^ IX HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble ShriDilip Raosaheb Deshmukh. J. Miscellaneous Appeal No.784 of 2003 United India Insurance Company Limited versus Anil Kumar Sahu and two others ORDER Postfor S -05-2008 Sdf- Dilip Raosaheb Deshmukh Judge Tiffc^ B lli hl;ll -s^s^Wv^^fs'vS^s'ssa'^. K;"KSS:@ •Y- HIGH COURT OF CHHATTISGARH: BILASPUR Single Bench: Hon'ble Shri Dilip Raosaheb Deshmukh, J. Appellant (Non-appellant No.31 M.A.No. 784 of 2003 :• United India Insurance Company Limited, Power House, Bhilai, (Tara Compiex Power House, Bhilai) Tahsil and District Durg (CG) Versus Respondents 1. 2. Anil Kumar Sahu, S/o Kisan Lal Sahu, aged about 26 years Kisanlat Sahu, S/o Panchram Sahu, aged 50 years, both houses of Village Uria/Kumhari Urla, Thana, (R.P. Chowk, Charauda Tahsil Patan, District Durg (CQ) Non-appellant Nos. 1 & 2. : 3. Leelaram Devangan, S/o Basanth Devangan, aged about 38 years, Business Readymade Kapada Kirana tatha galla Karidi avem Vikri N'lvasi, Senkar Nagar, Durg, Tahsit and District Durg (CG) Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act. 1988. Present: Shri Sanj'ay S. Agarwal, counsel for the appellant. Shri Raja Sharma, counsel for respondents No.1 & 2. None appears for respondent No.3 though served. ORDER (Passed on 08.05.2008) The insurer has filed this appeal against the award dated 13.5.2003 in claims case No.74/1999 by the IV"1 Additional Motor Accidents Claims Tribunal, Durg (CG) (henceforth the 'Tribunal), whereby in an injury case, compensaUon of Rs.2,47,009/- has been awarded 'jointly andseverally against the appellant and the respondents No.1 & 2 i.e. -driver sand jthe owner of the motor cycle bearing No.MP 24-EB/5029. (2) Despite service of nottce, respondent No.3 Leela Ram Dewangan/ctaimant did not contest this appeal. , ^- ^'. (3) Admittedly, on 8.9.1998, the respondent No.3 Leela, Ram Dewangan was riding on his scooter from Durg to Uria. He was canying a bag pf sugar weighing about 15 Kgs near his feet. It was also not disputed by the ctaimant in the Tribunal that the accident occurred on a cun/e. (4) The Tribunal cpnsidered the fact that the claimant was earrying a bag containing 15 Kgs of sugar near his feet on the scooter and held that to some extent, the claimant was also responsible for the accident. However, it did notapportion the compensation awarded between the respondent No.3/claimant on the one hand and the appeilant and respondents No.1 & 2 on the other. The Tribunal awarded compensation of Rs. 2,47,009/- jointly and severally against the appellant and the respondents No.1 & 2 with interest @ 6% per annum from the date of application till realisation. The Tribunal atso ordered that if the compensaUon wasnot deposted within two months, the appellant and respondente No.1 & 2 herein shall also be jointly and severally liable to pay interest @ 12% per annum on the ameunt awarded. (5) The respondent No.l/dr'rver and resppndent No.2/owner of the motor cycle No. M.P.24-EB/5029did not preferany appeal or cross objection against the award. (6) The appellant/insurer preferred the appeat on the following grounds:- a. that, the Tribunal acted illegally and/or wrth material irregularity in fastening the tiability upon the insurancecompany. b. the respondent No.l/driver did notposses valid driving licence to drive a motorcycle on thedate of accident. c. that, in view of the finding that the respondent _»« No,3. was also responsible for the accidentto some extent, compensation ought to have Aeen apportioned by the Tribunal. ^=^?-=a^ri^^^£^^^- !• •Nl' •V •;.-':;'-':-"' (7) Learned counsel for the appellant/insurer did not dispute that permission under Section 170 of the Motor Vehicle Act to contest the claim onallor any of the grounds that are availabte tothe person against whom the claim was preferred, was not sought by the insurer form the Tribunat. (8) Learned counsel for the appellant/insurer argued that in view of the finding recorded by the Tribunal that the respondent No.3/claimant was alsp responsible to some extent in causing the accident, the liability to pay compensation ought to have been apportioned by the Tribunal. it was also urged that the Tribunal failed to notice that the permanent disability certificate (Ex.P-7) on the basis of v(hich a finding that ctaimant had sustained 50% permanent disability was recorded, was ohtained by the ciaimant from Dr. G.S. Thakur after fiting the apptication for compensation under Section 166 of the Motor Vehicles Act. it was also urged that the Tribunal did not record any finding regarding culpabte negligence of the respondent No.1 in the accident. It was further urged that due to non-examination of Dr. G.S. Thakur, the appellant/insurer did not have any opportunity to cross examine Dr. G.S. Thakur on the question of permanent disability having been suffered by respondent No.S/claimant. Lastty, it was uiged that the admission by respondent No.S/claimant that the accident occurred on a cun/e and that hewas carrying a bag load of 15 Kgs sugar near his feet, the Tribunal ought to have held that the accident occurred due to the negligence of the respondent No.S/claimant. Ground Np.(b) mentioned inpara 6 (supra) was not pressed. (9) Shri Raja Sharma, counsel appearing on behalf of respondents No.1 & 2 adopted the arguments of the leamed counsel for the appeliant and submitted thafeven though the respondents No.1 & 2 did not prefer any cross objection, this Court had jurisdiction under order 41 Rute 33 of the CPC to pass any order which ought to have been passgd by the Tribunal for ctoing complete justice between Uie parties. ,' __ - 4 % (10) Having considered the rival submisstons, 1 have perused the record. tn National InsuiarKse Compattv LM. Chandifiarh v. Nicolletta Rohtacii and others AIR 2002 Supreme Court 3350, the Apex Court held as under:- _ xxxxxxxx xxxxxxxxxx xxxxxxxxxx "<7. Before pmceeding ft/riber, tf may be noticed that white 'The Motor Vehictes Act, 1939' was in force, SecSon 110-C (2A) was inserted theiein ihffiie year 1970 wMch corresponds to Section 170 of the 1988 Act. The said proviston provkies Siat in course ofan inquiry ofa clahn if the Tribunal is satistied that there is a coltuston belween the clamant and the insuied or fhe insuied teils to contest tt>e ctaim. e Tribunal tor reasons to be nscorofed in writing, direct that ffie insurer wfto may be tiable in respect of such claim. shaff fae unp/eacted as a party to the proceeding and the insurer so impleacted shall thereupon have, without pfejudice to fte piavistons contained in sub-sectton (2) of SecSon 149, (fte fyht te contest ie claim on all or any of the giounds ffisat are availabte te e person aganstwhom the chim has been macfe. 18. The aforesakl pmviskins shcw (wo aspects. Firstty, that the insurer has onty statutory ctefences availabte as providedinsub-ssction(2)of Section 149 of 1988 Act , and, secondty, where fte Tribunal is of the view th^ ' there is a cotlusion betvwen the cleumant ancf the msui^, or the insuredtkies not confest the claim, the snsuiercan be made a pariy and on such impleadment the insurer shall have alldefences available to it. Then comes the provistons of Section 173 wHch pmwdes for an appeal agaihst ihe award given by the Tribunal. t/npfer Secfon 173, any'person aggrieved by an awaid is entitted to pfefer an appeal to the Higt) Court. Ve/y often Vhe /^y^ /.J/ ^' E^ ^y -'<lfl question has arisen as to wheffier an insurer is enttttecf to file an appeal on the grouncfe avallable to the insuied wten sffwr- ihere is a colluaon between tte claamants and (fte insured or when the insured has not tiled an appeal before ttw High Court quesSonmg the quantum of compensation. The consistent view of Vws couri had been that the insurer has no right te fife an appea/ to challenge the quantum of compensation or iinding of the Tribunal as regards the negligence or contrttsutory negligence ofoffending vehfcfe Xxxxxxxxx xxxxxxxxxx xxxxxxxxxx xxxxxxxxxxx 26. For the aibresaid reasons, an insurer if aggrie\ d against an award, may file an appeal only on thosegmunds and no other. Hawever, by virtue of Sectioh 170 of the 1988 Act, where in course ofan erKjuiry the Ctaims Tribunalis satisRed Siat (a) there is a collusion beiween (fte person making a claim and the person against whom the claim has been made or (b) (fte person ageunst whom Vw claim has been made has isslecS to contest fte claim, ffie tribunal may, fbr reasons te be recorcfed in wmting, implead fte insurer and in that case it is permisabte for the insurer to contest the claim also on the gmunds which are avalable to the insured or to (fte person against whom the clsam has been made. Thus, unless an wder is passed by se Mbunat pemvWng (fte insurer to avail #ie gmunds avaiSable te an insured or any other , person againstwhom a claim has been macte on being safoffed of fhe hw corKSitions specWed in Secfion 170 o/ the Act, it is not permtssitile to the insurer to contestthe claim on ffise gioundSgWhich are avaSabte to the insured or to a person agaihst whom, a ctaim has been macfe. a"> Thus where corKStiow precedent embodied in SecSon 170 is saVsfied and award is acft/erse to the infeiiest of the insu/er, the insurer has a nght to ffte an sppeal lr'r-!]t!lTi .-S-l-tUt»_-,-s.. r~~S/^Al.<fr-<^&U.^. TlfcJ^ttf.yh' 6 ^. challenging the quantum af compensaSai or negSgence or contributory negligence of ttw offending vel'ncleeven if the insured has not tiled any appeal aganst the quantum of compensaSon. Sections 149, 170 and 173are partaf one Scheme and 'rfwe gsve any ch'fferent interpretatton to Section 172 ofthe 1988 Act, the same wouktgo contrary fo the Scheme and object of the Act. Xxxxxxxxxxxxxxy xxxxxxxxxxxx xxxxxxxxxxxxx 32. For fte aforesaki reasons, our answer te fhe question is that even if no appeal is prefoffed under Sectton 173 of 1988 Act by an insiired against fhe awariS ofa Tribunal, it is not permi3sible for an insurer to tile an appeal questioning the quantum of compensaffon as well as findings as regards regSgence or contributory negSgence ofttw oftending vehicte." (11) In view of the fact that admittedly the appellant did not make any application under Section 170 of the Motor Vehicles Act before the Tribunal for permission to contestthe claim on ail grounds that were available to the insured, the appeal by the insurance company on the ground of quantum or negligence or contributory negligence is not tenable. The owner and driver not having preferred any appeal against the award passed by the Tribunal and the appeal by the insurer not being tenable, the submission made by the learned counsel for the respondents No.1 & 2 is rejected. (1g& Inview of the above, the appeal has no merit and is accordingiy dismissed. „Sd/- Dilip Raosaheb Deshmukh Judge