1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : (1) United India Insurance Company Ltd. Versus Smt. Radha & Others (S.B. Civil Misc. Appeal No.41/1999) (2) United India Insurance Company Ltd. Versus Smt. Saroj & Others (S.B. Civil Misc. Appeal No.1438/2006) (1) United India Insurance Company Ltd. Versus Smt. Champa & Others (S.B. Civil Misc. Appeal No.1507/2005) DATE OF JUDGMENT : December 16th, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Mr. Ghanshyam Vaishnav for the appellant. Mr. Rajesh Panwar for the respondent(s). BY THE COURT : All the above miscellaneous appeals filed under Section 173, Motor Vehicles Act arise out the consolidated judgment/award dated 07.10.1998 passed by the Motor Accident Claims Tribunal, Phalodi in Claim Cases No.47/98, 46/98 and 45/98, respectively, by which, learned Tribunal awarded 2 compensation as follows : (1) Claim Case No.47/98, Smt. Radha & Others Vs. Pappu Ram & Others :- Rs.4,42,000/- and interest amount of Rs.12,000/-. (2) Claim Case No.46/98, Smt. Saroj & Another Vs. Pappu Ram & Others :- Rs.4,42,000/- along with interest @ 12% from the date of filing claim. (3) Claim Case No.45/98, Smt. Champa & Others Vs. Pappu Ram & Others :- Rs.4,42,000/- along with interest @ 12% from the date of filing claim. The facts of the case are that in an accident which occurred on 11.09.1997 when deceased Banshilal, Khumaram and Bhinyaram were going on foot at about 7 – 7.30 A.M. in the morning, between the way from Phalodi to Bitadi, one bus No.RJ 23-PO 331came at a fast speed from behind and dashed against taxi tempo No.RJ 23-PO 484, as a result of which, the taxi tempo bounced upon the deceased pilgrims and all the above three persons died. For the said incident, FIR was filed at Police Station Phalodi bearing No.110/97; and, later on, challan was filed after investigation against Pappu Ram, driver of the offending bus. Legal heirs of deceased Banshilal, Khumaram and Bhinyaram filed claim petitions before the Motor Accident Claims Tribunal, Phalodi, in which, above claim cases were registered and decided by the Tribunal. 3 In the claim petitions, after issuance of notices, reply was filed by the insurance company and defence of contributory negligence was taken on the part of drivers of both bus and taxi tempo. According to the insurance company, the bus driver was driving the bus rashly and negligently and hit the insured taxi tempo as a result of which the tempo fell down on the victims and they died. Second ground is taken by the insurance company that the driver of the tempo was not possessing valid licence, therefore, the insurance company is not liable for payment of compensation because the said taxi tempo which was insured with the appellant insurance company was not being driven by the driver possessing valid driving licence in his favour. Contention of the insurance company is that on both the above grounds learned Tribunal has come to erroneous finding and allowed compensation which is contrary to law. As per the insurance company, the Tribunal was under obligation to consider the plea of the insurance company with regard to contributory negligence in right perspective because admittedly the accident took place due to the hit caused by the bus to the taxi tempo, in which, the victims died. But, this aspect of the matter has not rightly been dealt with by the Tribunal, therefore, the impugned judgment/award is erroneous. In this view of the matter, the liability fastened upon the insurance company is erroneous because it is case of 4 contributory negligence and, for the same, the insurance company alone cannot be held responsible for payment of compensation. For the second ground of not holding valid licence by the taxi tempo driver, it is submitted that the finding of the learned Tribunal is totally baseless and rather beyond imagination though burden to prove this fact has been left upon the insurance company. In fact, this matter was to be decided by the Tribunal whether driver of the taxi tempo was possessing valid licence or not. Therefore, failure on the part of the Tribunal to decide the above plea suffers from material irregularity and illegality. As such the judgment impugned deserves to be quashed and upon the evidence on record the respondents are not entitled to get any compensation. Per contra, learned counsel appearing on behalf of the respondents submits that both the grounds raised by the appellant insurance company are not tenable in law because there is no substance in the same. While refuting the contention of the insurance company that question of contributory negligence is not decided properly by the Tribunal, it is submitted that such plea is not available to the insurance company because no permission under Section 170 of the Motor Vehicles Act was obtained and the insurer cannot avoid its liability on any other grounds except those mentioned in sub- 5 section (2) of Section 149 unless any permission is sought from the Tribunal under Section 170. To substantiate the above reply, learned counsel for the respondents invited my attention towards judgment reported in 2002 ACJ 1950, National Insurance Co. Ltd. Vs. Nicolletta Rohtagi & Others, in which it has been held that whether it is permissible for the insurance company to file an appeal questioning the quantum of compensation and finding on negligence or contributory negligence of the offending vehicle, the answer of Hon'ble Supreme Court is that an insurer cannot avoid its liability on any of the ground except mentioned in sub- section (2) of Section 149, for which, it is required to seek permission under Section 170 of the Act. For the other ground, it is submitted by learned counsel for the respondents that no such issue was framed by the Tribunal whether the taxi tempo driver was possessing valid licence or not nor any evidence was led by the insurance company to prove the fact that the taxi tempo driver was not possessing valid driving licence. Although in para 17 of the written-statement, it is stated that plea has been taken that taxi tempo driver was not possessing valid driving licence but it appears from the record and finding of the Tribunal that no evidence was produced by the insurance company to prove the plea taken by it with regard to non-possession of valid driving licence by the driver of the taxi 6 tempo. In support of his contention, learned counsel for the respondents invited my attention towards judgment of the Hon'ble Supreme Court, reported in 1985 ACJ 397, in which, it has been held that onus was on the insurance company to prove that driver had no driving licence to escape the liability, therefore, it is submitted that there is no force in this appeal. I have considered the rival submissions made by both the parties and perused the judgment/award impugned. Upon perusal of the pleadings and grounds taken by the insurance company, it emerges that no permission under Section 170 of the Motor Vehicles Act was obtained for taking plea of contributory negligence. Upon this fact alone the first ground taken by the insurance company with regard to plea of contributory negligence deserves to be rejected in view of the judgment of the apex Court in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi & Others, reported in 2002 ACJ 1950. Para 15, 16, 27 and 31 of the said judgment run as under : “15. It is relevant to note that 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 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- 7 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. 16. For the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in sub-section (2) of Section 149 of 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds. 27. This matter may be examined from another angle. The right of appeal is not an inherent right or common law right, but it is a statutory right. If the law provides that an appeal can be filed on limited grounds, the grounds of challenge cannot be enlarged on the premises that the insured or the persons against whom a claim has been made has not filed any appeal. Section 149 (2) of 1988 Act limits the insurer's appeal on those enumerated grounds and the appeal being a product of the statute, it is not open to an insurer to take any other plea other than those provided in section 149 (2) of 1988 Act. The view taken in United India Insurance Co. Ltd. v. Bhushan Sachdeva, 2002 ACJ 333 (SC), 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. Further, the view taken in United India Insurance Co. Ltd. v. Bhushan Sachdeva (supra) that since the insurance companies are nationalised and are dealing with public money/funds and to deny them the right of appeal when there is a collusion between the claimants and the insured would mean draining out or abuse of public fund is contrary to the object and intention of Parliament behind enacting Chapter XI of 1988 Act. The main object of enacting Chapter XI of 1988 Act was to protect the interest of the victims of motor vehicle accidents and it is for that reason the insurance of all motor vehicles has been made statutorily compulsory. Compulsory insurance of motor 8 vehicle was not to promote the business interest of insurer engaged in the business of insurance. Provisions embodied either in 1939 or 1988 Act have been purposely enacted to protect the interest of travelling public or those using road from the risk attendant upon the user of motor vehicles on the roads. If law would have provided for compensation to dependants of victims of motor vehicle accident, that would not have been sufficient unless there is a guarantee that compensation awarded to an injured or dependant of the victims of motor accident shall be recoverable from person held liable for the consequences of the accident. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC), it was observed thus: “In other words, the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the dependants of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has therefore, to be interpreted in the twilight of the aforesaid perspective.” 31. We have already held that unless the conditions precedent specified in section 170 of 1988 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 and, further, the Tribunal does not implead the insurance company to contest the claim in such 9 cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the grounds 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 an ward 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 an appeal on grounds specified in sub-section (2) of section 149 of 1988 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 award.” With regard to the second ground that the driver of the taxi tempo was not possessing valid driving licence, therefore, the insurance company is not liable. In my opinion, for this ground, the burden was upon the shoulders of the insurance company to prove this fact; but, upon perusal of the record and judgment/award of the Tribunal it is revealed that no such issue was in existence before the Tribunal nor any evidence was led by the insurance company that plea was taken in the written- statement, therefore, the burden to prove the fact was upon the insurance company. Therefore, such plea which is taken by the insurance company lacks legal foundation. It is well settled law that if any plea is taken in the written-statement, then, onus lies upon the insurance company to prove that driver was not 10 possessing any valid driving licence and without proving the fact pleaded before the Tribunal no such plea can be accepted for quashing the award passed by the Tribunal. In my opinion, upon both the above grounds taken by the insurance company the award impugned cannot be interfered with because as per afore-quoted judgment of the apex Court, first of all, insurance company has failed to obtain any permission under Section 170 of the Act and, secondly, failed to prove or establish the fact that driver of the taxi-tempo was not possessing valid driving licence. In this view of the matter, the award impugned does not required to be interfered with. Hence, all the above appeals are hereby dismissed. (Gopal Krishan Vyas) J. Ojha, a.