Judgment:
S.K. Kar,J
1. As per the given cause-title this is an appeal filed by the Oriental Insurance Co. Ltd., Aizawl, under Section 173 of Motor Vehicles Act, 1988 (as amended up to date) against the judgment and order (instead of 'order' it should have been mentioned as 'award') dated 14.2.2002 passed in MACT Cage No. 115/99 by MACT, Aizawl.
2. Respondent/claimant Darremi, has stated that she was travelling in a bus, bearing registration No. MZ-02/0223, which met with an accident on 25.3.1999 and she sustained injuries resulting to her disablement to the extend of 70%. That the vehicle was insured with Oriental Insurance Company (the present appellant) etc.
3. The case was settled by the Tribunal awarding a compensation of Rs. 1,77,000 with 12% interest per annum from the date of judgment and award passed by MACT, Aizawl.
4. I have heard learned counsel Mr. S.N, Meitei appearing for the appellant as well as learned counsel Mr. George Raju appearing for the claimant/ respondent No. 1. Learned counsel for the respondent/ claimant, No. 1 has submitted relying upon the law given in National Insurance Company Ltd. Chandigarh v. Nicolletta Rohtagi and Ors. (2002) 7 SCC 456, that the insurer has no right to file an appeal challenging 'the quantum of compensation or the findings of the Tribunal on merit.
5. I have carefully gone through the judgment of the Hon'ble Apex Court (supra) that has been relied upon by the claimant/respondent No. 1.
6. From a plain reading of the grounds given in the memorandum of appeal, it will be seen that the appellant has challenged each and every findings of facts recorded by the learned tribunal, in addition to challenging quantum of compensation awarded. Therefore, it is a normal appeal but nowhere there is any mention whether the appellant took leave of the Tribunal to contest the case before the Tribunal on all or any grounds which otherwise was available to the insured on a contention that the insured (owner/respondent No. ) against whom the claim has been preferred has failed to contest the claim.
7. In (2002) 7 SCC 456 (Supra) Hon'ble Apex Court took up the following question for decision -
'Whether in the absence of an appeal to the High Court by the insured against the Accidents Claims Tribunal's award the insurer could maintain an appeal against such award to challenge the quantum of compensation as well as the Accidents Claims Tribunal's finding as regards the negligence of the offending vehicles.'
And after a thorough discussion of relevant facts, with particular reference to the provision of law as given by Sections 147, 149 and 170 of M.V. Act, '88 the Court has held that 'even if no appeal is preferred under Section 173 of the 1998 Act by a insurer against the award of the Tribunal, it is not permissible for any insurer to file an appeal questioning any quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle'. In this context Hon'ble Apex Court while discussing the matter expressed, amongst others, the following opinions -
'That when an insurer is impleded and has been given notice of the case, he is entitled to defend the action on grounds enumerated is the sub-section, namely, Sub-section (2) of Section 149 of the 1988 Act, and no other ground is available to him.'
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'That an insurer cannot avoid its liability on any other grounds except those mentioned in Sub-section (2) of Section 149 of the 1988 Act. That the statutory defences which are available to the insurer to contest a claim are confined to what are provided in Sub-section (2) of Section 149 of 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds.'
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'That in course of any inquiry of a claim if the Tribunal is satisfied that there is a collusion between the claimant and the insured or the insured fails to contest the claim. The Tribunal for reasons to be recorded in writing, may 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.'
It was also emphasised in this context that court had maintain a consistent view 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 the offending vehicle and that 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 on 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. That only, 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. That Sections 149, 170 and 173 are part of one scheme and if we given any different interpretation to Section 173 of the 1988 Act, the same would go contrary to the scheme and object of the Act.
8. It was also opined that the insurer would have distinct and separate remedy if there was any case of fraud in procuring an award by a person and stated as followings :
'So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award.'
9. In the instant case, as stated earlier, in the memorandum of appeal the appellant/insurer has tried to avail all the grounds which are generally available to the insured in a normal case of appeal over looking the present position of law vis-a-vis right of appeal to the insurer as per the provision of the Motor Vehicle Act, 1988 (as amended up-to-date).
10. Concluding, I find the appeal is not maintainable and is dismissed.