on 6.11.2003. The insurance company being aggrieved by the judgment and award aforesaid has filed the appeal in question. A perusal of the grounds set out in the memo of appeal shows that the grievance of the insurance company was only in relation to the quantum of compensation determined by the 6 Tribunal inter alia on grounds that the compensation award was excessive, on the higher side, imaginary and based on hypothetical consideration. No other grounds as available to the insurance company under Section 149(2) of the Act has been raised by them. A general issue has been raised regarding failure of the Tribunal to consider the defence available under Section 170 of the Act. A preliminary objection was raised on behalf of the claimants-respondents herein as regarding the maintainability of the appeal in the light of the judicial pronouncement(s) reported in 2001(1) P.L.J.R. 30 (SC) (Rita Devi (Smt.) & Ors. Vs. New India Insurance Company Ltd. & Anr), 2003 (3) P.L.J.R. 599 (Branch Manager, National Insurance Company Vs. Raj Banshi Ram & Ors), 2005(2) P.L.J.R. 43 (SC) (Sadhana Lodh Vs. National Insurance Company Limited & Anr) and A.I.R. 1999 Gujarat 213 (United India Insurance Company Limited Vs. Hetalbhai C. Bagadia & Ors.). It was contended that in absence of prior permission from the Tribunal on the question of quantum, the appellant insurance company was estopped from raising any issue on the quantum of the compensation. It was submitted that all the grounds raised in the appeal centered around the quantum and thus in the light of the judicial pronouncement of the High Court and the Supreme Court, the appellant insurance company was not entitled to raise any question on quantum of compensation. 7 Mr. Ram Chandra Lal Das, learned counsel appearing on behalf of the appellant opposing the preliminary objection raised on behalf of the claimants submitted that prior permission was taken by the insurance company by filing a petition which has been taken note of by the Tribunal in its order dated 14.12.2001. He, with reference to a judgment reported in 2007 (Supplement) P.L.J.R. 74 (The Oriental Insurance Company & Anr. Vs. Diva Shankar Rai @ Pappu & Anr) submitted that in exceptional cases, even if the objection has not been raised before the Tribunal, would not preclude the High Court from interfering with the order, in appropriate cases. Learned counsel went on to submit that the moment the insurance company was allowed to cross-examine the claimants, was an implied grant of permission as regarding the quantum. It was submitted that the absence of the Driver had also seriously prejudiced the determination. He further submitted that there was no justification for fixing such a high quantum of compensation in absence of any definite proof. He thus submitted that the compensation allowed by the Tribunal was not sustainable in the light of the statutory provisions. Mr. Randhir Kumar Singh, learned counsel appearing on behalf of the claimants-respondents herein submitted that the provision of Section 166 and Section 168 of the Act appropriately empowers the Tribunal to determine a just amount of compensation. He further submits that the moment the 8 insurance company chose to file a written statement, he ought to have sought permission of the Tribunal for questioning the quantum of compensation. He submits that a perusal of the written statement filed on behalf of the company before the Tribunal shows that no such permission was taken by the insurance company for questioning the quantum except that it was exorbitant, baseless and unfounded. Learned counsel thus submits that in view of the aforesaid position coupled with judicial pronouncement on the issue the appeal was fit to be dismissed. He submitted that that the Gujarat High Court had taken note of the judgment of the Supreme Court in the case of Shankarayya & Anr.Vs. United India Insurance Company Limited & Anr. reported in 1998(3) SCC 140 in which it was held that the insurance company could be permitted to contest the case on merit only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the insurance company had to obtain an order in writing from the Tribunal and which should be a reasoned order. Unless the said procedure is followed the insurance company cannot have a wider defence on merit then what is available to it by way of statutory defence. He thus submitted that the appeal was fit to be dismissed both on grounds of maintainability as well as on merits. I have heard learned counsels appearing on behalf of the parties and considered the materials on record. A perusal of the 9 orders passed in the present proceedings reveals that the appellant had chosen to waive the issue of the quantum of compensation. The said position is evident from the order passed on 8.3.2006 which reads as under : “It is stated by the learned counsel for the appellant that the appellant is not assailing the quantum of compensation awarded. According to the learned counsel, the appellant has assailed the award, as according to him, he is not liable. Under such circumstances, as prayed, let the question of maintainability be considered at the time of admission of the appeal.” From the grounds raised in the memo of appeal, I find that except questioning the quantum of compensation determined by the Tribunal no other issue has been raised in appeal warranting interference. Although the issue of failure of the Tribunal to consider the defence available to the insurance company under Section 170 has been taken in a general manner but the same is more ornamental as no contest was made before the Tribunal on this issue. The scope of an insurance company maintaining an appeal has been elaborately discussed in a judgment reported in 2002(7) SCC 456 (National Insurance Company Limited Vs. Nicolletta Rohtagi & Ors.). The Supreme Court in no uncertain terms has proceeded to hold that an insurer cannot escape from his liability to pay compensation on any exclusionary clause in the policy except those specified in Section 149(2) or where the condition precedent specified in 10 Section 170 is satisfied. It was further held that unless an order is passed by the Tribunal permitting the insurer to avail other grounds as found available, it is not permissible for the insurer to contest the claim on those grounds. Regard being had to the judicial pronouncement(s) on the issue as also noted in this order, the issue can be decided on the short point that the insurance company did not obtain prior permission of the Tribunal for raising the issue of the quantum of compensation nor any such written order of the Tribunal is found in the records of the proceedings. Further in view of the submission of the insurance company, taken note of by this Court in the order dated 8.3.2006 (supra), the issue has to be decided in the backdrop of Section 149(2) of the Act. I find that no such grounds as envisaged under the said provision has been raised in the present appeal. Thus in absence of obtaining prior permission from the Tribunal for questioning the quantum read with the order dated 8.3.2006 passed in the present proceedings coupled with the fact that no other ground as available under Section 149(2) has been raised by the insurance company, I find no substance in the appeal and the same is dismissed. As a consequence, the interim order stands vacated. There, however, shall be no order as to costs. S.Sb/- (Jyoti Saran, J.)