In Re: Kotta Narayan 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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 sessions judge has accepted this argument and has recommended to this court that this committal order should be quashed on this ground alone. there is in my opinion a discretion vested in the magistrate if he is satisfied that a prima facie case is made out, to commit the accused to sessions after the examination of the witnesses produced by the prosecution, not necessarily all the witnesses relied upon by the prosecution.ordersrinivasachari, j.1. these are applications for the grant of bail on behalf of three accused persons who have been committed to the sessions by the magistrate of siddipet. as against twelve persons charges were laid under sections 148, 149, 324, 325 and 302 i.p.c. read with section 34 i. p, c after they were produced before the magistrate the prosecution examined two witnesses. the medical officer's evidence was recorded and after examining the accused the magistrate committed the case to sessions to take their trial under the above sections.before the sessions judge an application for the grant of bail was filed on behalf of the accused who were committed to the sessions. the argument advanced in support of the application for bail was that according to section 207(a) of the criminal procedure code the magistrate ought to have insisted upon the prosecution examining all eye-witnesses and the committal order made on the evidence of only two witnesses who were examined was not according to law.the sessions judge has accepted this argument and has recommended to this court that this committal order should be quashed on this ground alone. i do not think that the sessions judge is correct in his opinion, as if it were so held it would leave no discretion to the committing magistrate to commit the accused to sessions where all the witnesses relied on by the prosecution were not examined by the prosecution.there is in my opinion a discretion vested in the magistrate if he is satisfied that a prima facie case is made out, to commit the accused to sessions after the examination of the witnesses produced by the prosecution, not necessarily all the witnesses relied upon by the prosecution. this order in my opinion cannot stand. the sessions judge however rejected the application for the grant of bail on the ground that the matter had been sent up to the high court.2. the learned counsel for the petitioners argues that this is a case where both the parties were having a free fight and it has not been determined as to who were the aggressors and in case of this kind the court ought to exercise its discretion in favour of granting the bail. it is unnecessary to refer to the authorities cited by him because each case stands on its own facts and circumstances. the sessions judge while considering the bail applications has opined that at that stage he was not in a position to grant bail. he has also stated that the matter relating to the quashing of the committal order was being sent up to the high court for final orders.3. i am of the opinion that the accused could move the sessions court and renew their applications for grant of bail at any stage of the trial if they so choose. these applications are therefore dismissed.4. the case will now go to the sessions court for trial.

Judgment:
ORDER

Srinivasachari, J.

1. These are applications for the grant of bail on behalf of three accused persons who have been committed to the Sessions by the Magistrate of Siddipet. As against twelve persons charges were laid Under Sections 148, 149, 324, 325 and 302 I.P.C. read with Section 34 I. P, C After they were produced before the Magistrate the prosecution examined two witnesses. The Medical Officer's evidence was recorded and after examining the accused the Magistrate committed the case to Sessions to take their trial under the above sections.

Before the Sessions Judge an application for the grant of bail was filed on behalf of the accused who were committed to the sessions. The argument advanced in support of the application for bail was that according to Section 207(a) of the Criminal Procedure Code the Magistrate ought to have insisted upon the prosecution examining all eye-witnesses and the committal order made on the evidence of only two witnesses who were examined was not according to law.

The Sessions Judge has accepted this argument and has recommended to this Court that this committal order should be quashed on this ground alone. I do not think that the Sessions Judge is correct in his opinion, as if it were so held it would leave no discretion to the committing Magistrate to commit the accused to Sessions where all the witnesses relied on by the prosecution were not examined by the prosecution.

There is in my opinion a discretion vested in the Magistrate if he is satisfied that a prima facie case is made out, to commit the accused to Sessions after the examination of the witnesses produced by the prosecution, not necessarily all the witnesses relied upon by the prosecution. This order in my opinion cannot stand. The Sessions Judge however rejected the application for the grant of bail on the ground that the matter had been sent up to the High Court.

2. The learned Counsel for the petitioners argues that this is a case where both the parties were having a free fight and it has not been determined as to who were the aggressors and in case of this kind the court ought to exercise its discretion in favour of granting the bail. It is unnecessary to refer to the authorities cited by him because each case stands on its own facts and circumstances. The Sessions Judge while considering the bail applications has opined that at that stage he was not in a position to grant bail. He has also stated that the matter relating to the quashing of the committal order was being sent up to the High Court for final orders.

3. I am of the opinion that the accused could move the Sessions court and renew their applications for grant of bail at any stage of the trial if they so choose. These applications are therefore dismissed.

4. The case will now go to the Sessions Court for trial.