1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 528 OF 1994 The New India Assurance Company, Ltd. Divisional Office, Mandore Market, Near Panchmukhi Hanuman Temple, Jalgaon, through its Authorised Official Shri Syed Khaleel S/o Syed Chand, Senior Divisional Manager at Aurangabad .. Appellant Versus 1. Smt. Ushabai W/o Jagannath Patil, Age : 44 Years, Occu. : Household, R/o C/o B. N. Patil, 56, Jiwan Nagar, Jalgaon, Dist. Jalgaon. 2. Sanjay S/o Jagannath Patil, Age : 25 Years, Occu. : Student, R/o as above. 3. Sachin S/o Jagnnath Patil, Age : 22 Years, Occu. : Student, R/o As above. 4. Shri Kautik S/o Manohar Kshirsagar, Age : 27 Years, Occu. : Motor Driver, R/o Bodwad, Tq. Bhusawal, District Jalgaon. 2 5. Shri Hirachand S/o Kanhyalal Kotecha, Age : 53 Years, Occu. : Jeep owner and business, R/o as above. .. .. Respondents Shri A. S. Usmanpurkar, Advocate h/f Shri K. V. Kulkarni, Advocate for the Appellant. Shri A. N. Nagargoje, Advocate h/f Shri Vijay J. Dixit, Senior Counsel for the Respondent No. 1 to 3. CORAM : K. K. TATED, J. DATE : 15TH NOVEMBER, 2010. JUDGMENT : . This appeal by the New India Assurance Company Ltd is directed against the judgment and award dated 28th January, 1994 passed by the Motor Accident Claims Tribunal, Jalgaon in M.A.C.P. No. 178/1990 by which the Tribunal awarded compensation of Rs. 1,50,000/- after adjusting Rs. 15,000/- earlier paid on account of no fault liability with interest at the rate of Rs. 12% per annum from the date of filing of the application till realization. 2. Briefly stated the facts are that : On 19th April, 1989 at about 6.00 a.m. Jagannath Shankar 3 Patil husband of the respondent No. 1 and father of minor Sanjay and Sachin, the respondent Nos. 2 and 3 died in a motor accident while travelling in a jeep belonging to respondent No. 5 and driven by respondent No. 4 from Jalgaon to Bhusawal. 3. The respondent Nos. 1 to 3 filed claim petition U/Sec. 166 of the Motor Vehicles Act 1988 (hereinafter referred as "Act") before the Motor Accidents Claim Tribunal, Jalgaon. The respondent Nos. 4 and 5 driver and owner of the jeep respectively opposed the claim by filing written statement. The appellant also filed written statement dated 19th April, 1991 and opposed the claim mainly on the ground that due to breach of the condition of the Insurance Policy by the respondent Nos. 4 and 5 without specifying the conditions. The learned Member of Motor Accident Claim Tribunal allowed the claim of respondent Nos. 1 to 3 and held that they were entitled to Rs. 1,65,000/- as compensation after adjusting Rs. 15,000/- paid earlier as no fault compensation passed a award for Rs. 1,50,000/- with interest at the rate of Rs. 12% per annum from the date of filing of the application till realization. 4. The appellant Insurance Company feeling aggrieved filed 4 present appeal against the judgment and award dated 28th January, 1994 passed by the Member, Motor Accidents Claim Tribunal, Jalgaon, on various grounds. 5. I have heard learned counsel for the parties at length. Mr. Usmanpurkar, learned counsel appearing on behalf of apellant submits that the Tribunal erred in coming to the conclusion that the respondent Nos. 1 to 3 are entitled to compensation to the tune of Rs. 1,50,000/- with interest at the rate of Rs. 12% per annum. He submits that the Tribunal failed to consider that on the date of accident respondent No. 4/driver was not holding valid license. He further submits that on the date of accident said vehicle was carrying more than six passengers i. e. in violation of the terms and conditions of the Insurance Policy, therefore, Insurance Company is not liable to pay any compensation. 6. The learned counsel further submits that the Tribunal erred in coming to the conclusion that the deceased was not gratuitous passenger in the vehicle. He submits that the said vehicle was hired by the deceased for going to Bhusawal from Jalgaon. In view of the facts and circumstances, he submits that 5 Insurance company is not liable to pay any compensation to the respondent Nos. 1 to 3. 7. Mr. Nagarjoge, learned counsel appearing on behalf of respondent Nos. 1 to 3 supported the Judgment and Award by the Tribunal. 8. 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. 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. 6 9. 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 condition of license, without mentioning particulars, 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. 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. 7 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 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 8 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, 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 9 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. 10. 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. 11. In the result, appeal is dismissed with cost of Rs. 2,000/- [K. K. TATED, J.] bsb/Nov. 10