Kanhayya Pershad Vs. Gopikishen Ram Dayal - Court Judgment

Excerpt:
hyderabad civil procedure code (act iii of 1323 fasli), sections 127, 160 - ex parte order, whether can be set aside in part--section 160, scope and applicability of. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. 1. arguments were heard from the records it appears that the suit was decreed ex parte and the application was presented to set it aside. the learned judge of the original side allowed the application and made the following order:the original decree dated 11th amerdad 1341 fasli is set aside to the extent of interest allowing the remaining decree to stand.2. against this order the miscellaneous appeal has been filed, before us. there is no doubt that under the law a court has got powers to decree the suit in respect of the matters admitted and to proceed with the suit in respect of the matters dispute. this seems to be the underlying idea of the original court. but the difficulty is that there is no provision to, allow the farmer decree to stand. when the ex parte judgment is set aside the decree based on that judgment will be deemed to cease to be nullus functo. there is no provision in law to set aside an ex parte order in part. as stated above, ordinarily the ex parte decree will be set aside in to when there are sufficient and proper reasons for doing so and, the defendant will be given opportunity to defend. vide section 127, hyderabad civil procedure code, act no. iii of 1323 fasli. however, under section 160, civil procedure code, if the defendant admits the claim of the plaintiff in part the court has got powers to pass the order or judgment it deems proper without waiting for the disposal of any other question. but this provision has application only when the case is pending. in a case where a judgment has been given ex parte and an application to set it aside is presented the court cannot act under the provisions of section 160, civil procedure code. if it so acts it cannot but encounter the difficulty as is clear from the facts of the present case. by this time that part of the suit has also been adjudicated upon finally by the lower court respect of which the part of the judgment was set aside and hence the defendant is at liberty to pursue various remedies. the present miscellaneous appeal, is against that order whereby the decree has been, allowed, to stand in part. it is urged that the order of the lower court is not correct and the matter that is alleged to be admitted is really in dispute. under the circumstances we deem it proper to grant the application to set aside the ex parte judgment for which sufficient reasons exist and to remand the case to the court of first instance for proper orders on the merits. so the appeal is allowed as directed above.3. the parties to bear their own costs.