Judgment:
Kailash Gambhir, J.
1. By way of the present appeal, the appellant seeks to challenge the impugned award dated 21/9/2004 assailing the findings of the Tribunal on the quantum of compensation. The brief summary of facts to deal with the contentions of the parties, are as under:
Master V. Mani aged 16 years studying in class XII in DTEA School, Laxmi Bai Nagar, New Delhi suffered fatal injuries on 22.9.1999 at about 1:30 pm at the crossing of Ring Road and Andrews Ganj. On the said date he was traveling in bus bearing registration No. DEP-2010 and was going to his residence from his school. He was standing near the gate with other passengers. When the bus reached near the crossing of Ring Road and Andrews Ganj, another bus bearing registration No. DEP-8748 was already standing at the red light signal at the crossing. Sh. Dalveer Singh while driving the offending bus rashly and negligently hit the already stationary bus on its right side while trying to overtake and go ahead. As a result thereof, the deceased, Master V. Mani sustained fatal injuries. He was removed to AIIMS Hospital, where he was declared as 'brought dead'.
2. The Tribunal after taking into consideration the facts of the case as well as evidence led by the parties had passed an award in the sum of Rs. 6,00,000/- along with interest at the rate of 8% per annum payable from the date of the institution of the petition till the realization of the award. The said order passed by the Tribunal is now under challenge in the present appeal.
3. I have heard learned Counsel for the parties at considerable length and have perused the award.
4. The main plank of argument raised by the learned Counsel for the appellant is that the Tribunal has no power to award compensation over and above the amount as claimed in the claim petition. In support of her arguments, counsel for the appellant has placed reliance on the Full Bench Judgment of Gujarat High Court report in Dr. Urmila J. Sangani v. Pragjibhai Mohanlal Luvana and Ors. : AIR2000Guj211 .
5. The contention of learned Counsel for the appellant is that there is a judicial error committed by the Tribunal, and thereforee, the present appeal filed by the appellant even in the absence of permission being taken under Section 170 of the Motor Vehicles Act, is maintainable.
6. The appellant failed to take over the defense of the owner and driver as envisaged under Section 170 of the Motor Vehicles Act and, thereforee, is debarred from challenging the impugned award so as to assail the findings of the Tribunal on the quantum of compensation.
7. Mr. Hem C. Vashisht, counsel appearing for the respondents has taken a preliminary objection to the very maintainability of the present appeal on the ground that the appellant cannot assail the findings of the Tribunal on the quantum of compensation as determined by the Tribunal. Counsel contends that the appellant had not made an application to take over the defense of the owner and driver as envisaged under Section 170 of the Motor Vehicles Act and, thereforee, is debarred from challenging the impugned award so as to assail the findings of the Tribunal on the quantum of compensation.
8. Ms. Shantha Devi Raman, counsel for the appellant strongly disputes this position and contends that the insurer cannot be rendered remedlyless especially in a case where the Tribunal has awarded an excessive amount of compensation in favor of the claimants ignoring all basic principles of law for the award of compensation. Counsel for the appellant has also placed reliance on the judgment of the Supreme Court reported in : AIR2007SC2649 , New India Assurance Co. Ltd. v. Smt. Shanti Pathak and Ors. to contend that the Apex Court had interfered to lower down the compensation amount even in a case where the insurer had not taken any permission from the Court under Section 170 of the Motor Vehicles Act.
9. The counsel for the appellant also drew my attention to the order dated 03/12/2007 of the Hon'ble Apex Court in United India Insurance Co. Ltd. v. Shila Datta and Ors. in SLP (Civil) Nos. 17301-17302/2007 to contend that the Hon'ble Supreme Court has already referred the said issue of lack of competence of the insurer to assail the findings of the Tribunal on the ground of quantum of compensation and negligence to a larger Bench and, thereforee, this Court may await the decision of the Supreme Court in this regard.
10. Motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured/owner and the driver of the vehicle, the insurer comes in to the picture as a result of the statutory liability created under the Motor Vehicles Act. The legislature intended and 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 enshrined in Section 170 is satisfied.
11. Right of appeal is a creature of statute. The Parliament, while enacting Sub-section (2) of Section 149 only specified some of the defenses which are based on conditions of the policy and, thereforee, any other breach of conditions of the policy by the insured which does not fall under Sub-section (2) of Section 149 cannot be taken as a defense by the insurer. Had it been the intention of the Parliament to include the breach of other conditions of the policy as a defense, it could have easily provided for 'any breach of conditions of insurance policy' in Sub-section (2) of Section 149. But it is not the case, since the legislator has enumerated specifically the grounds of defenses available to the insurer. If the insurer is permitted to take any other defense other than those specified in Sub-section (2) of Section 149, it would mean we are adding more defenses to insurer in the statute which is neither found in the Act nor was intended to be included.
12. After having given my thoughtful and conscious consideration to the issue involved in the present case, I am of the view that the issue is no more rest integra as in catena of judgments including National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 ; National Insurance Co. Ltd. v. Mastan and Anr. : (2006)ILLJ704SC ; etc., the Hon'ble Supreme Court has authoritatively held that in the absence of permission sought from the Court as envisaged under Section 170 of the Motor Vehicles Act, 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 vehicles is concerned. No such permission was sought by the appellant under Section 170 of the Motor Vehicles Act by the Tribunal and, thereforee, in the absence of the same, the appellant being the insurer of the offending vehicle cannot maintain the present appeal on grounds other than those available to it under Section 149(2) of the Motor Vehicles Act.
13. It would be appropriate to refer Section 170 of the Motor Vehicles Act as under:
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 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 imp leaded as a party to the proceeding and the insurer so imp leaded 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.
14. Admittedly, no such permission under Section 170 of the Motor Vehicles Act was sought by the appellant, which clearly means that the procedure laid down under Section 170 of the Motor Vehicles Act was not followed. In the judgment of the Supreme Court reported in : AIR1998SC2968 , Shankarayya v. United India Insurance Co. Ltd., the Supreme Court has held that the insurance company when imp leaded 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 such an order should be a reasoned order of the Tribunal. In such circumstances unless the said procedure is followed, the appellant insurer cannot have a wider defense on merits than what is available to it by way of a statutory defense. Ralevant part of Para 4 of the said judgment in this regard is referred as under:
4. It clearly shows that the Insurance Company when imp leaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the Insurance Company has to obtain 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 defense on merits than what is available to it by way of statutory defense.
15. In view of the said legal position, I cannot appreciate the argument of counsel for the appellant that even without seeking permission of the Court as required under Section 170, the Appellant can proceed with the appeal. Once the application under Section 170 of the Motor Vehicles Act was preferred by the appellant before the Tribunal for taking over the defense of an owner or driver, the Tribunal is required to pass specific order and that too a reasoned order as per the observations of the Supreme Court referred above and, thereforee, in the instant matter the argument of counsel for the appellant cannot be appreciated that non-filing of an application under Section 170 of the Motor Vehicles Act by the appellant in this regard is no bar in preferring present appeal.
16. Even if we go into the merits of the matter, the contention of the counsel for the appellant that the Tribunal has no power to award compensation over and above the amount as claimed in the claim petition is without any force. The Supreme Court in the case of Nagappa v. Gurdayal Singh and Ors. : AIR2003SC674 Observed 'under the provisions of MV Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record the trial court/tribunal considers that claimant is entitled to get more compensation than claimed, the tribunal may pass such award. Only embargo is -it should be 'just' compensation, i.e. to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence'.
17. In the light of the above discussion, I do not find any merit in the submission of counsel for the appellant. In the judgment cited by the counsel in Shanti Pathak's case (supra) the Hon'ble Apex Court has not dealt with the said legal proposition and, thereforee, the same is not applicable in the facts and circumstances of the present case.
18. There is no merit in the appeal and the same is dismissed.