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The Oriental Insurance Co. Ltd. v. Smt. Bini Bala Mondal &. Ors.
Structured Summary of the Opinion (A. Kabir, J.)
Factual and Procedural Background
Two appeals were preferred by the respective insurers against (i) the Judgment and Award dated 7th February, 1996 in Motor Accident Claim case No. 21 of 1992 and (ii) the Judgment and Award dated 11th December, 1996 in Motor Accident Claim case No. 13 of 1993, both passed by the Motor Accident Claims Tribunal, Purulia. A preliminary objection raised by the respondents led the Court to set both appeals down for hearing on the single point of maintainability, which was argued on identical grounds in both appeals. The insurers challenged the awards on merits before the High Court without having obtained leave from the Claims Tribunal under section 170 of the Motor Vehicles Act, 1988. The Court heard submissions from counsel for the respondents (Mr. Krishanu Banik) and for the appellant insurers (Mr. K.K. Das), considered relevant statutory provisions and precedent authority, and delivered its judgment dismissing the appeals for non-maintainability.
Legal Issues Presented
- Whether an insurer can challenge the merits of an award of a Claims Tribunal by way of appeal to the High Court without first obtaining leave from the Claims Tribunal under section 170 of the Motor Vehicles Act, 1988.
- Whether a reservation/subrogation clause in an insurance policy (by which the insurer may take over and conduct the defence or settlement in the name of the insured) permits the insurer to appeal on merits without obtaining leave under section 170.
- Whether the phrase "any person aggrieved" in section 173 of the Motor Vehicles Act, 1988 permits an insurer to appeal on all legal and factual grounds irrespective of the limits imposed by sections 149(2) and 170.
- Whether a joint appeal by the owner/insured and the insurer can circumvent the statutory bar created by section 149(2) and section 170 so as to allow the insurer to challenge an award on merits without leave.
Arguments of the Parties
Respondents' Arguments (as advanced by Mr. Krishanu Banik)
- The appeals are not maintainable because the insurers did not obtain leave from the Claims Tribunal under section 170 of the Motor Vehicles Act, 1988.
- Absent such leave, an insurer may only contest claims on the limited grounds enumerated in section 149(2) of the Act (i.e., specific statutory defences regarding breach of policy conditions) and cannot raise wider merits-based defences on appeal.
- Precedent of the Hon'ble Supreme Court (notably Shankarayya and Narendra Kumar) establishes that, notwithstanding impleading of an insurer as a party, the procedure under section 170 must be followed before an insurer may advance broader merits-based defences.
- Joint appeals by owner and insurer are maintainable only if a permitted defence is available to the insurer; the insurer cannot escape statutory bar by joining the insured as co-appellant (relying on Chinnama George and Smt. Rita Devi).
Appellant Insurers' Arguments (as advanced by Mr. K.K. Das)
- The policy contained a reservation/subrogation clause (quoted in the opinion) that expressly permitted the insurer to take over and conduct the defence or settlement in the name of the insured; under that clause the insurer could, without leave, raise all defenses available to the insured.
- The authority of Captain Itbar Singh (1958) and subsequent High Court decisions (e.g., United India Insurance Co. Ltd. v. Gita Rani Mondal; New India Assurance Co. Ltd. v. Leela; New India Assurance Co. Ltd. v. Coline) support the proposition that a reservation clause allows the insurer to defend in the name of the assured and to urge all defences available to the assured.
- A Division Bench decision of this Court in National Insurance Co. Ltd. v. Anup Mukherjee resulted in an SLP being admitted by the Supreme Court; that pending Supreme Court consideration was urged as a reason to permit the present appeal to proceed.
- Section 173 gives a statutory right of appeal to "any person aggrieved" and an insurer who discharges liability would fall within that class (relying on New India Assurance Co. Ltd. v. Jagdish Prasad Pandey (Allahabad High Court)).
- Statutory provisions should be read harmoniously and words given their natural meaning; authorities on interpretation (Institute of Chartered Accountants of India v. Price Waterhouse; Davis v. Sebastian; Sultana Begum v. Premchand Jain) were invoked to support a harmonious construction that avoids making any part of the statute otiose.
- Practical realities (owners seldom appear; insurers contest claims on all grounds) and provisions like section 168 (opportunity to be heard) were relied on to contend that appeals by insurers without leave should be regarded as maintainable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shankarayya v. United India Insurance Co. Ltd., AIR 1998 SC 2968 | Insurer cannot advance a wider defence on merits unless the procedure under section 170 (or its predecessor provision) is followed; leave is required before insurer can contest on merits. | The Court followed and reaffirmed Shankarayya as authoritative: the decision "holds the field" and supports dismissal of the appeals for non-obtaining of leave under section 170. |
| Narendra Kumar v. Yarenissa, 1998 (9) SCC 202 | Expressed the same view as Shankarayya; decision under section 110C(2A) of the 1939 Act (pari materia with s.170 of 1988 Act). | The Court treated Narendra Kumar as reiterating the Supreme Court's approach and relied on it in concluding insurers cannot appeal on merits without leave. |
| United India Insurance Co. Ltd. v. Smt. Namita Das, AIR 2000 Calcutta 145 (DB) | High Court Bench decision aligning with the view that insurers need leave to contest on merits. | Cited as supporting authority consistent with Shankarayya; the Court noted it as part of uniform view in several bench decisions. |
| The Oriental Insurance Company Ltd. v. Gurdial Singh, (2000) 2 CAL LT 288 (HC) : 2000 (2) CLJ 624 | Bench decision expressing the same view as Shankarayya regarding limits on insurer's defences absent leave. | Relied on as further High Court authority aligning with Supreme Court precedent; used to support dismissal of appeals. |
| Chinnama George v. N.K. Raju, AIR 2000 SC 1565 | While considering sections 173 and 149(2), held that joint appeal by owner and insurer was maintainable only if a permitted defence was available to insurer; insurer cannot avoid statutory bar by joining owner. | The Court relied on Chinnama George to support the proposition that joint appeals cannot be used to circumvent the requirement of leave under section 170. |
| Smt. Rita Devi v. New India Assurance Company Ltd., 2000 (3) Supreme 698 | Same proposition as Chinnama George: joint appeal maintainable only where permitted defences exist for insurer; section 173 considered in light of section 149(2). | Relied on as confirming that without leave under section 170 an insurer cannot appeal on merits; Court cited it directly for this legal stance. |
| British India General Insurance Company Limited v. Captain Itbar Singh, 1958-65 Accident Claims Journal, p. 1 | Authority that insurer could defend in the name of the assured if the right to do so was reserved in the policy; insurer could then urge all defences available to the assured. | The Court distinguished and declined to follow its reasoning for present purposes, explaining Itbar Singh pre-dated insertion of sub-section (2A) in s.110C (1939 Act) and thus was superseded in legal effect by later statutory changes. |
| New India Assurance Company Ltd. v. Leela, 1999 Accident Claims Journal 542 (Kerala HC, DB) | Kerala DB decision expressing view similar to Itbar Singh that reservation clause allows insurer to defend in name of assured. | Noted by the Court but treated as distinguishable or not decisive in the wake of statutory amendment (s.110C(2A)/s.170), and therefore not controlling. |
| New India Assurance Company Ltd. v. Coline, 1993 Accident Claims Journal 371 (Kerala HC, Full Bench) | Full Bench followed Itbar Singh: insurer could reserve right to defend in policy and urge all defences available to assured. | Referred to by appellant; Court observed that such authority relied on the pre-amendment statutory context and therefore did not displace later Supreme Court authority under the amended statute. |
| National Insurance Company Ltd. v. Anup Mukherjee (F.M.A.T No. 3472 of 1999) | Division Bench of this Court dismissed appeal on ground that insurer's appeal was not maintainable without leave under section 170; insurer filed SLP which was admitted and stayed by Supreme Court. | The Court observed the SLP is pending before the Supreme Court but held that the pendency cannot be used to depart from existing Supreme Court authority (Shankarayya) for the present appeals. |
| New India Assurance Company Ltd. v. Jagdish Prasad Pandey, 1998 (1) Transport and Accidents Cases 600 (All) | Allahabad High Court held insurer came within "any person aggrieved" under s.173 and could challenge award on all legal and factual grounds. | The Court noted this decision but rejected the broad proposition, holding that s.173 must be read in the context of sections 170 and 149(2) and does not permit an insurer to bypass the leave requirement. |
| Institute of Chartered Accountants of India v. Price Waterhouse, 1997 (6) SCC 312 | Principle of statutory interpretation: words in a statute should be given their natural ordinary meaning and nothing should be added nor treated as otiose. | Cited by the insurer's counsel to support a literal reading; the Court acknowledged the principle but construed the relevant motor vehicle provisions contextually, resolving apparent inconsistencies in favour of the statutory scheme requiring leave. |
| Davis v. Sebastian, 1999 (6) SCC 604 | General principle of statutory interpretation cited in support of natural meaning and avoidance of otiose words. | Cited by counsel for harmonization; Court considered interpretative principles but concluded the statutory scheme (s.170/s.149(2)) controls the question of insurer's rights on appeal. |
| Sultana Begum v. Premchand Jain, 1997 (1) SCC 373 | When interpreting inconsistent provisions, courts should harmonise them so as to give effect to the legislature's purpose; read statute as a whole. | Invoked by appellant to urge harmonious construction; the Court expressly applied the harmonisation approach but concluded that harmonisation leads to reading s.173 in the context of s.170 and s.149(2), thereby limiting insurer's appellate rights without leave. |
Court's Reasoning and Analysis
The Court's reasoning proceeded in a sequence of statutory and precedential analysis:
- Identification of the statutory framework: the Court placed central weight on section 170 of the Motor Vehicles Act, 1988 (and the predecessor provision, section 110C(2A) of the 1939 Act). Section 110C(2A) authorises a Claims Tribunal, where certain conditions are satisfied, to implead the insurer and permit the insurer to contest the claim "on all or any of the grounds that are available to the person against whom the claim has been made" — a discretionary provision for the Tribunal to permit wider defences.
- Distinction of pre-amendment authorities: the Court observed that Captain Itbar Singh and decisions following it were decided in a statutory regime that pre-dated insertion of sub-section (2A) in section 110C (i.e., before the legislature explicitly vested discretion in the Tribunal by statutory provision). Those authorities relied on the doctrine of subrogation and reservation clauses in policies to permit insurers to defend in the name of the assured.
- Effect of statutory amendment: with the insertion of sub-section (2A) in section 110C (and the corresponding provisions in the 1988 Act, especially section 170), the Court found that the legislative scheme changed. The concept of subrogation as a route to permit insurers to raise all defences without tribunal leave was "jettisoned" in favour of a statutory discretion reposed in the Tribunal to allow insurers to contest on the grounds indicated. Therefore, reliance on pre-amendment authorities is not persuasive where a later legislative scheme prescribes a different route (leave under the Tribunal's discretion).
- Precedent hierarchy and control: the Court treated the Supreme Court's decision in Shankarayya (and follow-up decisions like Narendra Kumar, Chinnama George, Smt. Rita Devi) as controlling authority that requires insurers to obtain leave under the statutory provision before contesting on merits. The Court concluded that Shankarayya "holds the field."
- Construction of section 173: the Court rejected the insurer's contention that the phrase "any person aggrieved" in section 173 alone entitles insurers to attack awards on all grounds. Instead, the Court held that section 173 must be read in the statutory context — particularly in light of sections 170 and 149(2) — and therefore the expression "any person aggrieved" includes insurers only to the extent permitted by those provisions. A contrary reading would produce inconsistencies and incongruities with the statutory scheme.
- Effect of pending proceedings in higher court: although a Division Bench decision of this Court in National Insurance Co. Ltd. v. Anup Mukherjee had resulted in an SLP being admitted by the Supreme Court, the Court held that the pendency of that matter before the Supreme Court could not be used as a basis to depart from existing Supreme Court precedent (Shankarayya) for the purposes of the present appeals.
- Final application to the facts: applying the statutory scheme and controlling precedent, the Court concluded that because leave under section 170 was not obtained by the insurers from the Claims Tribunal, the appeals were not maintainable and had to be dismissed.
Holding and Implications
HOLDING: APPEALS DISMISSED — the two appeals by the insurers were dismissed for non-maintainability because no leave under section 170 of the Motor Vehicles Act, 1988 was obtained from the Claims Tribunal.
Direct Consequences and Practical Effects
- The appeals were dismissed without any order as to costs.
- The respondents (claimants) are entitled to withdraw amounts already deposited in the High Court pursuant to earlier orders.
- The prayer for stay of the High Court's judgment was refused.
- The respondents/claimants are entitled to execute the balance amounts of the awards before the Claims Tribunal.
- If an urgent xerox certified copy of the order is applied for, it is to be supplied promptly to the applicant.
Broader Legal Implication (as stated by the Court)
The Court expressly held that the decision in Shankarayya v. United India Insurance Co. Ltd. remains authoritative on the question whether an insurer may raise wider merits-based defences on appeal without leave; the insertion of statutory provisions analogous to section 110C(2A) of the 1939 Act (and section 170 of the 1988 Act) displaced the earlier reliance on subrogation/reservation clauses as a unilateral mechanism for insurers to assert all defences. The statutory scheme requires the Tribunal's leave before an insurer may contest claims on grounds beyond those listed in section 149(2).
Judge G.C. De concurred. The appeals were dismissed and the orders described above were made by the Court.
A. Kabir, J.—These two appeals have been preferred by the respective Insurers against the Judgment and Award dated 7th February, 1996 in Motor Accident Claim case No. 21 of 1992 and the Judgment and Award dated 11th December, 1996 in Motor Accident Claim case No. 13 of 1993, passed by the learned Judgment, Motor Accident Claims Tribunal, Purulia.
2. Pursuant to a preliminary objection taken on behalf of the respondents, the two appeals were set down for hearing on the point of maintainability on identical grounds.
3. Appearing on behalf of the respondents in both the appeals, Mr. Krishanu Banik, learned advocate, submitted that the appeals were not maintainable since no leave had been obtained by the Insurers in both the appeals from the Claims Tribunal under section 170 of the Motor Vehicles Act, 1988, to contest the claims made by the Claimants on merits on grounds other than those indicated in section 149(2) of the said Act. Mr. Banik urged that failure to obtain such leave operated as a bar to the filing of an appeal by the Insurer challenging the Judgment/Award of the Claims Tribunals on merits.
4. Mr. Banik submitted that without obtaining leave from the Claims Tribunal under section 170 of the Motor Vehicles Act, 1988, hereinafter referred to as the “1988 Act”, an Insurer could contest the claim only on the limited grounds set out in sub-section (2) of section 149 of the said Act regarding breach of the conditions of the policy referred to therein.
5. In support of his submissions Mr Banik firstly referred to the decision of the Hon'ble Supreme Court in the case of Shankarayya v. United India Insurance Co. Ltd. reported in AIR 1998 SC Page 2968, wherein it was held, Inter alia, that notwithstanding the fact that the Insurance Company had been impleaded as party in the Claim Petition, unless the procedure indicated in section 170 of the 1988 Act was followed, the Insurance Company could not have a wider defence on merits than what was available to it by way of statutory defence.
6. Mr. Banik submitted that the same view was expressed by the Hon'ble Supreme Court in the case of Narendra Kumar v. Yarenissa, reported in 1998 (9) SCC Page 202, which was a decision under section 110C(2A) of the Motor Vehicles Act, 1939, the provisions whereof are at pari materia with the provisions of section 170 of the 1988 Act.
7. Reference was also made to two Bench decisions of this Court in (1) United India Insurance Co. Ltd. v. Smt. Namita Das, reported in AIR 2000 Calcutta, Page 145, and in (2) The Oriental Insurance Company Ltd.… v. Gurdial Singh…., reported in (2000) 2 CAL LT 288 (HC) : 2000 (2) CLJ 624, where the same view was expressed.
8. Mr. Banik submitted that even joint appeals filed by the owner of the offending vehicle and the insurer were not maintainable on the merits of the award made by the Tribunal unless leave was obtained under section 170 of the 1988 Act. Mr. Banik referred to the decisions of the Hon'ble Supreme Court in the case of (1) Chinnama George v. N.K Raju, (AIR 2000 SC, Page 1565) and (2) Smt. Rita Devi v. New India Assurance Company Ltd. (2000 (3) Supreme, Page 698) wherein, while considering the provisions of sections 173 and 149(2) of the 1988 Act, the Hon'ble Supreme Court held that a Joint appeal by the owner of the vehicle and the insurer was maintainable only if any of the permitted defences was available to the insurer. The insurer could not avoid the statutory bar merely by Joining the insured owner or the driver as co-appellant in such appeal.
9. In other words, the provision for appeal under section 173 was subject to the statutory bar imposed under section 149(2) and section 170 of the 1988 Act.
10. Mr. Banik also referred to various other unreported decisions of this Court on the aforesaid lines to which reference will be made, if necessary.
11. Appearing for the appellant insurer, Mr. K.K Das submitted that certain special facts were involved in this case which differentiated it from the various decisions referred to by Mr. Banik. Mr. Das submitted that the concept of subrogation had been introduced In the policy issued to the owner of the vehicle, as would be reflected from Clause 2 of the conditions set out in the policy which reads as follows:—
“2. No admission offer promise or indemnity shall be made or given by or on behalf of the insured without the written consent of the Company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the Company may require.”
12. Mr. Das urged that in view of the aforesaid clause, the question as to whether the insurer could contest the claim of the claimant on merits without obtaining leave under section 170 of the 1988 Act, fell for consideration before a Division Bench of this Court in United India Insurance Co. Ltd. v. Gita Rani Mondal, (F.M.A No. 390 of 1994). While taking note of the decision of the Hon'ble Supreme Court in the case of Shankarayya and the Division Bench of this Court in the case of Gurdlal Singh, the Division Bench also took note of the decision of the Hon'ble Supreme Court in the case of British India General Insurance Company Limited v. Captain Itbar Singh, reported in 1958-65 Accident Claims Journal, Page 1, wherein while considering the provisions of section 96 of the 1939 Act, the Hon'ble Supreme Court held that the insurer had the right to defend the action in the name of the assured, provided such right was reserved in the policy. It was also observed that in such a case if the insurer chose to defend the action in the name of the assured, all the defences available to the assured could then be urged by the insurer.
13. Apart from the decision in Itbar Singh's case, the Division Bench also took note of a Division Bench of the Kerala High Court in the case of New India Assurance Company Ltd. v. Leela, reported in 1999 Accident Claims Journal, Page 542, where a similar view was expressed.
14. Relying on the principle of subrogation, the Division Bench sought to distinguish the decision of the Hon'ble Supreme Court in Shankarayya's case by observing that in Shankarayya's case the Supreme Court had no occasion to consider the principle of subrogation and that, as a result, the ruling in Itbar Singh's case would be applicable in cases where a reservation clause had been included. Accordingly, even while considering the amended provision of section 110C(2A) of the 1939 Act, the Division Bench was of the view that the appeal at the instance of the insurer, where the award of the Tribunal had been challenged on merit, was maintainable on account of the reservation clause.
15. Mr. Das also referred to the Full Bench decision of the Kerala High Court in the case of New India Assurance Company Ltd. v. Coline, reported in 1993 Accident Claims Journal, page 371 wherein following the decision In Itbar Singh's case, it was observed that the decision of the Supreme Court in Captain Itbar Singh's case is a clear authority that it is open to the insured to reserve a right in the policy of insurance to defend the action in the name of the assured and in case there was such a reservation, all defences upon to the assured could be urged by the insurer.
16. Mr. Das then submitted that from a decision of a Division Bench of this Court in F.M.A.T No. 3472 of 1999 (National Insurance Company Ltd. v. Anup Mukherjee), which had been dismissed on the ground that the appeal was not maintainable at the instance of the insurer without leave having been obtained under section 170 of the 1988 Act, the insurer had preferred a Special Leave Petition, being SLP (Civil) No. 279 of 2000, which had been admitted and stay had been granted. Mr. Das urged that since the Supreme Court was now in seisin of the matter, the present appeal on the self-same point must be held to be maintainable.
17. Mr. Das also referred to the provisions of section 173 of the 1988 Act which, Inter alia, provides that subject to the provisions of sub-section (2) any person aggrieved of an award by a Claims Tribunal may, within 90 days from the date of the award, prefer an appeal to the High Court. Mr. Das urged that a statutory right had been given to “any person aggrieved” of an award of the Claims Tribunal, which would include the insurer which had cause to be aggrieved by the award made by the Tribunal. Mr. Das submitted that the said question had come up for consideration before a Division Bench of the Allahabad High Court in the case of New India Assurance Company Ltd. v. Jagdish Prasad Pandey, reported in 1998 (1) Transport and Accidents Cases, Page 600 (All), and it was held that the insurer came within the category of “any person aggrieved” since it had to discharge the liability created against the insured and would, therefore, be entitled to challenge the award on all legal and factual grounds.
18. Mr. Das urged that since two views were possible with regard to the provision of sections 170 and 173 of the 1988 Act, an attempt should be made for the said provisions to be read harmoniously so as not to render surplus any part of the provisions. Referring to the decision of the Hon'ble Supreme Court in the case of (1) The Institute of Chartered Accountants of India v. Price Waterhouse, reported in 1997 (6) SCC, page 312 and (2) Davis v. Sebastian, reported in 1999 (6) SCC, Page 604, Mr. Das urged that it was now well-settled that words in a statute should be given their natural ordinary meaning and nothing should be added to them nor should any word be treated as otiose.
19. Reference was also made to the decision of the Hon'ble Supreme Court in the case of Sultana Begum v. Premchand Jain, reported in 1997 (1) SCC, page 373, wherein it was observed that while interpreting two inconsistent or obviously repugnant provisions of an Act, the Courts should construe them so as to harmonise them so that the purpose of the Act may be given effect to. It was observed further that the statute had to be read as a whole to find out the real intention of the legislature.
20. Mr. Das submitted that in Motor Accident Claim cases in the State the owners of the offending vehicle seldom appear and the insurers contest the claim on all grounds, notwithstanding the grounds as envisaged under section 149(2) of the Motor Vehicles Act, 1988. Mr. Das submitted that having regard to the above and in view of the provision of section 168 of the Motor Vehicles Act, 1988, where specific provision has been made for giving an opportunity being heard, the appeal filled by the insurer without leave having been obtained under section 170 of the 1988 Act, must be held to be maintainable.
21. We have carefully considered the submissions made on behalf of the respective parties and more particularly those of Mr. Das who attempted to distinguish the views expressed by the Hon'ble Supreme Court in Shankarayya's case and in other subsequent cases following the decision in Shankarayya's case.
22. The main pillar of Mr. Das's case is the decision of the Hon'ble Supreme Court in Captain Itbar Singh's case, which was followed by a Division Bench of this Court in Smt. Geeta Rani Mondals case. With respect, we are unable to accept the reasoning in Smt. Geeta Rani Mondals case in distinguishing the views expressed by the Hon'ble Supreme Court in Shankarayya's case. Captain Itbar Singh's case was decided on 11th May, 1958, when the provisions of section 110C of the 1939 Act had not been amended by the insertion of sub-section (2A). Sub-section (2A) of section 110C, which was inserted by Act 56 of 1969 with effect from 2nd March, 1970, reads as follows:—
“(2A) Where, in the course of any inquiry, the Claims Tribunal is satisfied that—
(i) there is collusion between the person making the claim and the person against whom the claim is made, or
(ii) the person against whom the claim is made has failed to contest the claim,
It may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.”
23. The said provision is in pari materia with the provisions of section 170 of the 1988 Act which fell for consideration in Shankarayya's case and was not in the statute book when Captain Itbar Singh's case was decided by the Hon'ble Supreme Court. In our view, the point of distinction between Captain Itbar Singh's case and Shankarayya's case lies there and the reservation clause in the policy will now have to be considered in the light of the provisions of section 110C(2A) of the 1939 Act or section 170 of the 1988 Act. When section 110C(2A) was not available for consideration, the reservation clause for the purpose of subrogation was no doubt relevant for a decision as to the right of the issurer to defend a claim on behalf of the insured. Once section 110C(2A) was introduced in the 1939 Act, the entire perspective changed since it was not left to the tribunal to decide as to whether it would grant leave to the insurer to defend a claim on all or any of the grounds available to the person against whom a claim is made.
24. With the introduction of sub-section (2A) in section 110C in the 1939 Act, the concept of subrogation was Jettisoned and a discretionary power was vested with the Tribunal on the grounds indicated to allow the insurer to contest the claim on merits, that is, on grounds other than those indicated in section 96(2) of the 1939 Act.
25. The same proposition holds good as far as the provisions of sections 149(2) and 170 of the 1988 Act are concerned.
26. In our view, having regard to the provisions of section 170 of the 1988 Act, the principle of subrogation has lost relevance and the decision in Shankarayya's case holds the field. What may be decided in the Special Leave Petition, pending before the Hon'ble Supreme Court, remains to be seen and cannot form the basis of a view not in conformity with the views expressed in Shankarayya's case.
27. We are also unable to accept Mr. Das's submission with regard to section 173 of the 1988 Act. In our view, there is no inconsistency between the provisions of section 170 and section 173 of the 1988 Act. The provisions of section 173 will have to be read in the context of section 170 and section 149(2) of the said Act. The expression “any person aggrieved” will include the insurer to the extent indicated in section 149(2) and section 170 of the said Act. Any other interpretation will give rise to inconsistencies and incongruities.
28. The decision of the Hon'ble Supreme Court in Shankarayya's case and in Narendra Kumar's case, has been reiterated in Chtnnama George's case and in the case of Smt Rita Devi. In fact, in Smt Rita Devi's case, the provisions of section 173 of the 1988 Act were considered in the light of the provisions of section 149(2) of the said Act and it was held that a joint appeal by the insurer and the owner of the vehicle would be maintainable only if any of the permitted defences were available to the insurer and the insurer could not avoid the statutory bar merely by Joining the insured owner or the driver as co-appellant in such appeal. In other words, without obtaining leave from the Tribunal under section 170 of the 1988 Act, an appeal on the merits of the award of the Claims Tribunal would not be maintainable at the instance of the insurer.
29. Having regard to the above, we are of the view that these two appeals are not maintainable at the instance of the insurer, since no leave under section 170 was obtained by the insurer from the Claims Tribunal.
30. The appeals are accordingly dismissed, but without any order as to costs.
31. The respondents in the two appeals will be entitled to withdraw the amount already deposited in this Court pursuant to orders passed by this Court.
Prayer for stay of this judgment is considered and refused, having regard to the views expressed by us.
As far as the balance amounts of the Awards are concerned, the respondents/claimants will be entitled to execute the awards before the Tribunal.
If an urgent xerox certified copy of this order is applied for, the same is to be supplied to the applicant at an early date.
G.C De, J.—I agree.
Appeals dismissed
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