JUDGEMENT :-

S.Manikumar, J.

1 Aggrieved by the award dated 24.8.1998 made in M.C.O.P. No. 1045 of 1998 on the file of the Motor Accidents Claims Tribunal (Principal Sub- Court), Coimbatore, the insurance company has preferred this appeal.

2 Facts leading to the civil miscellaneous appeals are as follows:

On 26.6.1997 about 8 p.m., while the respondent No. 1-claimant was returning from Salem in a vehicle bearing registration No. TN 41-Y 3848, owned by the respondent No. 2 herein, near India Cements at Sankari, one unknown lorry came in a rash and negligent manner in the opposite direction and in order to avoid head-on collision with that lorry, the respondent No. 1 swerved the vehicle to the extreme left, the vehicle went out of control and dashed against the tree. In the accident, the respondent No. 1 sustained grievous injuries. He was taken to Sankari Government Hospital, Salem, where he was given first aid and later, he took treatment as inpatient in Kovai Medical Care Centre at Coimbatore from 28.6.1997 for several days. Hence, he claimed compensation of Rs. 10,00,000 together with interest at the rate of 12 pee cent per annum.

3 The appellant insurance company has filed a counter affidavit, denying the manner of accident and put the claimant to strict proof. The appellant insurance company has disputed its liability to pay compensation.

4 On evaluation of pleadings and evidence, the Tribunal found that the acciden did not occur due to the negligence of the claimant and awarded compensation of Rs. 5,48,700 with interest at the rate of 12 per cent per annum from the date of claim till the date of realization.

5 Assailing the judgment of Tribunal, learned counsel for the appellant submitted that the Tribunal has failed to consider that the accident had occurred on account of negligence of the claimant himself, who was driving the jeep bearing registration No. TN 41-Y 3848, involved in the accident and, therefore, he cannot claim any compensation under the provisions of the Motor Vehicles Act, 1988 . He further submitted that in the F.I.R. given to the police, immediately after the accident, by a passenger of the vehicle, it was specifically mentioned that the claimant alone drove the vehicle rashly and negligently and that the vehicle went out of his control and dashed against a tree, resulting in injuries. He further submitted that the respondent No. 1 -claimant is therefore, not entitled to claim any compensation even against the owner of the jeep, under the provisions of the Motor Vehicles Act.

6 Referring to the evidence of PW 1 and PW 3 and also the defence raised in the counter statement, learned counsel for the appellant submitted that inasmuch as the claimant No. 1-respondent is not a third party, the appellant insurance company is not liable to compensate the claimant under the Motor Vehicles Act and as per the policy conditions of the insurance company. In support of this contention the learned counsel for the petitioner relied on the following decisions:

(i) National Insurance Co. Ltd. v. Challa Bharathamma, 2004 ACJ 2094 (SC);

(ii) Tamil Nadu State Trans. Corpn. v. Natarajan, 2003 ACJ 1002 (SC);

(iii) B. Prabhakar v. Bachima, 1984 ACJ 582 (Karnataka);

(iv) New India Assurance Co. Ltd. v. Meenal, 1993 ACJ 552 (Madras);

(v) National Insurance Co. Ltd. v. R. Mohan, 1996 ACJ 1151 (Madras);

(vi) Kaliathal v. New India Assurance Co. Ltd., 2004 ACJ 51 (Madras);

(vii) Krishnamurthy v. G. Raji, 2007 ACJ 2299 (Madras).

7 Per contra, learned counsel for the respondent No. 1 submitted that insured remained absent before the Tribunal and that appellant insurance company has not obtained any leave from the Tribunal under section 170 of the Motor Vehicles Act, 1988 and, therefore, in the appeal except the defence available under section 149 (2) of the Motor Vehicles Act, the insurer cannot assail the findings of the Tribunal as regards negligence and quantum of compensation. He further submitted that as the respondent No. 1-claimant has adduced both oral and documentary evidence to prove that he has sustained grievous injuries resulting in disability, which has been assessed by the doctor, the quantum of compensation awarded is just and reasonable and, therefore, prayed for dismissal of the civil miscellaneous appeal.

8 Heard the counsel appearing for the parties and perused the materials available on record.

9 Accident had occurred on 26.6.1997 and one of the co-passengers had lodged a complaint with the police, stating that the driver of the vehicle/claimant, drove the vehicle rashly and negligently, causing the accident. It is the contention of the learned counsel for the appellant that F.I.R. is the primary piece of evidence to prove the manner of the accident. No doubt, as per the F.I.R. the respondent No. 1-claimant was said to have been responsible for the accident, but the police on investigation found that it was only a mistake of fact and accordingly the learned Judicial Magistrate had directed the police to drop further action on the F.I.R. When the criminal court, on the report of the police, found that the registration of the F.I.R. itself was a mistake of fact, it is the duty of the Tribunal, to examine the aspect of negligence on the basis of evidence adduced by both parties. Though the insurance company did not obtain the statutory permission under section 170 of the Motor Vehicles Act to raise the plea of negligence, yet the insurance company took up a defence with regard to negligence in the counter statement.

10 It is well settled that F.I.R. is not an encyclopaedia and merely based on F.I.R., negligence cannot be fastened. F.I.R. in accident cases is often lodged in a haste manner and the same cannot be substituted for evidence to be let in by the parties before the Tribunal. It is the duty of the Tribunal to assess the evidence both oral and documentary to render a finding on negligence. It is the case of the claimant that in order to avert an accident, he was constrained to turn the vehicle on the left side of the road, which resulted in the accident and it was not due to any negligence. The said statement is corroborated by PW 2.

11 In Shankarayya v. United India Insurance Co. Ltd., 1998 ACJ 513 (SC), the Supreme Court held that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in section 170 are found to be satisfied and for that purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, 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 themselves had joined insurance company, respondent No. 1, 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, the insurance company, respondent No. 1 was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal.

12 In Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC), the award against the insurance company was challenged on the ground that it was not covered under section 163-A. The Hon'ble Supreme Court, taking into consideration the insurance company had not obtained leave of the Tribunal under section 170 of the Motor Vehicles Act, 1988 , held that the appeal filed by the insurance company was not maintainable.

13 In yet another decision in National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC), the Supreme Court had considered an important question as to whether, in the absence of an appeal to the High Court by the insured against the Motor Accidents Claims Tribunal award, the insurance company could maintain an appeal against such award, challenging the quantum of compensation as well as the finding of negligence. The Supreme Court, at paras 18, 25, 26 and 27, held as follows:

"However, section 110-C (2A) was inserted in the 1939 Act in the year 1970 which corresponds to section 170 of the 1988 Act. These provisions show two aspects. Firstly, that the insurer has only statutory defences available as provided in section 149 (2) of the 1988 Act and, secondly, where the Tribunal is of the view that there is a collusion between the claimant and the insured, or the insured does not contest the claim, the insurer can be made a party and on such impleadment the insurer shall have all defences available to it. Section 173 provides for an appeal against the award given by the Tribunal. The consistent view of the Supreme Court has been that the insurer has no right to file an appeal to challenge the quantum of compensation or finding of the Tribunal as regards the negligence or contributory negligence of offending vehicle, (para 18)

A motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. Therefore, the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in section 149 (2) of the Act or where the condition precedent specified in section 170 is satisfied, (para 25) Therefore, unless an order is passed by the Tribunal permitting the insurer to avail of the grounds available to an in- sured 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. But where conditions precedent embodied in section 170 are satisfied and 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 one gives any different interpretation to section 170 of 1988 act, the same would go contrary to the scheme and object of the Act. (para 26)

Moreover, the right of appeal is not an inherent right or common law right, but it is a statutory right. If the law provides that an appeal can be filed on limited grounds, the grounds of challenge cannot be enlarged on the premise that the insured or the persons against whom a claim has been made has not filed any appeal. section 149 (2) of the 1988 Act limits the insurer's appeal on those enumerated grounds and the appeal being a product of the statute, it is not open to an insurer to take any other plea, (para 27)"

14 At para 32, the Apex Court held that even if no appeal is preferred under section 173 of the Motor Vehicles Act, 1988 , by an insured against the award of the Motor Accidents Claims Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle.

15 In United India Insurance Co. Ltd. v. Jyotsnaben Sudhirbhai Patel, 2003 ACJ 2107 (SC), the Supreme Court held that in view of the case-law and the provisions of sections 149 (2) and 170 of the Motor Vehicles Act, it is plain and clear that the insurance company can contest the claim preferred before the Tribunal only on statutory grounds prescribed under section 149 (2) of the Act, but, if there is a collusion between the person making the claim and the person resisting the claim or if the person against whom the claim is made has failed to contest the claim, the insurance company can step in and seek permission of the Claims Tribunal and make a prayer for getting itself impleaded as a party to the proceeding and the insurer so impleaded can then contest the proceeding on the grounds other than those enumerated in section 149 (2) of the Act.

16 Admittedly, the appellant insurance company has not obtained the statutory leave under section 170 of the Motor Vehicles Act, 1988 , in which event, the insurer is statutorily prevented from contesting the proceedings on the ground other than those enumerated under section 149 (2) of the Act. The defences available to the insurer in section 149 (2) are as follows:

"(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon, pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely: (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely: (i) a condition excluding the use of the vehicle (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side-car being attached where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or

(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular."

17 The case-law relied on by the learned counsel for the petitioner would be relevant for deciding the liability to pay compensation, had the insurance company obtained the leave of the court under section 170 of the Act. The insurance company is statutorily prohibited from taking up the defence, otherwise provided under section 149 (2) of the Motor Vehicles Act. Pleadings and evidence disclose that the petitioner is not the owner of the vehicle and the respondent No. 2 in this appeal is the owner of the vehicle. Therefore, the respondent No. 1-claimant is a third party insofar as the policy is concerned and he can seek for a just and reasonable compensation against the insured as well as the insurer.

18 In view of the judgments of the Apex Court, laying down the law that without leave from the court, it is not open to the appellant to raise the plea of negligence and quantum of compensation before this court.

19 In the result, the civil miscellaneous appeal is allowed. No costs.