H.R.PANWAR, J. - (1.) THIS appeal is directed against the judgment and award dt. 15.11.1995 passed by learned Motor Accident Claims Tribunal No. 2, Udaipur (hereinafter referred to as 'the Tribunal'), whereby the Tribunal awarded compensation of Rs. 3,60,000/ - in favour of respondents No. 1 to 7, who were claimants before the Tribunal (hereinafter referred to as 'the claimants'). This appeal has been filed by New India Assurance Company Ltd. (hereinafter referred to as 'the insurance company') by joining the owner of the vehicle involved in the accident as appellant.
(2.) I have heard learned Counsel for the parties. Perused the judgment and award impugned and also the record of the Tribunal. Learned Counsel for the claimants contended that a joint appeal by the insurance company joining the owner as appellant is not maintainable. The insurance company by jointly filing the appeal may not maintain it for a simple reason that appeal by the insurance company may stand on different footing than an appeal by the owner or the driver and, in the circumstance the cause of action for taking up the appeal in both cases may differ from each other inasmuch as the insurance company would contest its liability to indemnification, whereas the owner or the driver defends his case on entirely different footing. The insurance company comes into play only when the liability of the insured has been held where under the certificate of insurance the insurance company is partly or entirely liable to indemnify. This is because of this fact that grievance of the owner or that of the driver of the offending vehicle against the award differs from the grievance of the insurance company challenging the award and the insurance company cannot stretch out the limited scope available to it by associating the driver of the offending vehicle or the insured owner trying to seek an advantage. This controversy came to be considered by Hon'ble Supreme Court in Narendra Kumar and Anr. v. Yarenissa and Ors., : (1998)9SCC202 , wherein, their Lordships held that it is a different matter that claimants normally make the insurance company a party to the claim application. That by itself cannot confer a right of appeal on the insurer. The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the Insurance Company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistenly taken the view that the Insurance Company has no right to prefer an appeal under Section 110 -D of the Act (corresponding Section 173 of New Act) unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub -section (2) of Section 96 (corresponding) Section 149(2) of the New Act) or in the situation envisaged by Sub -section (2 -A) of Section 110 -C of the Act (corresponding Section 170 of New Act). If then the insurer and the owner of the offending vehicle file a joint appeal and if the Court comes to the conclusion that the insurer had no right to prefer an appeal under Section 110 -D of the Act because none of the defences mentioned in Sub -section (2) of Section 96 is available to it nor had a situation of the type envisaged by Sub -section (2 -A) of Section 110 -C arisen, it cannot be permitted to file an appeal whether on its own or in association with one or more of the tortfeasors against whom the award is made which the insurer is liable to answer as if a judgment -debtor. The view taken by the Hon'ble Supreme Court in Narendra Kumar and Anr. v. Yarenissa and Ors., (supra) was reiterated by subsequent judgment of Supreme Court in Chinnama George and Ors. v. N.K. Raju and Anr., AIR 2000 SC 1565, wherein, their Lordships held as under: The impugned judgment does not reflect any grievance of the owner or even that of the driver of the offending bus against the award of the Claims Tribunal. The insurer by associating the owner or the driver in the appeal when the owner or the driver is not an aggrieved person cannot be allowed to mock at the law which prohibit the insurer from filing any appeal except on the limited grounds on which it could defend the claims petition. We cannot put our stamp of approval as to the validity of the appeal by the insurer merely by associating the insured. Provision of law cannot be undermined in this way.
(3.) IT was further held by their Lordships that if none of the conditions as contained in Sub -section (2) of Section 149 of the Motor Vehicles Act exists for the insurer to avoid the policy of insurance, it is legally bound to satisfy the award. It cannot be a person aggrieved by the award. In that case, insurer will be barred from filing any appeal against the award of the Claims Tribunal.;