AMITAVA LALA,J. - (1.) THE issue is when the claim petition is disposed of by the Tribunal keeping the application under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act') pending, the same will be construed as implied permission by the Tribunal to the insurance company and, if at all can the appeal be disposed of on merit.
(2.) IT is pertinent to mention here that in 2008 (1) T.A.C. 266 (All.) (New India Assurance Company Ltd. Vs. Dr. Prem Singh Bhadauria and another) 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 scope of appeal can be said to be available for alleged pendency. In other words, pendency can be couched in 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 insurance companies' plea particularly in absence of statutory defence under Section 149(2) of the Act, implied permission could not have been couched. Ratio of such judgment has been followed by this Bench in the subsequent judgments inclusive of the judgment reported in 2009 (1) AWC 340 (New India Assurance Co. Ltd. Vs. Smt. Padma Devi and others). 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, can not prefer the appeal. Insurers have limited independent right to prefer the appeal unless there is a clear violation of Section 149 (2) of the Act. However, insurance companies are not remediless for their relief.
(3.) IN AIR 2002 SC 3350 (National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others) we find as follows: "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 the appeal being a product of the statute, it is not open to an insurer to take any other plea other than those provided in Section 149(2) of 1988 Act. The view taken in United India Insurance Co. Ltd. v. Bhushan Sachdeva, (supra) 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 (supra) that since the insurance companies are nationalised and are dealing with public money/fund 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 the 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 (2) SCC 654, it was observed thus : "In other words, the legislature has insisted and make 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 premise. Such a benign provision enacted by the legislature having regard to the fact that in the 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 light 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 was to protect the interest of third party rights. The 1939 Act as well as 1988 Act both were enacted on 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 the learned Judges in United India Insurance Co. Ltd. (supra) 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 (supra) does not lay down the correct view of law." (Emphasis supplied) ;