J.P. Singh, J.
1. Oriental Insurance Company has approached this Court under Section 173 of Motor Vehicles Act, 1988 to question award dated 31.12.2002 of Motor Accidents Claims Tribunal, Ramban, awarding an amount of Rs. 71,000/- (Rupees seventy one thousand) to claimant/respondent No. 3, alongwith interest @ 7% per annum.
2. Sh. Vishnu Gupta, learned Counsel for the appellant Insurance Company, questioned the quantum of compensation awarded by the Tribunal to Mst. Sakeena Begum for the injuries received by her on 31.03,2001, when a goods vehicle bearing registration No.PB06-5277 driven by Omkar Singh from Srinagar to Jammu, hit Mst. Sakeena Begum at Chanderkote.
3. Sh. O.P. Thakur, learned Counsel appearing for respondent No. 3/claimant, raised a preliminary objection that the appeal by the Insurance Company may not be maintainable as the Company had not sought requisite permission under Section 170 to contest the claim petition on defences, which could have been raised by the owner and the driver of the vehicle. Sh. Thakur relies on 'National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors.' reported as 2002 (6) Supreme 362.
4. Sh. Vishnu Gupta relied upon 'National Insurance Co. Ltd. v. Bashir Ahmad Gojri and Ors. reported as 2000 ACJ 1108, a Single Judge judgment of this Court holding that the permission under Section 170 of the Motor Vehicles Act, 1988, will be deemed to have been granted if the Insurance Company had been permitted to cross-examine the witnesses on all those defences, which were available to owner/driver of the vehicle, regardless of its having not been specifically permitted by the Tribunal so to do.
5. I have considered the submissions of learned Counsel for the parties.
Section 170 of the Motor Vehicles Act, 1988, reads, thus:
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 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.
6. Permission contemplated by Section 170 of the Motor Vehicles Act, 1988, may be granted by a Claims Tribunal only if it was satisfied that there was collusion between the person making the claim and the person against whom the claim was made or the person against whom the claim was made had failed to contest the claim. After recording satisfaction as aforementioned the Tribunal is further required to record reasons for granting permission to the insurer to contest the case without prejudice to the provisions contained in Sub-section (2) of Section 149 on all or any of the grounds that were available to the person against whom the claim had been made.
7. Permission contemplated by Section 170, in my opinion, is not a mere formality, which has to be granted as a matter of course when conditions contemplated by Section 170 (a) or (b) are satisfied. I am of the opinion that the Tribunal is required to consider as to on which one or the other ground the permission was required to be granted to the Insurance Company and that too, if it was satisfied to grant such permission, for which purpose the Tribunal is required to record reasons before granting such permission.
8.The Insurance Company has not sought any such permission from the Tribunal in the present case, which position, on facts, is admitted by learned Counsel for the parties. Question of 'deemed permission' to the Insurance Company would not, thus, arise in the present case and the judgment relied upon by Sh. Vishnu Gupta may not be of any advantage to the Insurance Company.
9. This apart, in view of the explicit dictum of Hon'ble Supreme Court of India in 'National Insurance Co. Ltd. Chandigarh v. Nicolietta Rohtagi and Ors.' (supra) the judgment delivered by a learned Single Judge of this Court in 'National Insurance Co. Ltd. v. Bashir Ahmad Gojri and Ors. (supra) may not be of any assistance to the Insurance Company, for, any judgment proceeding on premise contrary to the one concluded by the Hon'ble Supreme Court of India, cannot be followed still-less treated as a precedent. It would be advantageous to refer to what has been held by Hon'ble Supreme Court of India in the case in para 26 of the judgment, which for facility of reference, is quoted hereunder:
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 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. To the same effect is another judgment of Hon'ble Supreme Court of India in 'Shankarayya and Anr. v. United India Insurance Co. Ltd. and Anr.' reported as 1998 AIR SCW 2819. Para 4 of the judgment reads, thus:
4. It clearly shows that the Insurance Company when impleaded as a party by the Court can be permitted to contest the proceeding 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 defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined respondent No. 1. Insurance Company in the Claim Petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance. That was not an order of the Court itself permitting the Insurance Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, respondent No. 1- Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal.
11. The preliminary objection raised by Sh. O.P. Thakur, therefore, prevails and the appellant is held disentitled to question the quantum of compensation awarded by the Tribunal. Even otherwise, I do not find any merit in the submissions of Sh. Vishnu Gupta that the compensation is, in any way, excessive for the injuries, which Mst. Sakeena Begum received in the motor vehicle accident because of which, according to the finding of the Tribunal, she had been disabled and was produced before the Tribunal in a disabled condition.
12. The Insurance Company has ventured in unnecessary litigation in dragging the disabled injured upto this Court, thereby perpetuating the litigation for a period of about five years. I find that it is a fit case where the appeal should be dismissed with costs.
13. Accordingly, the appeal is dismissed with costs quantified at Rs. 5,000/- (Rupees five thousand).
14. The amount deposited by the Insurance Company in this Court shall be released by Registrar Judicial in favour of respondent No. 3/claimant alongwith interest accrued thereon in accordance with this judgment minus the amount already received by the claimant during the currency of proceedings before the Tribunal and this Court.