A.K. Patnaik, J.
1. This is a revision against the order dated 4.6.1997 of 1st Member, Motor Accidents Claims Tribunal, West Tripura, Agartala in T.S. (MAC) 258 of 1995 by which the learned 1st Member of the Tribunal did not permit the petitioner insurance company to put some questions relating to the income of the deceased by way of cross-examination of the witness-respondent No. 1.
2. The facts briefly are that respondent No. 1 Gouri Sen Gupta filed an application under Section 166 of the Motor Vehicles Act, 1988, against the petitioner insurance company as well as the respondent No. 2 who is the owner of the vehicle No. TRL 3742 and the respondent No. 3 who is the driver of the said vehicle for compensation for death of her husband in a motor accident and the said case was initially filed before the learned Member, Motor Accidents Claims Tribunal, South Tripura, Udaipur and thereafter transferred to the 1st Member, Motor Accidents Claims Tribunal, West Tripura, Agartala and numbered as T.S. (MAC) 258 of 1995. In the said case before the Tribunal, the respondent No. 1 examined herself as the claimant and when the counsel for the petitioner insurance company sought to put a question relating to income of the deceased at the time of cross-examination of the respondent No. 1 the counsel for the respondent No. 1 objected to the said question contending that cross-examination by the petitioner insurance company could only be confined to the defences available to it under Sub-section (2) of Section 149 of the Motor Vehicles Act, 1988, (for short, 'the 1988 Act'). Learned counsel for the petitioner insurance company, on the other hand, contended before the Tribunal that though Sub-section (2) of Section 149 of me 1988 Act restricted the defence of the insurance company to only those grounds specified therein, there was no restriction whatsoever in the said Sub-section (2) of Section 149 of the 1988 Act on the right of the petitioner insurance company to cross-examine a witness for the purpose of testing his veracity. The learned Member of the Tribunal, however, rejected the contention of the petitioner insurance company holding that the cross-examination by the insurer was also subject to restriction imposed under Section 149 of the 1988 Act.
3. Mr. Bhattacharjee, learned Counsel appearing for the petitioner insurance company contended in the hearing of this revision that a reading of Sub-section (2) of Section 149 of the 1988 Act would show that no restriction as such has been put on the right of the insurer to cross-examine a witness. According to Mr. Bhattacharjee, in the absence of such clear restriction, the insurer was fully entitled under Section 146 of the Evidence Act to put any question to a witness which would test his veracity by way of cross-examination and the impugned order in so far as it deprived the petitioner insurance company to put a question relating to income of the deceased by way of cross-examination is liable to be set aside.
4. Mr. S. Talapatra, learned Counsel appearing for the respondent No. 1, the claimant, on the other hand, submitted that Sub-section (2) of Section 149 of the 1988 Act specified the grounds on which the insurance company can contest a claim for compensation under Section 166 of the 1988 Act and that the insurance company can therefore only put such questions in course of cross-examination of a witness which will be relevant to the said grounds specified in Sub-section (2) of Section 149 of the 1988 Act. Hence, a question relating to the income of the deceased which has no bearing at all to the said grounds specified in Sub-section (2) of Section 149 of the 1988 Act cannot be put by way of cross-examination to a witness by the insurance company. For the proposition that the defence of an insurance company can only be confined to the grounds specified in Sub-section (2) of Section 149 of the 1988 Act, Mr. Talapatra cited the decisions of the Supreme Court in the case of British India Genl. Ins. Co. Ltd. v. Itbar Singh 1958-65 ACJ 1 (SC) and in the case of Narendra Kumar v. Yarenissa 1998 ACJ 244 (SC), as well as a Full Bench decision of this Court in the case of United India Insurance Co. Ltd. v. Member, Motor Accidents Claims Tribunal, Lakhimpur 1993 ACJ 828 (Gauhati). Mr. Bhattacharjee, learned Counsel for the petitioner insurance company, however, states that in the said decisions of the Supreme Court and this Court, no law as such has been laid down that the insurance company cannot cross-examine a witness for testing his veracity on the point relating to the income of the deceased.
5. It is true as has been submitted by Mr. Bhattacharjee, learned Counsel for the petitioner insurance company that in the aforesaid decisions of the Supreme Court in the cases of British India Genl. Ins. Co. Ltd. v. Capt. Itbar Singh 1958-65 ACJ 1 (SC) and Narendra Kumar v. Yarenissa 1988 ACJ 244 (SC) and in the Full Bench decision of this Court in the case of United India Insurance Co. Ltd. v. Member, Motor Accidents Claims Tribunal, Lakhimpur 1993 ACJ 828 (Gauhati) no proposition as such has been laid down that the insurer cannot cross-examine a witness as regards the veracity of his statement given in examination-in-chief relating to the income of the deceased. But it has been clearly held by the Supreme Court in the case of British India Gen. Ins. Co. Ltd. v. Itbar Singh (supra) that apart from the statute an insurer has no right to be made a party to the action by the injured person against the insured causing the injury and that such a right created by statute and its content necessarily depends on the provisions of the statute. In the said case, the Supreme Court interpreting the provisions of Sub-sections (2) and (6) of Section 96 of the Motor Vehicles Act, 1939, (for short, 'the 1939 Act'), held that the insurer was entitled to defend on any of the grounds enumerated in Sub-section (2) of Section 96 of the 1939 Act and no others. In the Full Bench decision of this Court in the case of United India Insurance Co. Ltd. v. Member, Motor Accidents Claims Tribunal, (supra), the Full Bench of this Court following the aforesaid decision of the Apex Court further held that restrictions relating to defences by an insurer in the trial forum imposed under Sub-section (2) of Section 96 of the 1939 Act must necessarily operate on the right of the insurer in the appellate forum also as otherwise it would enlarge the limited right of the insurer to raise defences in the trial forum in the appeal. In the said case, the Full Bench of this Court also held that the position of law was the same under the 1988 Act, Sub-sections (2) and (7) of Section 149 having been similarly worded as Sub-sections (2) and (6) of Section 96 of the 1939 Act.
6. Section 146 of the Evidence Act, on which reliance has been placed by Mr. Bhattacharjee, states that when a witness is cross-examined, he may be asked questions which tend to test his veracity, but Section 137 of the Evidence Act states that the examination of a witness by the adverse party shall be called his cross-examination. The said Section 137 of the Evidence Act thus makes it clear that the right of cross-examination is conferred on the adverse party. But as has been held by the Supreme Court in the case of British India Genl. Ins. Co. Ltd. v. Itbar Singh 1958-65 ACJ 1 (SC), the insurer is not entitled to be made a party to the action by the injured person against the insured causing the injury apart from the statute and hence the content of the right of the insurer as a party also depends on the provisions of the statute. Accordingly, the insurer can be an adverse party only for the purpose of defences provided in the statute and as such an adverse party the insurer can cross-examine a witness only on the points relevant to the said defences provided in the statute. In other words, since the insurer is entitled to be made a party and can defend an action before the Claims Tribunal only on the grounds specified in Sub-section (2) of Section 149 of the 1988 Act, cross-examination by the insurer as an adverse party can only be limited to the defences permitted by the said Sub-section (2) of Section 149 of the 1988 Act.
7. Sub-section (2) of Section 149 of the 1988 Act is extracted herein below:
(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 nondisclosure of a material fact or by a representation of fact which was false in some material particular.
Sub-section (2) of Section 149 of the 1988 Act extracted above would show that the insurer cannot defend the action brought by a claimant on the ground that the quantum of compensation claimed by him has no nexus with the income of the deceased or that the deceased did not earn the income as claimed by the claimant in the application for compensation. Therefore, any question relating to the income of the deceased or the injured will have no relevance to the grounds of defence available to the insurer under Sub-section (2) of Section 149 of the 1988 Act and the insurer cannot be permitted to put such questions to the witness for the claimant.
8. Besides, the right conferred on an adverse party under the Evidence Act to cross-examine a witness, it is also an important principle of law that the evidence of a witness on any point cannot be utilized against a party who has not been given an opportunity to cross-examine the witness. On this principle it would appear that the evidence of a witness relating to the income of the deceased or injured cannot therefore be taken into consideration for the purpose of determining the compensation that is payable by the insurer unless the insurer is allowed to cross-examine the witness in respect of his statement of income of the deceased or injured. This reasoning overlooks the fact that the compensation that is determined by the Tribunal is one that is payable by the person who has caused the injury to the deceased or the injured and that the liability of the insurer is only to indemnify the insured who has caused the injury as per the terms of the insurance policy and so far as the insured is concerned, he has the right as an adverse party to cross-examine the witness on the point of income of the deceased or injured. Under the contract of indemnity, the insured may have also an obligation to mitigate the amount of damages which the insurer may have to ultimately pay as an indemnifier and such an obligation may also include the obligation to take steps in the suit or claim case as a reasonably prudent and diligent person would take in his own case. As part of this obligation, the insured may be required to cross-examine the witness on the point relating to the income of the deceased or injured, but such rights and obligations between the insurer and the insured cannot possibly affect the claim for compensation in respect of the injured or deceased against the insured and cannot constitute the basis for the insurer to claim a right to cross-examine a witness relating to the income of the deceased or injured.
9. This is not to say that the veracity of a statement of a witness relating to income of the deceased or injured in a motor accident claim case cannot be tested at all. It must always be remembered that a Motor Accidents Claims Tribunal is under a duty in a motor accident claim case to determine the 'just' amount of compensation that would be payable under the law in respect of an injured or a deceased and when the Tribunal finds in course of examination of a witness that the evidence of the witness relating to the income of the injured or deceased is exaggerated or is not true, it is a duty of the Tribunal to put such questions and insist on such evidence which would be relevant for the purpose of determining the correct income of the deceased or the injured so that 'just' compensation can be determined in accordance with the law.
10. Subject to the aforesaid observations, the civil revision is dismissed and the interim order dated 27.8.97 suspending the proceedings of T.S. (MAC) No. 258 of 1995 pending before the 1st Member, Motor Accidents Claims Tribunal, West Tripura, Agartala, is hereby vacated. Considering the facts and circumstances of the case, I make no order as to costs.
Copy of this judgment and order be sent by the Registry of this Court to all the Motor Accidents Claims Tribunals under the jurisdiction of this Court.