Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 19.11.1996 made in M.C.O.P No. 67 of 1994 on the file of the Motor Accident Claims Tribunal (Principal Subordinate Judge), Erode.
JUDGMENT:
1. Aggrieved by the judgment and decree of the Motor Accident Claims
Tribunal (Principal Subordinate Judge), Erode in M.C.O.P No. 67 of 1994, the owner and the Insurer of the lorry involved in the accident, have jointly preferred this Civil Miscellaneous Appeal.
2. In respect of death of one Duraisamy in a vehicular accident that took place on 08.07.1993, his parents filed a Claim Petition before the Tribunal under Section 166 of the Motor Vehicles Act, 1988. It was their case that on that fateful day, when their son, working as a loadman, was travelling in the lorry belonging to the second respondent, the lorry, driven at high speed in a careless and negligent manner, got capsized, as a result of which he fell down and died and hence, they are entitled to receive a Compensation of Rs. 4,00,000/-. In support of their case, two witnesses were examined and two exhibits were marked.
3. In reply, the Insurer of the lorry filed counter before the Tribunal contending that there was a vehicle going in the same direction before the lorry in question and when that vehicle applied sudden brake, the driver of the lorry, with a view to avoid collision with that vehicle, applied sudden brake but in vain and thus, the accident was not caused due to rash and negligent driving of the lorry driver. On the side of the Insurer, neither oral nor documentary evidence was let in.
4. The Tribunal, on consideration of the oral and documentary evidence available before it, holding that the lorry driver was responsible for the accident, passed an award for a sum of Rs. 1,90,000/- with Interest at the rate of 15% per annum from the date of Claim Petition till the date of deposit. Challenging the same, the Insurer and the owner of the lorry in question have jointly preferred the present Appeal.
5. Heard both sides.
6. The only point for consideration in this Appeal is whether the Appeal itself is maintainable in the absence of any permission to be obtained by the Insurer from the Tribunal as per Section 170 of the Motor Vehicles Act, 1988.
7. In this connection, it would be useful to refer to Section 170 of the M.V Act which reads as under:
Impleading Insurer in certain cases.—
Where in the course of any inquiry, the Claims Tribunal is satisfied that —
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim.
it may, for reasons to be recorded in writing, direct that the Insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceedings and the Insurer so impleaded shall thereupon have, without prejudice to the provisions contained in subsection (2) of Section 149, 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.
8. A plain reading of the above provision would make it clear that an Insurer of a vehicle, in order to make itself eligible to contest the award of the Tribunal has to get permission to that effect from the Tribunal.
9. In this connection, it would also be relevant to refer to a decision of the Supreme Court in Rita Devi & Others v. New India Assurance Company Limited & another, AIR 2000 SC 1930, wherein, the relevant paragraph for our consideration reads as under: (para 19)
“. . . It is argued on behalf of the appellants that the Appeal preferred by the Insurance Company purported to be under Section 173 of the Motor Vehicles Act was not maintainable because prior permission of the Court as required was not obtained by the appellants. In support of this contention of the appellants, reliance is placed on a judgment of this Court in the case of Shankarayya v. United India Insurance Co. Ltd., AIR 1998 SC 2968. In the said judgment, a Division Bench of this Court held (para 4):
“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, the 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 respondent 1-Insurance Company in the Claim Petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the con-tract 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 in Section 170. Consequently, it must be held that on the facts of the present case, respondent 1-Insurance Company was not entitled to file an Appeal on merits of the claim which was awarded by the Tribunal”.
10. Further, a Division Bench of this Court, in its decision reported in P. Anwer Batcha & another v. Tamilarasi & 5 others, 2001 (3) CTC 665, has taken the same stand and the relevant para reads as under: (para 25)
“. . . Admittedly, in the present case, the Insurance Company did not secure any order in terms of Section 170. In the light of the fact that the Tribunal has not granted permission to contest the claim on all aspects under Section 170, the defences under Section 149(2) are not available and raised in the memorandum of grounds of Appeal, we hold that, even in the Joint Appeal with owner or driver, the Insurance Company cannot maintain the same; accordingly, the same is liable to be dismissed. Thus, the Appeal of the Insurance Company shall stand dismissed as not maintainable. ...”
11. Admittedly, in the case on hand, the Insurance Company has not obtained permission of the Tribunal as required under Section 170 of the M.V Act to contest the claim. Further, the learned counsel for the appellants also has fairly conceded that the above-referred decisions are squarely applicable to the case on hand.
For all the reasons stated above, the Joint Appeal preferred by the owner and Insurer of the lorry in question is absolutely devoid of merits and is liable to be dismissed. Accordingly, it is dismissed. No costs.