FA/759/1991 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 759 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASSURANCE CO.LTD. - Appellant(s) Versus JAYSUKHLAL JASHWANTLAL MEHTA & 2 - Defendant(s) ========================================================= Appearance : MR BH BHAGAT for Appellant(s) : 1,MR BR SHAH for Appellant(s) : 1,MR SANDIP C SHAH for Appellant(s) : 1, M/S THAKKAR ASSOC. for Defendant(s) : 1, DELETED for Defendant(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 15/07/2008 ORAL JUDGMENT 1. Heard learned Advocate Mr. Sandeep C. Shah for the appellant. M/s. Thakkar Associates is appearing for respondent NO. 1. Respondents No. 2 and 3 are deleted. FA/759/1991 2/11 JUDGMENT 2. Said appeal is filed by the appellant, New India Assurance Co. Ltd. original opponent NO. 3 challenging the judgment and award passed by the MACT Porbandar in MAC Petition No. 132 of 1990 dated 30.3.1991 wherein the Claims Tribunal at Porbandar has awarded compensation of Rs. 2,99,000.00 in favour of the claimants and against the opponents with 12% interest per annum from the date of the claim petition till realization with proportionate costs. The appeal has been valued at Rs.1,79,000.00 for the purpose of court fees. 3. The facts of the present case are to the effect that the accident occurred on 19th May, 1990 at about 8.30 p.m. When the applicant claimant had gone for going to VIP Guest House situated in the Birla Colony, Porbandar. At that time, he was walking on absolutely right side of the road. When he had reached near the Laxminarayan Temple, at that time, original opponent NO.1 had driven his auto rickshaw in rash manner with full speed and without taking proper care, came from the rear side of the claimant, dashed the vehicle with the claimant as a result of which, the claimant had suffered injuries including serious and grievous injuries in the left leg and various fractures were received by him. It was alleged by the claimant that he had to incur expenditure for hospital charges, doctor charges, charges for nutritious diet, transportation etc. and he had to remain as in FA/759/1991 3/11 JUDGMENT door patient in Sahyog Hospital Porbandar from 19.5.90 to 24.5.90 and thereafter again, he was hospitalised as indoor patient in KEM Hospital, Poona from 14.6.90 to 19.6.90 and thereafter also medical treatment had remained continued. Again, he was hospitalized from 26.7.90 and thereafter, plaster was done on the whole left leg of the claimant and thereafter again he was admitted in hospital from 4th September, 1990 as indoor patient and ultimately, permanent disability remained in the leg of the claimant because of the injury received in the accident. The claimant was not able to walk properly and he was not able to work in service for about six months and, therefore, claim for Rs.4,90,000.00 was made by the claimant against the opponents before the claims tribunal. 4. In the proceedings of the claim petition before the claims tribunal, notices were issued against the opponents but opponents no.1 and 2 had not appeared and thereafter, notices against them were issued in the Government Gazette and yet they had not remained present before the claims tribunal. Opponent NO.3 Insurance Company had appeared and filed its written statement before the claims tribunal and, thereafter, issues were framed by the claims tribunal at Exh. 10 and, thereafter, tribunal held that the claimant has received injuries because of the rash and careless driving of the driver involved in the accident and, therefore, claimant is entitled to FA/759/1991 4/11 JUDGMENT receive compensation of Rs.2,99,000.00 from all the opponents jointly and severally with 12 per cent interest and proportionate costs. 5. The Claims Tribunal has discussed the evidence on record. Police case was lodged against the driver of the offending vehicle. Copy of the FIR was produced on record at Exh. 137. Complainant and claimant both were going from Madhavpur towards Porbandar Road. At that time, opponent NO. 1 drove his auto rickshaw negligently and rashly endangering the life of a person in a full speed, caused accident with the claimant at about 8.40 p.m. Exh. 38 is the panchanama of the scene of offence. As per the panchanama, as observed by the claims tribunal, there were no marking of brakes on the road and the road was having width of 50 ft. and yet no sufficient care was taken by the driver of the offending vehicle and ultimately, the tribunal has discussed that this accident had taken place because of the rash driving of the driver of the auto rickshaw. Driver of the rickshaw was not examined before the claims tribunal. Opponent NO.3 is having insurance of the auto rickshaw. The Claims Tribunal has considered permanent disability certificate of 40 per cent vide Exh. 133 and looking to Exh. 135, total salary of Rs.7500.00 was received per month by the claimant and the tribunal has examined the matter on the basis of the record which was produced by the claimant before the claims FA/759/1991 5/11 JUDGMENT tribunal wherein number of medical certificates and papers of medical treatment were produced before the claims tribunal. Tribunal has taken into consideration the injury received and permanent disability suffered by the claimant on the basis of relevant documents produced on record by the claimant before the claims tribunal. Considering two frqctures suffered and treatment taken for six months and hospitalization of the claimant, tribunal was of the opinion that Rs.15000.00 should be awarded for mental pain and shock and suffering and accordingly it was allowed. The claimant was working as Senior Commercial Manager in M/s. Saurashtra Chemicals at Porbandar. Therefore, considering the medical certificate of 40 per cent permanent disability and the process of functioning of the body as a whole, tribunal considered 20 per cent disability for the body as a whole and, therefore, awarded Rs.2000.00 p.m. for 20% disability for the body as a whole considering total monthly income of Rs.10,000.00. Considering the age of the claimant 52 years at the time of accident, tribunal applied multiplier of 8 and held that the claimant should be awarded Rs.1,92,000.00 towards loss of future income (Rs.2000x12x8). Considering the nature of injury suffered by the claimant, the claims tribunal awarded Rs.32,000.00 to the claimant for nutritious diet and Rs.60,000.00 towards loss of actual income FA/759/1991 6/11 JUDGMENT considering the fact that the claimant has not been able to do any work for a period of six months. The Claims Tribunal also awarded Rs.15000.00 towards mental shock and suffering and, thus, the claims tribunal awarded total compensation of Rs.2,99,000.00 in favour of the claimants and against the opponents jointly and severally with interest thereon at the rate of 12 per cent per annum from the date of claim petition till realization with proportionate costs. 6. I have perused the impugned award made by the Claims Tribunal. Looking to the evidence on record and the relevant documents as considered by the claims tribunal, according to my opinion, the claims tribunal has rightly examined the matter on merits and has rightly awarded the compensation to the claimant for receiving severe and serious injuries in the accident. As per my opinion, the amount awarded by the claims tribunal cannot be considered to be on higher side but it is just and reasonable compensation awarded by the claims tribunal. So, on merits, the Tribunal has not committed any error in passing the award in question. Therefore, on merits, the impugned award does not require any interference of this Court in this appeal. 7. Learned Advocate Mr. Thakkar appearing for the claimants has raised contention before this Court that in entire appeal, the appellant insurance company is challenging the award on FA/759/1991 7/11 JUDGMENT quantum and negligence for which insurance company is not entitled as the insurance company has not obtained permission to challenge the quantum and negligence. Learned Advocate Mr. Shah has fairly submitted that the insurance company has not obtained any permission from the claims tribunal to contest the claim of the claimant on quantum and negligence. Therefore, in absence of such permission, the insurance company is not entitled to challenge the award on quantum and negligence. This aspect has been examined by the Division Bench of this Court in ORIENTAL INSURANCE CO. LTD. V. MANJULABEN JAYANTIBHAI PATEL & ORS. reported in 2003 (3) GLR page 2018 wherein it has been held by the Division Bench of this Court as under in para 10 and 11: “10. Having carefully heard the learned counsel for the parties and having carefully gone through the decision in National Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors., 2002 (7) SCC 456, we find considerable substance in the submissions made on behalf of the original claimants that the present appeals filed by the Insurance Company for challenging the award by assailing the finding of negligence and the finding on the quantum of compensation are not maintainable because the larger Bench of the Apex Court has already held in National Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors. (supra) as under:- "(u)nless an order is passed by the Tribunal FA/759/1991 8/11 JUDGMENT permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made."... .... "The view taken in United India Insurance Co. Ltd. vs. Bhushan Sachdeva & others (supra) that a right to contest would also include the right to file an appeal is contrary to well established law that creation of a right to appeal is an Act which requires legislative authority and no Court or Tribunal can confer such right, it being one of limitation or extension of jurisdiction." "(u)nless the conditions precedent specified in Section 170 of the Act are satisfied, an Insurance Company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim, it is open to an insured to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits, in that case it is open to the insurer to file an appeal against the award on merits, if aggrieved. In any case where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of the Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of the award." (emphasis supplied) 11. The aforesaid principles laid down by the Apex Court after analyzing the scheme of the Motor Vehicles Act, 1939 as well as the scheme of the Motor Vehicles Act, 1988 and several decisions make it abundantly clear beyond any pale of controversy that an Insurance Company cannot file an appeal against the award of the Tribunal for challenging the findings of negligence and on quantum of compensation, unless the Insurance Company had made an application before the Tribunal under Section 170 of the Motor Vehicles Act, 1988 and a specific order was made by the Tribunal in writing permitting the insurer to avail the grounds available to an insured or any other person against whom the claim has been made. FA/759/1991 9/11 JUDGMENT The decision of the larger Bench in National Insurance Co. Ltd. vs. Nicolletta Rohtagi (supra) has completely concluded the controversy and it is not open to this Court to circumvent the said binding decision by culling out any implied permission of the Tribunal in favour of the Insurance Company as is sought to be contended by the learned counsel for the appellant-Insurance Company.” 8. In case of United India Insurance Co. Ltd. And another versus Shilpa Jigishbhai alias Jignesh Vyas and others reported in 2005 ACJ 1645, the Division Bench of this Court considered this aspect and observed as under in para 4 of the judgment: 1. “4. In National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others, AIR 2002 SC 3350, the apex court has overruled the decision in United India Assurance Co.Ltd. versus Bhushan Sachdev reported in 2002 ACJ page 333, referred to by Mr. Nanavati. [See New India Assurance Co.Ltd. v. Smt. Tara Sundari Phauzdar and others, AIR 2004 Calcutta 1 Full Bench and National Ins. Co. Ltd. v. Challa Bharathamma and others (2004) 8 SCC 517; Chinnamma George and others v. N.K. Raju and another (2000 ACJ 777). Undisputedly, the Insurance Company has not sought permission under section 170 of the MV Act, 1988 to contest the claim on all available grounds, therefore, FA/759/1991 10/11 JUDGMENT such challenge without permission under section 170 of the MV Act, 1988 is not permissible. In the present case, the appeal is filed by the Insurance Company challenging quantum which is not available defence under these provisions, therefore, it cannot be raised by the Insurance Company. Owner did not file written statement nor appeared at any stage before the Claims Tribunal to contest the claim petition. Therefore, owner also cannot challenge the award on merits as no contention was raised by the owner before the Claims Tribunal. For these reasons, the appeal filed by the Insurance Co. is not maintainable.[See Oriental Insurance CO. Ltd. versus Manjulaben Jayantibhai Patel and others{2004 ACJ 172 (Gujarat)” 9. In view of the aforesaid two decisions of the Division Bench of this Court, the Insurance Company is not entitled to challenge the impugned award on quantum and negligence for want of the said permission from the Claims Tribunal. In this case, it is an undisputed fact that the insurance company has not obtained such permission from the claims tribunal to contest the claim of the claimant on quantum and FA/759/1991 11/11 JUDGMENT negligence and, therefore, in view of that, this appeal is not maintainable in absence of such permission to contest the claim on quantum and negligence. Therefore, on that ground also, present appeal is not maintainable. 10.No other contention was raised by the learned Advocate Mr. Shah for the appellant insurance company before this court. Therefore, I have considered the legal contention raised by the learned Advocate Mr.Thakkar. I have also considered the award on merits. According to my opinion, the claims tribunal has rightly awarded the amount of compensation to the claimant and in doing so, the claims tribunal has not committed any error requiring interference of this Court. Hence on both the grounds, the appeal fails and accordingly, appeal is dismissed with costs. 11.It is directed to the claims tribunal to disburse entire amounts remaining with the claims tribunal to the respondents claimants with accrued interest thereon, if any, till date immediately and without any delay while encashing FDRs, if any, without fail and without any delay. (H.K. Rathod,J.) Vyas