NATIONAL INSURANCE CO LTD Vs. SAVERI DEVI

JUDGEMENT

(1.) By this common judgment F.A.O. No. 504 of 2002 and F.A.O. No. 452 of 2003, treating the same as on day's list with the consent of learned counsel for the parties are being disposed of together.

(2.) In F.A.O. No. 504 of 2002 the appellant National Insurance Co. Ltd. has challenged the award dated 5.8.2002 passed in M.A.C. Petition No. 28-B of 2000 by learned Motor Accidents Claims Tribunal (3), Kangra at Dharamshala on various grounds. In F.A.O. No. 452 of 2003 the claimants have come up in appeal against the aforesaid award only to the extent that the compensation amount awarded is on the lower side and that it deserves to be enhanced appropriately.

(3.) Insofar as F.A.O. No. 504 of 2002 is concerned, after hearing the learned counsel for the parties, I find that none of the defences available to an insurer in terms of section 149 (2) of the Motor Vehicles Act, 1988 arise or come up for consideration or adjudication in this appeal because the impugned award has been assailed by appellant insurer in the appeal and during the course of hearing today also Mrs. Sharma focused her ground of challenge only on the issue relating to the factum of accident, viz., whether the accident occurred because of any rashness or negligence on the part of the driver of truck No. HP 39-3152 and on the issue whether the Tribunal has erred in granting higher or excessive amount of compensation. It is well settled law by now that these grounds of challenge in an appeal are not available to an insurer as these are not available to an insurer by way of defence also in the Claims Tribunal. On this being pointed out, Mrs. Sharma drew my attention to the application filed by the appellant insurer in the Tribunal under section 170 of Motor Vehicles Act, 1988 seeking Tribunal's permission to defend the claim petition on all grounds available to the owner and driver, in addition to the defences available to the insurer under section 149 (2) of the Act. Mrs. Sharma submits that the Tribunal did not pass any order on this application. I have seen the file of the Tribunal as also the order-sheet maintained by the Claims Tribunal and do agree with Mrs. Sharma's submission that indeed the Tribunal did not pass any order disposing of the aforesaid application of the appellant insurer. It is expected that whenever an application is filed by a party, interlocutory in nature or otherwise, during the pendency of the proceedings in a matter, the Tribunal/court must ensure that such an application is disposed of. My attention has been drawn to interlocutory order dated 23.8.2001 passed by learned Tribunal in which he held the application as premature as at that stage and deferred the passing of the order thereupon until after the conclusion of the evidence. I am at a total loss to appreciate as to how could the application be considered or held as premature in view of the clear stand taken in the application that the owner and driver had colluded with claimants and/or they had failed to contest the claim petition. Whether the aforesaid allegation of the appellant insurer in the aforesaid application was correct or it was not correct alone was a matter which warranted a decision by the trial court. If, based on the Claims Tribunal's record and whatever material it had before itself the Tribunal came to the conclusion that there was no collusion between the claimants and owner and driver and that owner and driver had not failed to contest the claim petition, the application filed under section 170 of the Act straightaway deserved dismissal. There was no question of the application ever being held or found to be premature and similarly there was no question of such an application having been kept pending with a view to defer decision thereupon at a later stage. Even if initially the learned Tribunal would find that there was no collusion between petitioner-claimants and owner and driver or that owner and driver were in fact contesting the claim petition, a situation could arise in future, at another point of time when the circumstances might dramatically alter and the altered circumstance might point out that owner and driver had at a subsequent stage of the proceedings colluded with claimants or they had stopped contesting the claim petition. Such an altered situation always entitled the insurer to file a second/subsequent application which had to be entertained, considered and disposed of on the basis of situation/circumstance as would be prevalent at such a subsequent stage. Holding the application thus to be premature or deferring its decision to a future date, were both uncalled for since under the scheme of section 170 of the Act such a contingency was not catered for by the legislature and the Tribunal should not have taken such a stand. The application thus remained undisposed of which it should not have. The Tribunal committed a material irregularity in not disposing of the application.