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New India Assurance Co. v/s Kasturi Bai Tiwari

    M.A. No. 408 of 1998

    Decided On, 24 February 2010

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE SANHAY YADAV

    For the Appellant: Virendra Verma, Advocate. For the Respondent: None.



Judgment Text

Mr. Virendra Verma:

1. Learned counsel for the appellant. None for respondents.

2. Appellant, the New India Assurance Company calls in question the legality of the award dated 23-12-1997 passed by Second Additional Motor Accident Claims Tribunal, Damoh in Claim Case No. 182/1997 whereby in a Claim Petition preferred by respondent Nos. 1 and 2, the legal representatives of the deceased Devendra Kumar who died due to accident caused by truck CPQ 4115 driven rashly and negligently by respondent No. 3, the Claims Tribunal awarded the compensation of Rs. 1,44,400/-.

3. Assail is on two counts, firstly, it is alleged that the death of Devendra Kumar was not due to accident but he was murdered and respondent No. 3 was prosecuted for said offence and was convicted therefor. Secondly, the owner of offending vehicle was initially impleaded as party, however, after his death no legal representatives were brought on record. It is urged that since the insured was not a party no order could have been passed against the insurer.

4. In respect of the first contention, the Claims Tribunal while dealing with the fact that the deceased who was a Sub-Inspector in the Police department was on duty on 9-3-1992 when informed that the driver of offending vehicle in order to avoid the seizure of his truck was on the run after breaking forest barrier, and the deceased in discharge of his official duty tried to prevent the vehicle when he was run over by the offending truck. The Claims Tribunal observed in paragraphs 14 and 15 that.

(Vernacular matter omitted........Ed.)

5. Thus it was the rash and negligent use of motor vehicle which caused death of the Devendra Kumar and the Claims Tribunal is justified in holding the same. First contention of the appellant, therefore, fails.

6. The second contention that since the owner of the vehicle was not substituted by legal representatives and, therefore, award could not have been passed in his absence against the insurer loses the substance in the teeth of pvovisions as contained under Section 155 of the Motor Vehicles Act, 1988, which stipulates :

"155. Effect of death on certain causes of action."Notwithstanding anything contained in Section 306 of the Indian Succession Act, 1925 of the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer."

7. Close view at the aforesaid provision reveals that the cause of action survives even when the insured dies, against his estate or against the insurer. In the case at hand the insurance of offending vehicle being not disputed and the insurance company having failed to prove any breach of the policy cannot escape the liability to indemnify the insured. In view of this the second contention also fails.

8. Even otherwise the appeal is not maintainable as apparently, and not disputed by the appellant, no leave is sought under Section 170 of the Act of 1988.

Section 170 stipulates :

"170. 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 persons 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 proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub- section (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."

9. In National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi & others : (2002) 7 SCC 456 : ( AIR 2002 Supreme Court 3350) it was observed by their Lordships:

"25. We have earlier noticed that 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. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason 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."

26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the tribunal permitting the insurer to avail the grounds available to an insured 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. Thus where conditions precedent embodied in Section

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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 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 we give any different interpretation to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act." 10. In view of above analyses, there being no substance in the appeal, therefore, the same fails and is hereby dismissed. However, no costs. Appeal dismissed.
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