HEMCHANDRA CHOUDHURY AND ORS. Vs. DR. HARMOHAN PATHAK
HIGH COURT OF GAUHATI
Hemchandra Choudhury And Ors.
Dr. Harmohan Pathak
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B.L. Hansaria, J. -
(1.)AN award was passed in a motor accident claims case in favour of the claimant who was injured in an accident which had taken place on 14.11.68 at about 2.15 P.M. in the city of Gauhati itself. The Claimant is a medical practitioner and his case is that he had sustained head injury with fractures on different parts of the body and had injury undergone pain and suffering. On being satisfied that the accident was due to negligence on the part of the driver, a sum of Rs. 20,000/ has been awarded in favour of the claimant which, as per the award, "will be realized from the Insurer the opposite party No. 3 M/S. Phoenix Assurance Company Limited, Gauhati or other authority which has taken the responsibility of the business of the said company, "This appeal has been preferred jointly by the owner of the vehicle, the driver of the same and the insurance company.
(2.)SRI Das for the Respondent has raised preliminary objection regarding the maintainability of the appeal inasmuch as the owner and the driver could not have come up to this Court. Under Section 110Dof the Motor Vehicle Act, 1939 (the Act, for short) an appeal can be preferred by "any person aggrieved by an award of a Claims Tribunal". We have therefore to decide whether the owner and the driver can be regarded as persons aggrieved. This aspect is important not only for deciding the question of maintainability, but also to see if the insurer (in case it alone could file the appeal) could agitate before us the question of negligence or quantum of compensation.
So far as the second aspect is concerned, Sri Bhuyan the learned Counsel for the Appellants, has fairly admitted that an insurer cannot travel in his defense beyond what has been prescribed in Section 96(2) of the Act. This view was first expressed by the Apex Court in British India General Insurance Company v. Itbar Singh, : AIR 1959 SC 1331. There is no dispute before us that what is stated in Section 96(2) would apply in an appeal also. Shri Bhuyan however submits that as the owner and the driver, more particularly the owner, has joined hands in preferring the appeal we can examine the question of negligence and quantum also.
(3.)IT has therefore to be seen whether the owner could have preferred the present appeal. As alluded, Section 110D has conferred the right of appeal on a 'person aggrieved' by the award. The appeal being a creature of a statute, this right can flow only from what has been laid down in this aforesaid section. Though no compensation has been made payable by the owner, Sri Bhuyan contends that the owner could nonetheless prefer the appeal because it is the negligence of his driver which has led to the award of compensation, and which has been made payable by the insurer because of the provision in Sections 95 and 96 of the Act.
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