1 FA: 1125/1997 29.4.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAE JURISDICTION FIRST APPEAL NO. 1125 OF 1997 United India Assurance Co. Ltd Mumbai Regional Office, Maker Bhavan I, 3rd Floor, New Sir V.T. Road, Churchgate, Mumbai .... Appellant vs. Milind Dattaram Bandagle .... Respondents minor through natural guardian Dattaram Rama Bandagle, Laxmi Dattaram Bandagle * * * * Mr. M.G. Barve, Advocate for the appellant. Mr. S.M. Railkar, Advocate for respondent no.2. CORAM :- Smt. R.P. SondurBaldota, J. 29th April, 2011. JUDGMENT : 1. The insurer has preferred this appeal against the judgment 2 FA: 1125/1997 29.4.2011 and award of the Motor Accident Claims Tribunal, Alibag to challenge the quantum of compensation awarded to the respondent, the original claimant. The owner of the offending vehicle has not been impleaded to the appeal. The owner has also not preferred any appeal to challenge the impugned judgment and award. The two questions that fall for consideration in the appeal are (i) whether an insurance company, which had not moved the Tribunal under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act”) can maintain an appeal to “ challenge quantum of the compensation awarded in a motor accident claim petition, where no appeal is preferred by the insured, (ii) whether leave under Section 170 of the Act can be granted to the insurance company for the first time in the appeal proceedings. 2. The respondent then a minor had filed application to the Tribunal claiming compensation for the injuries sustained by him in a motor vehicle accident. The opponents to the claim petition were the owner of the offending vehicle, the driver of the offending vehicle and the insurer of the offending vehicle. On receipt of the 3 FA: 1125/1997 29.4.2011 notice of the application, all the opponents had appeared before the Tribunal through their respective counsel, but failed to file written statement to contest the claim. The oral evidence in the application was limited to one witness examined by the claimant. The witness had been subjected to cross-examination by the appellant, insurer. On appreciation of the oral and documentary evidence, the Tribunal awarded compensation of Rs.87,100/- with interest @ 12% per annum from the date of the petition till realisation. 3. The grounds of challenge in the appeal by the insurance company are entirely based on the merits. The appellant contents that there was no negligence on the part of the driver of the offending vehicle and hence the owner of the offending vehicle is not liable to pay compensation to the respondent. It also contends that the compensation awarded to the respondent amounts to unjust enrichment and the calculation of the compensation is not in accordance with the established principles and admitted evidence on record. 4. Section 149 (1) of the Act provides that after the issuance of 4 FA: 1125/1997 29.4.2011 the certificate of insurance, the insurance company shall satisfy the award against the insured as if it were the judgment debtor. Section 149(2) of the Act lays down that an insurance company can defend the action only on the ground of the breach of the condition of the policy referred to in the Sub-section or on the ground that the policy is void for the reasons referred to in the Sub-section. Section 149(7) of the Act provides that the insurance company cannot avoid the liability to any person entitled to any benefit of any judgment or award referred to in Sub-section 1 except in the manner provided in Sub-section 2 of the Act. Section 170 of the Act, however, enables an insurance company to make an application to the Tribunal for leave to contest the claim on all the grounds available to the insured on satisfaction of the Tribunal that either there is collusion between the person making the claim and the person against whom the claim is made or the person against whom the claim is made has failed to contest the claim. 5. Thus, the above scheme of the Act is seen to be such that ordinarily the defence available to the insurer while contesting the petition for compensation is limited to the statutory defences 5 FA: 1125/1997 29.4.2011 provided by Section 149(2). The defence can get expanded to all the general defences in only two circumstances. The first circumstance is where there is collusion between the claimant and the owner of the vehicle. The second circumstance, is where the owner i.e. the insured fails to contest the claim. Further, for availing itself to the expanded defence, the insurer must apply to the Tribunal seeking leave for the purpose which leave is to be granted on due consideration of the application. 6. Undisputedly the appellant herein had not moved the Tribunal seeking leave under Section 170 of the Act. In fact, such an application could not have been moved by it since it had not even filed the written statement to contest the claim. IN the circumstances, Mr.Railkar, the learned counsel for the respondent- claimant submits that the appeal filed by the insurer challenging the judgment and award compensation on merit is not maintainable in view of Section 149 read with Section 173 of the Act. He also submits that the legal position in this regard is no more res integra in view of the decisions of the Apex Court in Shankarayya and another vs. United India Insurance Company 6 FA: 1125/1997 29.4.2011 Ltd. and another reported in AIR 1998, Supreme Court, 2968 and National Insurance Co. Ltd., Chandigarh vs. Nicoleetta Rohtagi and others, reported in (2002) 7 Supreme Court Cases, 456. Mr. Barve, the learned counsel for the appellant, however submits that certain aspects of the issue had not been placed before the Apex Court at the time of consideration of the questions in the two decisions cited, which aspects are required to be considered by this court. He further submits that in any case, the Apex Court itself in its subsequent decisions has expressed a view that the provisions of Section 149 and Section 170 of the Act require reconsideration. 7. Mr. Barve submits that permission in writing under Section 170 of the Act is required only when the insurer is not impleaded to the claim petition. If the insurer is already impleaded, no such permission is required and it is open for the insurance company to contest the claim petition on all grounds including the merits of the claim. He refers to Section 168 of the Act to submit that the Tribunal is duty bound to make an award determining the amount of compensation which appears to it to be just. Therefore, the 7 FA: 1125/1997 29.4.2011 appellant cannot be restrained from assisting the Tribunal in arriving at just compensation to be awarded to the claimant. The second argument of Mr. Barve is that in the facts and circumstances of the present case, it must be deemed that there was an oral leave granted under Section 170 of the Act on an oral application on behalf of the insurance company. However, it is not the submission of Mr. Barve that an oral application infact had been made before the Tribunal, which had been orally allowed. The argument of Mr.Barve is that the fact that the appellant was allowed to cross-examine the respondent's witness on merits of his case i.e. on the question of liability of the owner to pay compensation and the quantum of compensation to be awarded would mean that the required leave had been granted to the appellant. In the alternative, he submits that nothing prevents this court from granting the leave to the insurer at the stage of the appeal. 8. I will now refer to the two decisions cited by Mr. Railkar. In the first decision i.e. in Shankarayya's case (supra), the Apex Court was directly dealing with the question whether insurance company 8 FA: 1125/1997 29.4.2011 could have filed an appeal in the High Court against the award of Motor Accidents Claims Tribunal to get the quantum of compensation reduced when the insured had not filed such appeal and when the insurance company had not moved the Tribunal under Section 170 of the Act for getting the right to contest the proceedings on merits. The facts of the case before the Apex Court were similar to the facts of the present case to the extent that the insurer was permitted by the Tribunal to contest on merits despite not following the procedure laid under Section 170 of the Act. The Apex Court was of the view that the insurance company was clearly incompetent to file an appeal on the merits of the claim before the High Court. In the reasons stated in the judgment, to justify its view, the Apex Court after noting the provision of Section 170 of the Act observed as follows : 4. “ It clearly shows that the Insurance Company when impleaded as a party by the Court can be permitted to contest the proceeding on merits only if the conditions precedent mentioned in the Section are found to be satisfied and for that purpose, the Insurance Company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants 9 FA: 1125/1997 29.4.2011 themselves had joined respondent no.1- Insurance Company in the Claim Petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance. That was not an order of the Court itself permitting the Insurance Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, respondent no.1 – Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal.” It is thus seen that the argument of Mr. Barve that the oral permission under Section 170 should be inferred from the fact that the insurer was permitted to put questions in cross-examinations on the merits has already been dealt with by the Apex Court and it cannot be said that this aspect was not brought to the notice of the Apex Court in its reported decisions. 9. The view in Shankarayya's case was reaffirmed by the Apex Court in Nicoleetta's case decided by a larger Bench of three Judges. The question formulated by the Apex Court for its consideration in that case reads as follows :- Where an insured has not preferred an appeal under “ section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as '1988 Act) against an award given by the Motor Accidents Claims Tribunal (hereinafter referred to 10 FA: 1125/1997 29.4.2011 as 'the Tribunal') is it open to the insurer to prefer an appeal against the award by the Tribunal questioning the quantum of compensation, as well as the finding as regards the negligence of the offending vehicle”. After noting the provisions of Section 147, 149, 170 and 173 of the Act and the scheme of the Act, the Apex Court at paragraphs 15 and 16 of the decision observed as follows : 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 policy be 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- 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 nor more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds.” 11 FA: 1125/1997 29.4.2011 10. One of the argument of the insurance company in Nicoletta’s case was that non filing of an appeal by the insured amounted to failure on his part to contest the claim and that the right to contest included the right to file an appeal against the award of the Tribunal. The contention was rejected by the Apex Court with following observations at paragraph 26. 26. “ For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insurer or to the persons against whom the claim has been made. Thus, unless an order is passed by the Tribunal 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. Thus, where conditions precedent embodied in Section 170 are satisfied and the award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to section 170 of the 1988 Act, the same 12 FA: 1125/1997 29.4.2011 would go contrary to the scheme and object of the Act.” The Apex Court also noted at paragraph 27 of the judgment that the right of appeal is not an inherent right or a common law right, but is a statutory right. If the law provides that an appeal can be filed on limited grounds, there can be no enlargement of the grounds on the premise that the insured or the persons against whom a claim has been made have not filed an appeal. Section 149(2) of the Act limits the insurer's appeal on those enumerated grounds and the appeal being the product of the statute, it is not open to an insurer to take any plea other than provided n Section 149(2) of the Act. 11. The other contention urged by the insurance company before the Apex Court in the same case was that if there is a collusion between the claimant and the insurer or the insured does not contest the claim, and the Tribunal does not implead the insurer to contest the claim on grounds available to the insured or where the insurer files an application for permission to contest the claim on merit and the same is rejected or where the claimant has obtained an award by playing fraud, in such cases the insurer has right of 13 FA: 1125/1997 29.4.2011 appeal to contest the award on merits and such an appeal would be maintainable. This contention was also rejected by the Apex Court observing that 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, it is open to the insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured. If permission is granted, and the insurer is allowed to contest the claim on merits, it is open to the insurer to file an appeal against an award on merits, if aggrieved. In case where application for permission is erroneously rejected, the insurer can challenge only that part of the order while filing appeal. So far as obtaining compensation by fraud, by the claimant is concerned, the Apex Court observed that it is no longer res integra that fraud vitiates the entire proceeding and in such cases, it is open to the insurer to apply to the Tribunal for rectification of the award. 12. The above observations of the Apex Court in Nicoletta’s case is a complete answer to the argument advanced by Mr. Barve, 14 FA: 1125/1997 29.4.2011 which according to him had not been considered earlier. Perusal of the judgment in Nicolletta's case shows that the very contention had been taken before the Apex Court, in fact in a more specific manner and dealt with by the Apex Court. 13. This brings me to the second question of grant of leave under Section 170 of the Act to the insurer at the stage of appeal. The answer to this question can also be found in the decision of the Apex Court in Nicolletta's case. At paragraph 31 of the judgment, the Apex Court observed that the application for permission under Section 170 has to be bonafide and at the stage when the insured is required to lead his evidence. It is obvious from the very provision of Section 170 that permission thereunder cannot be granted at the appellate stage, because the permission is to contest the claim application by the insurer on additional grounds i.e. on the grounds available to the insured alone. On obtaining such leave, the insurer is expected to lead evidence on the defences available for contesting the claim. Mr. Barve, however, relies upon decision of a Single Judge of Himachal Pradesh High Court to support his argument. The High Court of Himachal Pradesh in its 15 FA: 1125/1997 29.4.2011 decision in National Insurance Co. Ltd. vs. Angury Devi and others, reported in 2005, ACJ,167 held that application of Insurance company under Section 170 of the Act can be allowed in appeal and the insurance company is permitted to challenge the award on all grounds available to the insurer and the driver. Perusal of the judgment shows that attention of Himachal Pradesh High Court was drawn to the decision of the Apex Court in Nicolletta's case observing that Sections 149, 170 and 173 of the Act, 1988 are part of one scheme and if a different interpretation is given to Section 170 of the Act, such interpretation would run counter to the scheme and object of the Act. The Himachal Pradesh High Court however, held as follows : The pith and substance of the aforesaid observations, “ therefore, leads me to hold that even if in a given situation, the Tribunal has not passed an order permitting the insurer appellant to contest the claim petition on grounds in terms of section 170 of the Act and if insurer appellant in the appeal filed by it in the High Court under section 173 of the Act satisfies the High Court that conditions precedent embodied in section 170 of the Act are satisfied and further if the award is adverse to the interests of the insurer appellant, High Court has jurisdiction to itself pass an order in terms of section 170 and allow the appellant insurer to argue the appeal on grounds available to the owner-insured and thus assail the judgment/award passed by the Tribunal 16 FA: 1125/1997 29.4.2011 challenging the quantum of compensation or the finding of the Tribunal with respect to negligence or rashness of the driver of the offending vehicle.” These observations have to be read in the facts and circumstances of the case before that Court, which were entirely different. In that case, an application for leave under Section 170 of the Act had been made by the insurance company during the pendency of the proceedings before the Tribunal. However, the Tribunal had not passed any order on the application one way or the other. Therefore, it was not a case where no application had been made at all. The error was on the part of the Tribunal in not deciding the application. This error was sought to be corrected by the High Court by granting the leave. Besides, all the contesting parties to the appeal i.e. the claimants, and the insured had no objection to grant of permission to the insurance company, in terms of Section 170 of the Act in the appeal. The decision cited, therefore, is not an authority on the question about grant of leave under Section 170 of the Act at the stage of appeal. The reliance thereupon is clearly misplaced, in my opinion, which is fortified by the abovecited decisions of the Apex Court that leave under Section 17 FA: 1125/1997 29.4.2011 170 Motor Vehicles Act must be necessarily applied for and granted prior to the evidence in the proceedings, so as to give a fair opportunity to both sides to produce their respective evidence. 14. Mr. Barve, however, in his inimitable style seeks to persists in his argument by citing another decision of the Apex Court in the case of National Insurance Co. Ltd V/s. Meghji Naran Soratiya and Others reported in 2009 ACJ 1441. He submits that the provision of Section 170 of the Act is required to be looked into afresh in view of the difficulties suffered by the insurer which act tremendously to its prejudice. He submits that even the Apex Court has acknowledged the situation and expressed concern about it. The facts of the decision cited are materially different from the facts of the present case. The Insurance company which had approached the Apex Court in the case, had filed an application under Section 170 seeking leave for contesting the claim on merits. That application had been granted by the Tribunal without recording reasons. This order of the Tribunal had not been challenged by the claimant in any proceedings. On these facts, the Apex Court held that the appeal filed by the Insurance Company 18 FA: 1125/1997 29.4.2011 on merits could not be dismissed on the ground that the Tribunal had not assigned reasons for granting permission under Section 170 of the Act. The reasons therefor stated at paragraph-9 are as follows : 9. Even assuming that order granting permission “ required recording of reasons, if the order failed to record reasons on being challenged, the High Court could either set aside the permission granted, with a direction to the Tribunal to reconsider the applications and pass a reasoned order, or in special circumstances, itself consider whether the case warranted the grant of permission and decide the question. But under no circumstances, the Tribunal’s permission to contest the claim, can be equated to or treated as denial of permission to contest the claim, merely on the ground that reasons were not recorded. Nonetheless, Mr. Barve is right in his submission that the Apex Court by the decision has expressed its concern about the difficulties faced by the Insurers as regards the provisions of Section