- (1.) HEARD . On 24.5.1995, Ajit Dutta, who was aged about 42 years and was employed as teacher and was getting monthly salary above Rs. 5000/ - lost his life in a motor accident. While going to hospital to attend his ailing mother by his Motor Cycle, on the way he was dashed by a Bus (BRL - 2874) belonging to M/s. Dumka Transport (Private) Limited.
(2.) HIS widow and minor children filed Title Claim Suit No. 40 of 1995 under Section 166 of the Motor Vehicles Act. 1988 (hereinafter referred to as 'the Act '). Both owner as well as insurer of the Bus, namely, Oriental Insurance Company Limited were impleaded as parties. Both of them filed separate written statement. After the insurer is made a party to a claim case, under Section 149(2) of the Act, it is entitled to defend the action on the ground enumerated under the said provision and no other ground is available to it. It can avoid its liability only in accordance with what has been provided for in Section 149(2). Motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. It is permissible for the insurer to contest the claim also on the grounds, which are available to the insured or to the person against whom the claim has been made. In a recent decision of the Apex Court in National Insurance Company Limited V/s. Nicolletta Rohtagi and others, AIR 2002 SC 3350, it was held as under : "Thus unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 is satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act."
(3.) IT was further held "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 'sappeal 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 Company Limited V/s. 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....";