CMA/542/1996 of P CHANDRAMOULI Vs K GOMATHI AMMAL on 13 December 2002

:JUDGEMENT

(Judgment of the Court was made by P. SATHASIVAM,J.,) Theowner and insurer of the lorry bearing registration No. TAN 4334 are theappellants in the above appeal.

2. In respect of the death of one Dr. S.K. Chockalingam in a motor vehicle accident that had taken place on 25.01.1992, the respondentherein, who is the mother of the deceased filed a claim petition, praying forcompensation of Rs.9,04,000/-. Before the Tribunal, the claimant examinedherself as P.W.1 and three more witnesses as P.Ws.2 to 4 and also markedExs.A.1 to A.29 in support of her claim for compensation. On the side of therespondents therein, neither anyone was examined nor any document marked insupport of their defence. The Tribunal, on appreciation of the oral anddocumentary evidence and after holding that the accident was caused due to thenegligence of the driver of the lorry in question, passed an award forRs.3,10,000.00 with interest at the rate of 12% per annum from the date ofpetition till the date of deposit. Questioning the said award, the insuredand the insurer of the lorry have preferred the present appeal questioning thequantum of compensation determined by the Tribunal.3. Heard the learned Counsel for the appellants as well asthe respondent.

4. Mrs. Pushpa Sathyanarayanan, learned counsel for the respondent - claimant raised an objection regarding maintainability of theabove appeal, since the appellants question only the quantum of compensationdetermined by the Tribunal. According to her, inasmuch as the first appellant- owner of the lorry was set ex parte before the Tribunal and did not contestthe claim petition, in the absence of specific permission by the Tribunalunder Section 170 (b) of the Motor Vehicles Act, 1988 to contest the claim onall aspects by joining with the owner, the second appellant, i.e., InsuranceCompany is not entitled to question the finding regarding negligence andquantum of compensation. On the other hand, learned counsel appearing for theappellants would contend that since the present appeal is by the insured andthe insurer, the appeal is maintainable and the appellants are entitled toquestion the finding of the Tribunal on all aspects.

5. In the light of the objection raised, we shall consider the maintainability of the appeal at the foremost. Before the Tribunal, withreference to various contentions made, the first appellant herein - firstrespondent therein, who is the owner of the lorry did not file a counterstatement and he was set ex parte. It is the second appellant - secondrespondent therein, which is the Insurance Company filed a counter statement,contesting the claim petition. It is to be noted that the Insurance Companyhas not obtained permission under Section 170 (b) of the Motor Vehicles Act,1988 to contest the appeal on all aspects. The present appeal has been filedby the owner and the Insurance Company. In this back ground, let us considerthe various decisions relied on by both counsel.

6. Learned counsel for the respondent - claimant heavily

relied on the recent decision of three Judge Bench of the Supreme Court in thecase of National Insurance Co., Ltd., vs. Nicolletta Rohtagi reported in 2002(4) C.T.C. 243. The question that was considered by the Supreme Court is," Where an insured has not preferred an appeal under Section 173 of the MotorVehicles Act, 1988 against an award given by the Motor Accidents ClaimsTribunal, is it open to the insurer to prefer an appeal against the award bythe Tribunal questioning the quantum of compensation, as well as finding as regards the negligence of the offending vehicle? "

Their Lordships have referred to Sections 147 and 170 of Act, 1988. They alsoreferred to the corresponding provisions from M.V. Act, 193 9. Afterreferring to the relevant provisions from 1939 Act and 1988 Act, the Hon'bleSupreme Court has held thus:- "Thus, in common law, an insurer was not permitted to contest a claim of aclaimant on merits i.e. offending vehicle was not negligent or there wascontributory negligence. The insurer could contest the claim only onstatutory defences specified for in the statute. "

Before arriving at a conclusion with reference to the question posed beforeit, Their Lordships have referred to the following cases:

1. Narender Kumar and another vs. Yarenissa and others (1998 (9) S.C.C.

202) ;

2. Chinnama George and other vs. N.K. Raju and another (2000 (4) S.C.C.130) ;

3. Rita Devi and others vs. New India Assurance Co., Ltd., and another (2000(5) S.C.C. 113) ; and(5) S.C.C. 113) ; and

4. United India Insurance Co., Ltd., vs. Bhushan Sachddeva and others (2002(1) C.T.C. 380 = 2002 (2) S.C.C. 265).(1) C.T.C. 380 = 2002 (2) S.C.C. 265).

7. In Narender Kumar's (1998 (9) S.C.C. 202)case, the question that arose was whether there can be a joint appeal by an insurer andowner of the offending vehicle. It was held that even in the case of a jointappeal by the insurer and the owner of an offending vehicle, if an award hasbeen made against the tortfeasors as well as the insurer, even though anappeal filed by the insurer is not competent, it may not be dismissed as such.It is further held that the tortfeasor can proceed with the appeal after thecause title is amended by deleting the name of the insurer.

8. In the case Chinnama George (2000 (4) S.C.C. 130), it was held that if none of the conditions as contained in sub-section (2) of Section149 exists for the insurer to avoid the liability, the insurer is legallybound to satisfy the award and the insurer cannot be a person aggrieved by theaward. In such a case, the insurer will be barred from filing an appealagainst the award of the Tribunal. It was also held that the insurer cannotmaintain a joint appeal along with the owner or driver if defence of anyground under Section 149 (2) is not available to it.

9. In the case of Rita Devi (2000 (5) S.C.C. 113), it was held that the insurer not having obtained permission under Section 170 of 1988Act, is not entitled to prefer any appeal to the High Court against the awardgiven by the Tribunal on merits.

10. In the case of United India Insurance Company Limited

Conclusion

(2002 (1) C.T.C. 380 = 2002 (2) S.C.C. 265), it was held that where theinsured fails to file an appeal to the High Court against the quantum ofcompensation awarded by the Tribunal, the insurer is entitled to file anappeal as the insured has failed to contest the claim and in that view of thematter, the insurer could be a person aggrieved.

11. After analysing the relevant provisions from 1939 Act and 1988 Act as well as the above referred decisions of the Supreme Court,ultimately their Lordships in Nicolletta Rohtagi and others have held that thedecisions in United India Insurance Company (2002 (1) C.T.C. 3 80) regardingmaintainability of the appeal at the instance of an insurer does not lay downthe correct view and overruled the same.

12. Mrs. Pushpa Sathyanarayanan, learned counsel for the respondent - claimant, very much relied on the following conclusion in para 26of the Supreme Court judgment, namely in the case of National Insurance Co.,ltd., Chandigarh vs. Nicolletta Rohtagi and others reported in 2002 (4)G.T.C. 243. The following conclusion is pressed into service."Thus, unless an order is passed by the Tribunal permitting the insured toavail the grounds available to an insured or any other person against whom aclaim has been made on being satisfied of the two conditions specified inSection 170 of the Act, it is not permissible to the insurer to contest theclaim on the grounds which are available to the insured or to a person againstwhom a claim has been made. Thus where conditions precedent embodied inSection 170 is satisfied and award is adverse to the interest of the insurer,the insurer has a right to file an appeal challenging the quantum ofcompensation on negligence or contributory negligence of the offending vehicleeven if the insured has not filed by appeal against the quantum ofcompensation. ... "

In this regard, it is also relevant to refer the ultimate conclusion of theirLordships.

"31. We have already held that unless the conditions precedent specified inSection 170 of 1998 Act is satisfied an insurance company has no right ofappeal to challenge the award on merits. However, in a situation where thereis a collusion between the claimants and the insured or the insured does notcontest the claim and, further, the tribunal does not implead the insurancecompany to contest the claim in such cases it is open to an insurer to seekpermission of the tribunal to contest the claim on the ground available to theinsured or to person against whom a claim has been made. If permission isgranted and the insurer is allowed to contest the claim on merits in that caseit is open to the insurer to file an appeal against an award on merits, ifaggrieved. In any case where an application for permission is erroneouslyrejected the insurer can challenge only that part of order while filing appealon grounds specified in sub-sections (2) of Section 149 of 1988 Act. But suchapplication for permission has to be bona fide and filed at the stage when theinsured is required to lead his evidence. So far as obtaining compensation byfraud by the claimant is concerned, it is no longer res integra that fraudvitiates the entire proceedings and in such cases it is open to an insurer toapply to the tribunal for rectification of award. "

13. It is clear from the above decisions that unless the conditions specified in Section 170 of the 1988 Act are satisfied, theInsurance Company has no right of appeal to challenge the award on merits.However, where there is a collusion between the claimants and the insured andthe insured does not contest the claim, it is open to the Insurance Company to

seek permission of the Tribunal to contest the claim on the ground availableto the insured and if permission is granted, it is open to the insurer to filean appeal against the award on merits. In our case, we have already referredto the fact that the insured did not contest the claim and the insurer thoughfiled a detailed counter statement, did not obtain permission from theTribunal to contest the claim on all aspects. In such a circumstance, it isopen to the Insurance Company to seek permission of the Tribunal to contestthe claim on the ground available to the insured and if permission is grantedit is open to the insurer to file an appeal against the award on merits. Insuch a circumstance, as contended by the learned counsel for the respondentthe appeal of the Insurance Company questioning negligence and quantum ofcompensation is liable to be dismissed as not maintainable. However, it is tobe noted that even in 2002 (4) C.T.C. 243 (cited supra), though theirLordships have referred to the dictum laid down in the cases of Narender Kumar(1998 (9) S.C. C. 202), Chinnama George (2000 (4) S.C.C. 130), Rita Devi(2000 (5) S.C.C. 113) and United India Insurance Company (2002 (1) C.T.C.380), ultimately they overruled the view expressed only in United IndiaInsurance Company (2002 (1) CTC 380). In other words, as rightly contended byMrs. N.B. Surekha, learned counsel for the appellants, their Lordships havenot disapproved the view expressed in Narender Kumar's case. We have alsocarefully perused the entire judgment. As rightly contended, except sayingthat the decision in the case of United India Insurance Company (2002 (1)C.T.C. 380) has not laid down correct view of law, the view expressed inNarender Kumar has not been disturbed. Here, we have already referred to thefact that the present appeal is by the insured and the insurer of the lorry,which involved in the accident. It is also brought to our notice the DivisionBench decision of this Court in the case of P. Anwer Batcha vs. Tamilarasireported in 2002 ACJ 931 (P. SATHASIVAM and P. THANGAVEL,JJ.,), whereinsimilar question was considered by the Division Bench. It is seen that afterreferring to all the earlier decisions of the Supreme Court, various HighCourts as well as this Court, the Bench has concluded that the InsuranceCompany cannot maintain joint appeal along with the owner or driver since noneof the defences in Section 149 (2) is available, the appeal of the InsuranceCompany is not maintainable and liable to be dismissed. After holding that,the Bench further held that "the appeal of the Insurance Company shall standdismissed as not maintainable, whereas the owner of the vehicle appellant No.1herein is permitted to pursue the appeal and cause-title to that extent shallbe amended by the Registry". It is also brought to our notice anotherdecision of the Division Bench in CMA.No.79 of 2000 dated 31.08 2001 (P.SATHASIVAM and A. SUBBULAKSHMY,JJ.,) wherein similar objection regardingmaintainability was raised. Here again, the Bench considered the variousprovisions and other decisions. After following the decision rendered inC.M.A.No.205 of 1989 dated 01.12.2000 (P. SHANMUGAM AND A.SUBBULAKSHMY,JJ.,) the Court arrived at a conclusion that the appeal filedalong with the owner is maintainable and in the light of the decision of theSupreme Court, more particularly, in the case of National Insurance Companyvs. Nicolletta Rohtagi reported in 2002 (4) CTC 243. In such a circumstance,inasmuch as the appellant owner of the lorry is entitled to pursue the appeal,we hold that the present appeal is maintainable and reject the objectionregarding maintainability raised by the counsel for the respondent - claimant.

14. Learned counsel for the appellants would contend that the amount awarded by the Tribunal is excessive and the same is liable to bereduced. It is seen from the evidence of P.W.1 - claimant that the deceasedwas her only son. As per the post mortem certificate Ex.P.4, the deceased wasaged about 50 years at the time of accident. He was a bachelor and Doctor byprofession. At the time of the accident he was working as a Doctor inMeenakshi Mission Hospital, Madurai. He completed his M.B.B.S., course in1963 as evidenced from Ex.P.7. It is further seen from the evidence of P.W.1that thereafter, he went to London and worked as a Doctor for 12 years andreturned to Madurai in 1990. It is also seen that the deceased has served inMilitary between 1963 and 1965. Ex.P.11 shows that he was also successful inM.D. Course. Exs.P.16 and 17 show that he was employed as a Doctor inPhaudinor, U.S.A., Thereafter, he went to London for higher studies. She alsoproduced documents to show that he paid substantial amount towards income-taxwhen he was in U.S.A., and U.K., P.W.3, an administrative Officer in theMadurai Meenakshi Mission Hospital explained the salary and payment made tothe deceased. Considering all the above aspects, including higherqualification in medicine, promotional aspects etc., the Tribunal hasconcluded that the deceased would have earned Rs.10,000/- per month, but forthe accident. From and out of the said amount, the Tribunal has concludedthat the deceased would have atleast contributed Rs.4,000/- per month to hismother. Taking note of the fact that on the date of the accident the claimantwas 7 2 years old and the deceased was 51 years old, by applying themultiplier of 6 the Tribunal arrived at Rs.2,88,000/- as pecuniary loss to theclaimant. After adding Rs.10,000/- towards loss of estate, anotherRs.10,000/- towards loss of love and affection and Rs.2,000/- towards funeralexpenses, the Tribunal passed an award for Rs.3,10,000/- with interest at therate of 12% per annum. Considering the fact that the deceased was a qualifiedDoctor, having worked in U.S.A., and U.K., and his last income as explained byP.W.3 and of the fact that the deceased was 51 years old at the time of theaccident and the claimant is 72 years old, we are of the view that the awardamount cannot be said to be either excessive or unreasonable. On the otherhand, we are in agreement with the amount arrived at by the Tribunal.Accordingly, we confirm the same.

15. Though relying on the recent judgments of the SupremeCourt, learned counsel for the appellants contended that the rate of interest,namely 12% per annum is on the higher side, considering the fact that theaccident had occurred on 25.01.1992 and also of the fact that the saidobjection was not taken in the memorandum of appeal grounds, we are notinclined to disturb the rate of interest as awarded by the Tribunal.Accordingly, we reject the said contention also.

In the light of what is stated above, we do not find any meritin the appeal; consequently, the same is dismissed. No costs.

Index:YesInternet:Yeskh

To

1. The 4th Additional Subordinate Judge

(MACT), Madurai (with records).

2. The S.O., V.R. Section, High Court,Madras.