Case: United India Insurance Company Limited Vs. Nirmala Babulal Khairajani

( 2 ) THE incident in question is said to have taken place on 17. 9. 1996 at about 8 p. m. at village Vaksali near Lonawala on Bombaypune road. The deceased had then arrived from Middle East where he was serving and was travelling in the Maruti van towards pune alongwith his brother and friends. The maruti van met with an accident with Truck no.and the deceased dilipkumar died on the3 ) LEARNED Member of the Tribunal has found only truck to be the vehicle guilty of rashness and negligence. As against claim of Rs. 33. 20 lakhs and odd, compensation of rs. 7,50,000/inclusive of "no fault liability" with interest at 12% p. a. from the date of filing of the application till payment is awarded. Taking into consideration ages of parents, the trial Court had applied multiplier of 11. He has taken that the deceased could have spared an amount of Rs. 6,000/per month for his parents by taking a note of the fact that during 3 preceding years, he had sent an amount of Rs. 3,50,000/to his parents from his salary of 2500 Dinars in the Middle4 ) THE appeals were on Board yesterday when Advocate Shri A. H. Kasliwal was not available. Presence of his junior Advocate mrs. Netrali Jain was secured through Court chobdar. As she informed that Advocate Shri kasliwal was out of town yesterday and would be available today, matters were fixed for final hearing today. When the matters were called out in the afternoon session, neither Advocate shri Kasliwal nor Advocate Mrs. Jain were available inspite of search through Court Chobdar. However, Advocate Miss. Mamta Warma appeared and prayed for adjournment when we had made it clear to her that we are not inclined to grant adjournment. Consequently, none appeared for the appellants in first appeal No. 60/2003 and the same is required to be and is being dismissed in default.( 5 ) SO far as first appeal No. 248/2000 is concerned, it is not in dispute that owner and driver of the goods truck, which was insured with appellant insurance company namely M/s United India Insurance Company Ltd. , had remainedIn other words, inspite of service, they had not contested the claims. On our enquiry, Advocate shri Upadhye, in all fairness, has conceded that no application under section 170 of motor Vehicles Act, 1988, was preferred by his insurance company before the trial Court seeking permission to contest the petition with all defences available also to the owner in view ofof owner and driver. Our attention is drawn by Advocate shri Darak, who represents the other vehicle, to judgment of the Supreme Court in the matter of (National Insurance Company Ltd. Vs Nicolletta Rohtagi), A.. R. 2002 S. C. W. 3899 and more particularly contents from paras 25, 31 and 32. For the convenient reference, although the learned Counsel have taken us through major portion of the reported judgment, we are reproducing only part from the first head note, which suggests against the maintainability of present appeal filed by insurance company: "even if no appeal is preferred under section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as finding as regards negligence or contributory negligence of the offending vehicle unless the conditions precedent specified in section 170 of 1988 Act is satisfied. "

Reasoning:
( 8 ) WE are afraid, the Division Bench view of Bombay High Court can not be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of section 170 of the Motor vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the claim and, thus, Clause (b) of section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application under section 170, for the reasons to be recorded in writing by the Tribunal.