The Judgment of the Court was delivered by
Balagangadharan Nair, J.:— An insurance company which was the 3rd respondent in a petition for compensation before the Motor Accidents Claims Tribunal, Trivandrum has brought the appeal challenging the decision awarding compensation of Rs. 62,378.24 to the first respondent herein who was the petitioner before the Tribunal. The petitioner was involved in an accident at a place near Kottiyam on the National Highway-47 on 27.4.1975 at about 5 p.m while he was returning to Ernakulam from Trivandrum in his motor car K.L.R 7366. The accident was caused by the collision of another car K.L.Q 7729 owned by the 1st respondent and was driven by the 2nd respondent in the petition. As a result of the accident the petitioner sustained serious injuries and had to undergo treatment in hospitals at Quilon, Ernakulam and Kolancherry, besides taking Ayurvedic treatment for improving the condition of his leg which was grievously fractured in the accident. He is a lawyer at Ernakulam and had to suspend practice during the period he was undergoing these treatments. The petitioner alleged that the accident was caused by the rashness and negligence with which the 2nd respondent was driving K.L.Q 7729. The petition, was brought for compensation general and special against the owner and driver of K.L.Q 7729 and the appellant who was the insurance company. All the respondents entered appearance and contested the petition, though the main contesting party appears to have been the appellant before us. They denied that the accident was caused by the rashness or negligence of the 2nd respondent or that the petitioner had suffered damages to the extent claimed by him. They also contended that the petitioner was guilty of contributory negligence and had no right to claim damages.
2. The Tribunal over-ruled these defences. On the question of compensation it awarded general damages of Rs. 40,000/- and special damages of Rs. 22,378.24 of which Rs. 5355.08 constitutes the charges which the petitioner had to incur for repairing his K.L.R 7366.
3. The insurance company alone has come up in appeal challenging the decision of the Tribunal.
4. At the hearing of the appeal counsel for the petitioner relying upon the recent decision of this Court in United India Fire & General Insurance Company v. Kalyani . 1983 A.C.J 29 Ker. contended that it was not open to the appellant to canvass the merits of the award on account of the prohibitions in section 96(2) and (6) of the Motor Vehicles Act. He also pointed out that there is no case for the appellant that the defences taken by it are these which are specified in section 96(2) or that any right has been reserved for it in the insurance policy to defend the action in the name of the assured.
5. Indeed the appellant has not produced or caused the production of the insurance policy. In the above decision besides discussing the provisions of law we followed the Supreme Court case British India General Insurance Co. v. Capt. Itbar Singh . 1958-1965 A.C.J 1 S.C. We’ also noted several cases of various High Courts following the Supreme Court decision. In the light of United India Fire & General Insurance Co. v. Kalyani the respondents' objection is well-founded and the appellant cannot be allowed to agitate its contentions against the award as they do not fall within section 96(2).
6. Although the decision in United India Fire & General Insurance Co. v. Kalyani was concerned with an appeal from a civil suit the same bar must apply to appeals from awards of Motor Accidents Claims Tribunals as well. This point was not decided in United India Fire & General Insurance v. Kalyani, but we noted a few decisions in paragraph 9 of the judgment and left it open. Counsel for the respondent brought to our notice an earlier Bench decision of this Court Oriental Fire & General Insurance Co. v. Gopalakrishnan Pillai . 1978 A.C.J 473 Ker. which had applied the bar under section 96(2) to an appeal from the decision of a Tribunal. In addition to this decision he also placed before us some decisions of other High Courts taking the same view. As the point is covered by Oriental Fire & General Insurance Co. v. Gopalakrishnan Pillai. we do not think it necessary to quote the other decisions.
7. Although in this view the appeal has to fail counsel for the appellant sought to get at least a modification of the award by pointing out that the sum of Rs. 5,355-08 allowed by the Tribunal on account of repairing charges of the car, is in excess of the statutory limit of Rs. 2,000/- fixed by section 95(2)(d). On the merits the objection appears to be correct but we do not think that we would be justified in making a modification of the award in this appeal which is defectively constituted, and in which the appellant is precluded from raising the objection. We could perhaps interfere only by exercising our power of revision. Even so we are disinclined to exercise the revisional power, for the appellant which must have been fully alive to this point never urged it before the Tribunal either in its written objection or during the hearing. The result is that the appellant allowed the Court below to accept the petitioner's claim under this head and pass the award. In this situation we do not feel persuaded to interfere with the award by exercising our revisional jurisdiction. We therefore refuse the request of counsel for the appellant.
8. We confirm the award of the Tribunal and dismiss the appeal with costs to the first respondent.
9. The accident which led to the petition occurred on 27.4.1975, more than 7 years ago. The award itself was passed on 19.7.1980 and apart from presenting a barren appeal the insurance company had not paid the compensation to the petitioner. We, therefore, direct the appellant to pay the compensation to the first respondent-petitioner or deposit it before the Tribunal for such payment within one month from to-day.
10. Appeal dismissed.