S.P.Srivastava, Actg. C.J. - (1.) I have had an opportunity to go through the judgment in draft prepared by my learned brother, Ashok Bhushan, J. I agree that this writ petition under Article 227 of the Constitution of India deserves to be dismissed. However, I would like to add a few words.
(2.) The legislative policy underlying the various provisions of the Motor Vehicles Act clearly indicates that the right to appeal contemplated under section 173 of the said Act, so far as the insurer is concerned, is not an absolute right but has been made subject to certain conditions. The statute does not recognize or provide for any remedy to an insurer against an award, if the requisite conditions are not satisfied. In its decision in the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC), the Supreme Court had clearly indicated that in the absence of the grant of permission envisaged under section 170 of Motor Vehicles Act, it is not open to an insurer to challenge the quantum of compensation award raising a defence other than the statutory defences permissible under the Act, which may be available to an insured or owner. The legislative intent cannot be set at naught by the permitting recourse to a remedy which is not contemplated for the insurer. It is, therefore, obvious that in the absence of any permission as contemplated under section 170 of the Motor Vehicles Act, plea raising defence other than the statutory defences cannot be permitted to be raised by an insurer in any proceeding whether it be a revision under section 115 of Civil Procedure Code or a writ petition under Article 227 of the Constitution of India. Doing so will tantamount to violation of the legislative intent/ policy underlying the provisions of the Motor Vehicles Act as amended.
(3.) It may be noticed that the question as to whether the insurance company can challenge the quantum of compensation under section 115 of the Civil Procedur Code or under Article 227 of the Constitution of India had come up for consideration before a Full Bench of the Madhya Pradesh High Court in its decision in the case of New India Assurance Co. Ltd. v. Rafeeka Sultan, 2001 ACJ 648 (MP). After taking into consideration a large number of decisions of various courts including the Apex Court, the Full Bench had come to the conclusion that the remedy of revision under section 115 of the Civil Procedure Code or a writ petition under Article 227 of the Constitution of India was not available to an insurer. In that case the insurer had assailed the award of the Motor Accidents Claims Tribunal through a civil revision under section 115 of the Civil Procedure Code, challenging the quantum of compensation. Before the Full Bench, it had been urged that the insurance company could not challenge the quantum of compensation and as it had to remain confined to the limited defences available to the insurance company.;