Judgment:
Mansoor Ahmad Mir, J.
1. The registry has reported vide note dated 25.06.2004 that the notice were sent to respondents 2 and 3 by post. There is no service return and respondents are deemed to have been served as per the mandate of order 5 Rule 19(A)(2) CPC. Thus the exparte proceedings are drawn against the respondents 2 and 3.
2. By the medium of this appeal appellant has assailed the award dated 30th August, 2003 passed by Presiding Officer, Motor Accident Claims Tribunal, Anantnag in the claim petition titled as Nisar Ahma Wani v. Mehboob Ahmad and Ors., on the ground taken in the memo of appeal. The said grounds can be summarized as under;-
That the accident has occurred due to rash and negligent driving of the driver of the CRPF vehicle, thus the insurance company/appel-lant cannot be saddled with the liability. The Tribunal has not appreciated the said point of fact.
3. The respondents 2 and 3 i.e. owner and driver have not participated in the proceedings, thus under law the appellant has a right to file appeal on all the grounds which are available to the owner and driver, even though express permission has not been sought from the Tribunal. That the awarded compensation is not just.
4. Heard. Learned counsel for appellant addressed arguments that actually the driver of the CRPF vehicle has driven the vehicle rashly and negligently and has caused the accident. Thus the appellant cannot be saddled with the liability and the appellant is within his rights to contest the award on all grounds which are available to driver and owner in terms of Section 170 of Motor Vehicles Act and the just compensation has not been awarded.
5. Mr. Attar while rebutting the arguments argued that the grounds taken in the memo of appeal and argued by learned counsel for the appellant are not available to the appellant/insurance company in terms of Provisions of section 149 of Motor Vehicles Act. The permission has not been sought in terms of Section 170 of Motor Vehicles Act. Thus the appellant/ insurance company cannot challenge the award on the grounds available to the driver and owner. The Insurance Company cannot challenge the quantum of compensation.
6. Considered.
It is profitable to reproduce section 149(2) of Motor Vehicles Act herein, which reads as under:
'149(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 of 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 brining 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 organized 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 or war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular,'
7. While going through this provision of law, it is crystal clear that on what grounds the Insurance Company can defend the claim and assail the judgment. The grounds are limited.
8. The insurance agency cannot challenge the quantum of compensation. No-doubt that Apex Court in a judgment reported in : [2002]1SCR352 titled United India Assurance Company Limited v. Bushan Sachdeva, lays down that Insurance Agency can question the quantum of compensation but the said judgment stands overruled by the Apex Court in a judgment reported in : [2002]SUPP2SCR456 National Insurance Company Ltd., v. Nicolletta Rohtagi. It is profitable to reproduce para 29 and 32 of the judgment reported in : [2002]SUPP2SCR456 herein;-
'29. For the aforesaid reasons, as well as that the Act, we are of the view that the decision in United India Insurance (supra) does not lay down the correct view of law.
32. For the aforesaid reasons, our answer to the question is that even if no appeal is preferredunder Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for aninsurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle.'
9. The perusal of the lower court file reveals that the issues have been framed. The issue No. 3 reads as under;-
Whether the accident had taken place due to the rash and negligent driving of CRPF vehicle which had dashed against the offending vehicle? 0PR1
10. The onus of issue No. 3 was on respondent No. 2 (respondent 1 in tribunal). The said respondent has failed to discharge onus, thus there is no evidence on the file suggesting the fact that accident has taken place due to the rash and negligent driving of the driver of CRPF vehicle. The respondents 2 and 3 have been held liable and accordingly saddled the appellant with liability. Thus the appellant (Insurance Company) cannot raise the ground that driver/respondent No. 2, namely, Mahboob Ahmad Khan has not driven the vehicle rashly and negligently.
11. It is pertinent to mention herein that the onus of issue No. 2 was on claimant (respondent 1) to prove that accident has taken place due to the rash and negligent driving and due to excessive speed of driver (respondent No. 2). The issue stands decided in favour of respondent No. 1 (claimant). The said finding has not been assailed by the driver and owner, thus this ground is not available to the appellant. The grounds which are available to the Insurance Company appellant are given in Section 149(2) of M.V. Act. While going through the said provision of law, one comes to an inescapable conclusion that the Insurance Company cannot raise the ground(s) which are not contained in Section 149(2) of M.V. Act.
12. The appellant has also mentioned in the memo of appeal that the express permission has not been sought in terms of Section 170 of M.V. Act to contest the claim on the grounds available to the driver and owner. Thus the appellant cannot challenge the award on the said grounds. It is profitable to reproduce Section 170 of Motor Vehicles Act herein, which reads as under;-
'170. Impleading insurer in certain cases. Wherein 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 reason 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 a any of the grounds that are available to the person against whom the claim has been made.'
13. While going through this provision of law, one comes to inescapable conclusion that specific permission is to be sought by the insurer then the insurer can file the appeal or contest the claim on all grounds which are available to driver and owner.
14. The Act like Motor Vehicles Act being a beneficial legislation is for quick redressal of the grievances of the victims of accidents arising out of the use of motor vehicles. It is the duty of the court to achieve the purpose as early as possible and prevent the Insurance Company from contesting the claims in routine manner, so that the object of the Act is not frustrated.
15. While applying the test to the instant case, no permission is sought, thus the appellant cannot challenge the award on the grounds taken in the memo of appeal.
16. However, I have gone through the award, the award is well reasoned and speaking, needs no interference.
17. Viewed, thus appeal is dismissed. Impugned award is upheld. Send down the record immediately.