- (1.) ALL the aforesaid appeals have been analogously heard on the common cause. The common cause is that when the claim petitions are being disposed of by the Tribunals keeping the application under section 170 of the Motor vehicles Act, 1988 (hereinafter referred to as 'the Act') pending due to oversight or inadvertent mistake, whether the same will be construed as implied permission by the tribunal to the insurance companies to prefer the appeal or not. It is pertinent to mention here that in New India Assurance co. Ltd. v. Dr. Prem Singh Bhadauria, 2009 ACJ 970 (Allahabad), this Bench has decided the issue by holding a view that no one can be allowed to draw any favourable inference by saying that there is an implied permission in such circumstances. No application either interim or interlocutory or miscellaneous in nature can be treated to be pending when the main cause by way of suit or proceeding is disposed of either way. Non-recording of any such order in any of such applications is a bona fide mistake. No chance can be said to be available for such alleged pendency. In other words, pendency can be couched both ways. It can be said to be implied permission or implied rejection. According to us, when an affirmative order is passed ignoring or refusing the insurance companies plea, particularly in absence of statutory defence under section 149 (2) of the Act, implied permission could not have been couched.
(2.) ACCORDING to us, the appeal is a creature of statute. Therefore, unless statute prescribes to prefer the appeal, an insurer, as a matter of course, cannot prefer the appeal. Insurers have limited independent right to prefer the appeal provided there is a clear violation of section 149 (2) of the act. Even mere raising of such points before the Tribunal will not suffice. But, at the same time insurance companies are not remediless as discussed hereunder. It is to be remembered that an insurer, either running as a public or private company is made to help the people under a beneficial piece of legislation and in the process makes profit out of business but not other way round. If the court starts encouraging the causes of insurers, the mission of creation of statute to give equitable relief to the ultimate sufferer will be frustrated. Therefore, law cannot be read in the manner other than it is written. In national Insurance Co. Ltd. v. Nicolletta rohtagi, 2002 ACJ 1950 (SC), we find the similar ratio in paras 27, 28 and 29 which are quoted hereunder: " (27) This matter may be examined from another angle. The right of appeal is not an inherent right or common law right, but it is a statutory right. If the law provides that an appeal can be filed on limited grounds, the grounds of challenge cannot be enlarged on the premise that the insured or the persons against whom a claim has been made has not filed any appeal. Section 149 (2) of 1988 act limits the insurer's appeal on those enumerated grounds and appeal being a product of the statute, it is not open to an insurer to take any plea other than those provided in section 149 (2) of 1988 Act. The view taken in United India Insurance Co. Ltd. v. Bhushan Sachdeva, 2002 ACJ 333 (SC), that a right to contest would also include the right to file an appeal is contrary to well established law that creation of a right to appeal is an act which requires legislative authority and no court or Tribunal can confer such right, it being one of limitation or extension of jurisdiction. Further, the view taken in United India Insurance co. Ltd. v. Bhushan Sachdeva (supra)that since the insurance companies are nationalised and are dealing with public money/funds and to deny them the right of appeal when there is a collusion between the claimants and the insured would mean draining out or abuse of public fund is contrary to the object and intention of Parliament behind enacting chapter XI of 1988 Act. The main object of enacting Chapter XI of 1988 Act was to protect the interest of the victims of motor vehicle accidents and it is for that reason the insurance of all motor vehicles has been made statutorily compulsory. Compulsory insurance of motor vehicle was not to promote the business interest of insurer engaged in the business of insurance. Provisions embodied either in 1939 or 1988 Act have been purposely enacted to protect the interest of travelling public or those using road from the risk attendant upon the user of motor vehicles on the roads. If law would have provided for compensation to dependants of victims of motor vehicle accident, that would not have been sufficient unless there is a guarantee that compensation awarded to an injured or dependant of the victims of motor accident shall be recoverable from person held liable for the consequences of the accident. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC), it was observed thus: 'in other words, the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the dependants of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in modern age the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has, therefore, to be interpreted in the twilight of the aforesaid perspective. ' (28) We have noticed the legislative development in regard to third party rights in England and found that the object of those legislations were to protect the interest of third party rights. The 1939 Act as well as 1988 Act both were enacted on the pattern of English statute with the object to relieve the distress and miseries of victims of accidents and reduce the profitability of the insurer in regard to occupational hazard undertaken by them by way of business activities and not to promote business interests of insurance companies even though they may be nationalised companies. (29) For the aforesaid reasons, as well as that learned Judges in United India insurance Co. Ltd. v. Bhushan Sachdeva, 2002 ACJ 333 (SC), have failed to notice the limited grounds available to an insurer under section 149 (2) of the act, we are of the view that the decision in United India Insurance Co. Ltd. (supra) does not lay down the correct view of law. "
(3.) WE have repeatedly followed this well discussed judgment. In such judgment a further question arose with regard to fraud which is not relevant herein. However, it is well-known that fraud and nullity can be raised at any time by any of the parties even in the collateral proceedings. The issue before us is different. According to appellants, when as per the ratio of United india Insurance Co. Ltd. v. Jyotsnaben sudhirbhai Patel, 2003 ACJ 2107 (SC), a reasoned order is required to be passed, even non-passing of any order by the learned Judge is illegal or not. Therefore, the question arose about the reading of section 170 of the Act which is as follows: "impleading insurer in certain cases.-Where in the course of any inquiry, the claims Tribunal is satisfied that - (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2)of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. ";