1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 437 OF 1995 The Manager, United India Insurance Co. Ltd. Bhopal (M.P.) through its Branch Manager, Gandhi Park, Old Jalna, Branch at Jalna .. .. Appellant Versus 1. Sow. Ushabai W/o Ramesh Randheer, Age : 32 Years, Occu. : Business, (Now Nil), Tq. & Dist. Jalna. 2. Paraji Gangadhar Dhokle, Driver, R/o Tad Hadgaon, Tq. Ambad, Dist.Jalna (Deleted). 3. Jayant Nilkanthrao Patil, Age : 33 Yars, Occu. : Agril. & Business, R/o Station Road, Bhopal, at present Golegaonkar Colony near Railway Station, Aurangabad. .. .. Respondents Shri D. V. Soman, Advocate for Appellant. Shri S. P. Sonpawale, Advocate for the Respondent No. 1. Shri R. F. Totala, Advocate for the Respondent No. 3. 2 CORAM : K. K. TATED, J. DATE : 29TH NOVEMBER, 2010. JUDGMENT : . This appeal preferred by original respondent No. 2/Insurance Company against the judgment and award dated 08th August, 1995, passed by the Ex-Officio Member, Motor Accident Claims Tribunal, Jalna in Motor Accident Claim Petition No. 107/1992. The Tribunal by its order dated 08th August, 1995 awarded compensation to the tune of Rs. 75,000/- with interest at the rate of Rs. 12% per annum from the date of petition till realization for the injuries received by the respondent No. 1/original claimant in motor accident which took place on 25.06.1992. 2. Few facts of the matter are as under : The respondent No. 1/original claimant filed MACP No. 107/1992 before the Motor Accident Claims Tribunal at Jalna U/Sec. 166 of the Motor Vehicles Act (hereinafter referred to the "Said Act" for brevity) for compensation of Rs. 1,00,000/- having been injured in motor accident on 25.06.1992. The respondent No. 1 is a agent of Pgimy (Daily Collection) of Syndicate Bank 3 Badnapur, Jalna and Sanchayani savings and investment India Ltd. run at Jalna. She use to collect money from account holders from door to door and shop to shop on Luna. 3. On 25.06.1992 she was at Aurangabad for her business purposes. While she was returning to Jalna in a jeep, at about 8.00 p.m. when the said jeep came near the Nagewadi bus stop towards Jalna, one unknown truck gave dash to the jeep and the accident took place. In the said accident respondent No. 1 sustained multiple injuries on her person, particularly at her head, right hand, legs and back. Her skull was also fractured and 14 stitches were given to her skull in short operation. Because of the said accident she was fully unconscious for about six days. She also lost her business as well as strength/capacity to do business in full swing, as she use to do before accident. Therefore, she claimed sum of Rs. 2,000/- per month towards loss of earning from 25.06.1992 to Rs. 12,000/-, for extra nourishment Rs. 5,000/-, compensation for pain and sufferings Rs. 50,000/-, compensation for continuing and permanent disability Rs. 25,000/-, loss of earning power at the rate of Rs. 2,000/- per month considering the future loss of prospectus with multiplication of 30 years. Thus in all respondent No. 1 has 4 calculated the compensation to the tune of Rs. 7,92,000/-, but she claimed only Rs. 1,00,000/- for want of payment of court fees. 4. The appellant/original respondent No. 2 filed their written statement dated 07th July, 1993. They raised main contention that respondent No. 1 was gratuitous passenger in the said jeep and, therefore, the respondent No. 1/original claimant is not entitled for any compensation as same amounts to breach of terms and conditions of Insurance Policy. They further raised contention in their written statement that respondent No. 1 failed to produce cogent evidence on record to show that her income was about Rs. 2,000/- per month. Therefore, the learned counsel appearing on behalf of appellant submits that, the claim petition filed by the respondent No. 1 against the appellant is liable to be dismissed with costs. 5. The main issue involved in the present case is whether the Insurance Company can file appeal against the impugned judgment and award passed by the Tribunal as they failed to obtain leave U/Sec. 170 of the Said Act. I called upon the learned counsel appearing on behalf of appellant to show from record and proceedings and/or produce a copy of order obtained by them 5 U/Sec. 170 of the Said Act to defend the matter on all grounds from the Tribunal. He showed his inability to produce the same. 6. 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, similar provisions were in old act also 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. 7. 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 6 written statement stated that the respondent Nos. 4 and 5 committed breaches of the condition of license, without mentioning particular, condition alleged to have been 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. 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 dependants 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 dependants of deceased against the 7 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 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) 8 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, 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." 9 08. The above decision of the Apex Court and High Court fully applies to the facts of the present case. In this view of the matter, the appeal is not maintainable. The appeal is dismissed with no order as to costs. [K. K. TATED, J.] bsb/Nov. 10