1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.560 OF 1994 WITH CIVIL APPLICATION NO.4508 OF 1994 The Oriental Insurance Company Ltd. Vijaywada, through its Branch Manager, The Oriental Insurance Co. Ltd., Parbhani. APPELLANT (Ori.Respondt. No.3) V E R S U S 1. Narayan s/o Wakhaji Khebale, Age 35 years, Occup: Agri., R/o Korta, Tq. Basmath, District Parbhani. 2. Shantabai w/o Narayan Khebale, Age 30 years, Occup. Household., R/o as above. RESPONDENTS NO.1 & 2 (Original Claimants) 3. Bhudevi w/o Malayya, Age Major, R/o. Bulladevi, Tq. Wardhana Petha, Dist.Warangal (A.P.), C/o. Ekhila Fancy Cloth Store, Station Road, Warangal (A.P.) 4. Mohammad Siddiqui s/o Mod. Gulam, Aged: 30 years, Occ: Truck Driver, R/o. Warangal Urs Jahagir, District : Warangal (A.P.) (Appeal is dismissed against respondent Nos.3 and 4 as per Registrar's order dtd. 17-07-2007. RESPONDENTS NO.3 & 4 (Original Resp.Nos.1 & 2) 2 ... Shri.Anil A. Joshi,Advocate for Appellant. Shri. P.N. Sonpethkar, Advocate for respondent Nos.1 and 2. ... CORAM: K.K. TATED, J. DATE : 22ND NOVEMBER, 2010. ORAL JUDGMENT : . This first appeal is preferred by original respondent No.3 Insurance Company against the judgment and award dated 31-01-1994 passed by Ex- Officio Member of the Motor Accident clams Tribunal & Joint District Judge, Parbhani in Motor Accident Claims Petition No. 47 of 1992. FEW FACTS OF THE MATTER ARE AS UNDER: 2. Respondent Nos.1 and 2 - original claimants filed Motor Accident Claims Petition No. 47 of 1992 before the Motor Accident Claims Tribunal, Parbhani for grant of compensation to the tune of 3 Rs.1,00,000/- (Rs. One lacs only). On 06-03-1992 deceased Murlidhar Narayan Khebale, aged 12 years was going towards village Korta from village Chondi. At that time, the accident took place, in which Murlidhar sustained several injuries and thereafter, on next day i.e. on 07-03-1992 he died in the hospital. The accident had taken place on Basmath to Jintur road. At the time of accident, deceased Murlidhar was coming to the house from school. Immediately after the accident, his father took him to the hospital but could not succeed in his efforts to save his life. 3. Thereafter, on 12-04-1993 respondent Nos. 1 and 2 i.e. father and mother respectively filed the claim petition. In the said claim petition, the appellant Insurance Company filed written statement contending that it is false to say that on 06-03-1992 the deceased was going towards village Korta from village Chondi. They also stated in the written statement that the truck involved in the accident was not belonging to 4 respondent No.1 and driven by respondent No.2. They also denied that the said truck was insured with them. In their written statement, the appellant - Insurance Company also disputed the quantum of compensation claimed by respondent Nos. 1 and 2. 4. The Tribunal awarded total compensation to the tune of Rs.64,400/- alongwith interest @12% per annum from the date of application till full realisation, in favour of respondent Nos. 1 and 2 - original claimants. 5. I heard both the sides at length. 6. The learned Counsel appearing on behalf of the appellant categorically made a statement that in the present case, the appellant is challenging only quantum awarded by the Tribunal in favour of respondent Nos. 1 and 2. To that effect, the learned Counsel appearing on behalf of the appellant filed synopsis/pursis dated 20-09-1994, 5 in which,it is specifically stated that "The respondent No.3 (Insurance Company) has filed appeal only on the ground of quantum." In view of this categorical statement, it is not necessary to consider other grounds raised in the appeal memo about violation of the terms and conditions of the Insurance policy, whether the accident took place because of the mistake on the part of deceased Murlidhar, whether the Insurance Company is liable to pay compensation or not. 7. The learned Counsel appearing on behalf of the appellant submitted that the Tribunal erred in coming to the conclusion that respondent Nos.1 and 2 are entitled to compensation to the tune of Rs. 64,400/- though they failed to produce any cogent evidence on record to show that the deceased Murlidhar was earning any income. Not only that the appellant also submitted that the deceased was studying in school and therefore, there is no question of contributing any money to his family. 6 8. Before considering submissions made by learned Counsel appearing on behalf of the appellant, it is necessary to consider whether the appellant Insurance Company obtained leave under Section 170 of the Motor Vehicles Act ( For short, "The said Act.") at the time of filing their written statement before the Tribunal. 9. This being the 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. 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. 7 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. 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. Though the appellant filed their written statement in the Tribunal, they failed to obtain leave under Section 170 of the said Act. It is to be noted that no defence of the Insurance Company which does not fall within the provisions of Section 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. Chandigarh Vs. 8 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 dependents 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 available to an insured or breach of any other conditions of the policy which do 9 not find place n 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." "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, 10 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." 11. Apart from this technicality, in the present case the Tribunal has awarded a sum of Rs.64,400/- on the basis that the deceased must be contributing a sum of Rs.150/- per month to his family as he was helping his father and mother tilling in the field. P.W. 1 Narayan Vakhaji Khebale in his evidence specifically stated that the deceased was assisting him in cultivation work. It is to be noted that in calculating compensation payable in respect of the death of the child, the Apex Court in the matter of C.K. Subramonia Iyer vs. T. Kunhikuttan Nair reported 11 in A.I.R. 1970 S.C. 376 made following observation: "There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule, parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition, they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority." 12. In the present case, the Tribunal considered a sum of Rs.150/- per month as a contribution of the deceased to his family, which cannot be said 12 to be excessive. 13. The above decision of the Apex Court and the High Court on the point of maintainability of appeal fully applies to the present case. In this view of the matter, the appeal is not maintainable. Also on the point of calculation of compensation, I do not find any merits in the submissions made by the learned Counsel appearing on behalf of the appellant - Insurance Company. 14. In the result, the appeal is dismissed. No order as to costs. 15. In the light of the dismissal of the first appeal, nothing survives for consideration in the civil application and the same is disposed of accordingly. sd/- [K.K. TATED, J.] sut/NOV10/fa560.94