Kolla Ravindra Vs. Kantamaneni Sri Lakshmi Sambrajyam and ors. - Court Judgment

Excerpt:
- 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - the learned counsel placed strong reliance on the decision of the full bench of this court in gurram seetharam reddy v.p.s. narayana, j.1. c.m.p. no. 2226 of 2006 is filed to vacate the interim stay granted on 2.11.2006 in c.m.p. no. 1969 of 2006. sri p. gopal das, learned counsel representing the vacate petitioner, respondent no. 1 in civil miscellaneous appeal raised a preliminary objection relating to the maintainability of the civil miscellaneous appeal. the learned counsel placed strong reliance on the decision of the full bench of this court in gurram seetharam reddy v. gunti yashoda : air2005ap95 2. sri v.v. anil kumar, learned counsel representing the appellant in the civil miscellaneous appeal would contend that in view of the confused legal position prevailing on the said day, the civil miscellaneous appeal had been preferred. the learned counsel also would contend that liberty may be given to prefer a regular appeal in the light of the decision of the full bench referred to supra.3. heard the counsel.4. though the matter is coming under the caption 'interlocutory', inasmuch as an objection relating to maintainability of the civil miscellaneous appeal is raised and after hearing the counsel on record, at the request of the counsel the civil miscellaneous appeal is being disposed of finally.5. the present civil miscellaneous appeal is filed by the appellant-claim petitioner as against the order made in e.a. no. 281 of 2005 in e.p. no. 189 of 202 in o.s. no. 332 of 1988 on the file of i additional senior civil judge, guntur. the learned i additional senior civil judge, guntur, recorded certain reasons and ultimately dismissed the e.a. no. 281 of 2005 in e.p. no. 189 of 2002 in o.s. no. 332 of 1988 with costs by an order dated 9th october 2006. aggrieved by the same, the claim petitioner preferred the present civil miscellaneous appeal.6. while reconsidering the view expressed by the division bench of this court in b. nookaraju v. m.s.n. charities : air1994ap334 , the full bench of this court in gurram seetharam reddy v. gunti yashoda (supra), held that against an order passed under rule 58 (3) and rules 98 and 100 of order 21 of c.p.c. regular appeals under section 96, but not miscellaneous appeals under section 104 read with order 43 rule 1 of c.p.c. are maintainable and the judgment in b. nookaraju v. m.s.n. charities (supra), does not represent correct position of law. it is also stated that in view of the pecuniary jurisdiction, regular appeal does not lie to this court, but would lie to the district court, guntur.7. in the light of the same and in view of the decision of the full bench referred to supra, this court is of the opinion that the civil miscellaneous appeal as such is not maintainable. however, liberty is given to the appellant to file regular appeal to the appropriate court, if the appellant is so advised, and if need be by moving appropriate application under section 14 of the limitation act, 1963.8. with the above observations, the civil miscellaneous appeal is hereby dismissed. no order as to costs.