Hon'ble the Supreme Court in a case of National Insurance Co.
Ltd vs. Nicolletta Rohtagi and others 2002(4) RCR (Civil) 464
wherein Hon'ble the Supreme Court had discussed in detail the
provisions of Section 149 of the Motor Vehicles Act and has held
that the Insurer is entitled to file an appeal only on the issues and
grounds prescribed under Section 149(2) or on satisfaction of the
conditions prescribed specified in Section 170 not to challenge
only quantum of compensation. Hon'ble the Supreme Court in
para Nos. 19, 20, 21, 22 & 31 observed as under:-
“19. In Shankarayya and Anr. v. United India
Insurance Co. Ltd. and Anr. [1998] 3 SCC 140, it
was held that an insurance company when impleaded
as a party by the Court can be permitted to contest the
proceedings on merits only if the conditions precedent
mentioned in Section 170 are found to be satisfied and
for that purpose the insurance company has to obtain
an order in writing from the Tribunal and which
should be a reasoned order by the Tribunal. Unless
this procedure is followed, the insurance company
cannot have a wider defence on merits than what is
available to it by way of statutory defences. In
absence of the existence of the conditions precedent
mentioned in Section 170, the insurance company was
not entitled to file an appeal on merits questioning the
quantum of compensation.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.3601 of 2015 (O&M)
Date of decision: 14.12.2015
IFFCO Tokio General Insurance Company Limited
Versus
Suman Rani and others
CORAM: HON’BLE MS. JUSTICE RITU BAHRI
Citation:2016 (4) ALLMR(JOURNAL) 4
This is an appeal filed by IFFCO Tokio General
Insurance Company Limited, against the award dated 02.12.2014,
passed by Motor Accident Claims Tribunal, SAS Nagar, Mohali,
vide which the claim petition was accepted and a sum of
Rs.27,19,600/- was allowed, on account of death of Virinder Singh
@ Varinder Singh, in a motor vehicular accident, which took place
on 14.08.2013.
FACTS NOT IN DISPUTE
Brief facts of the case are that on 14.08.2013, at about
06:30 a.m. Virinder Singh @ Varinder Singh was going from
village Dyalpura to Zirakpur for distribution of milk by driving his
motorcycle bearing No.PB-70-B-0637, at a slow speed and on left
side of the road. He was being followed by Sandeep Singh and
Gurdeep Singh on a separate motorcycle. When he reached near
Gurudwara Nabha Sahib, he stopped his motorcycle on katcha
portion on extreme left side of the road and gave milk to Sewadar
of Gurudwara Sahib. When he was just to move his motorcycle
towards Zirakpur, an offending eicher vehicle bearing No.PB-03-
T-0982, came at a fast speed from behind and struck against his
motorcycle. The offending eicher vehicle was being driven in a
rash and negligent manner and at a fast speed by respondent No.1-
Swaran Singh. Due to this accident, he fell on the road and
suffered serious injuries. He was shifted to Government Medical
College and Hospital, Sector-32, Chandigarh and there he died
during the treatment on 21.08.2013.
In this regard, FIR No.337 dated 21.08.2013, under
Sections 279, 304-A and 427 IPC, in respect of the accident in
question was got registered at Police Station Zirakpur.
Consequently, the claimants-respondents filed a claim
petition before the Tribunal.
COMPENSATION ASSESSED BY MACT
Before the Tribunal, Sandeep Singh (eye-witness)
appeared as PW-2 and tendered his affidavit Ex.PW-2/A to prove
the accident in question. Suman Rani also appeared as PW-1 and
tendered her affidavit Ex.PW-1/A to corroborate the testimony of
PW-2.
On the basis of evidence led by the parties, the
Tribunal has returned the finding on Issue No.1 in favour of the
claimants-appellants. The claim petition was accepted by the
Tribunal and a sum of Rs.27,19,600/- was awarded as
compensation on account of death of Virinder Singh @ Varinder
Singh along with future interest at the rate of 6% per annum from
the date of filing of the petition till its realization. The
compensation assessed by the Tribunal is reproduced as below :-
Sr. No. Heads Calculations
1. Annual income Rs.1,20,000/-
2. 50% addition towards future prospects Rs.1,20,000+Rs.60,000/-
=Rs.1,80,000/-
3. 1/4th deducted as personal expenses of
deceased
Rs. 1,80,000 – Rs.45,000/-
=Rs.1,35,000/-
4. Compensation after multiplier of 18 is
applied
Rs. 1,35,000 x 18
=Rs.24,30,000/-
5. Loss of consortium Rs.1,00,000/-
6. Loss of care and guidance to minor child Rs.1,00,000/-
7. Medical expenses Rs.19,526/-
8. Pain and suffering Rs.20,000/-
9. Loss to estate Rs.25,000/-
10. Funeral expenses Rs.25,000/-
11. Total compensation awarded Rs.27,19,526/- (rounded
off to Rs.27,19,600)
Feeling dissatisfied with the impugned award, the
appellant-Insurance Company has preferred the present appeal i.e.
FAO No.3601 of 2015 titled as “IFFCO Tokio General
Insurance Company Limited vs Suman Rani and others”.
I have heard learned counsel for the parties and
perused the case file.
The fact of accident is admitted and proved. It stands
established that the deceased-Virinder Singh @ Varinder Singh
died, as a result of the accident.
The finding that the offending vehicle was driven in a
rash and negligent manner has rightly been recorded by the
Tribunal and does not call for interference.
Reference, at this stage, can be made to a judgment of
Hon'ble the Supreme Court in a case of National Insurance Co.
Ltd vs. Nicolletta Rohtagi and others 2002(4) RCR (Civil) 464
wherein Hon'ble the Supreme Court had discussed in detail the
provisions of Section 149 of the Motor Vehicles Act and has held
that the Insurer is entitled to file an appeal only on the issues and
grounds prescribed under Section 149(2) or on satisfaction of the
conditions prescribed specified in Section 170 not to challenge
only quantum of compensation. Hon'ble the Supreme Court in
para Nos. 19, 20, 21, 22 & 31 observed as under:-
“19. In Shankarayya and Anr. v. United India
Insurance Co. Ltd. and Anr. [1998] 3 SCC 140, it
was held that an insurance company when impleaded
as a party by the Court can be permitted to contest the
proceedings on merits only if the conditions precedent
mentioned in Section 170 are found to be satisfied and
for that purpose the insurance company has to obtain
an order in writing from the Tribunal and which
should be a reasoned order by the Tribunal. Unless
this procedure is followed, the insurance company
cannot have a wider defence on merits than what is
available to it by way of statutory defences. In
absence of the existence of the conditions precedent
mentioned in Section 170, the insurance company was
not entitled to file an appeal on merits questioning the
quantum of compensation.
20. In Narender Kumar and Anr. v. Yarenissa and
Ors. [1998] 9 SCC 202, question arose whether there
can be a joint appeal by an insurer and owner of the
offending vehicle. It was held that even in the case of
a joint appeal by the insurer and the owner of an
offending vehicle, if an award has been made against
the tort feasors as well as the insurer, even though an
appeal filed by the insurer is not competent, it may
not be dismissed as such. The tort feasor can proceed
with the appeal after the cause title is suitably
amended by deleting the name of the insurer. In the
said case, it also held thus:
"The ground on which the insurer can defend
the action commenced against the tort
feasors 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 consistently taken the
view that the Insurance Company has no
right to prefer an appeal under Section 110-
D of the 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 or in the situation envisaged by subsection
2(A) of Section 110-C of the Act.”
21. In Chinnama George and Ors. v. N.K. Raju
and Anr., [2000] 4 SCC 130, it was held that if none
of the conditions as contained in sub-section (2) of
Section 149 exists for the insurer to avoid the liability,
the insurer is legally bound to satisfy the award and
the insurer cannot be a person aggrieved by the
award. In such a case, the insurer will be barred from
filing an appeal against the award of the Tribunal. It
was also held that the insurer cannot maintain a joint
appeal along with the owner or driver if defence of
any ground under Section 149(2) is not available to it.
22. In Rita Devi (Smt) and Ors. v. New India
Assurance Co. Ltd and Anr. [2000] 5 SCC 113, it
was held that the insurer having not obtained
permission under Section 170 of 1988 Act, is not
entitled to prefer any appeal to the High Court
against the award given by the Tribunal on merits.
31. We have already held that unless the conditions
precedent specified in Section 170 of 1988 Act is satisfied,
an insurance company has no right of appeal to challenge
the award on merits. However, in a situation where there is
a collusion between the claimants and the insured or the
insured does not contest the claim and, further, the tribunal
does not implead the insurance company to contest the
claim in such cases it is open to an insurer to seek
permission of the tribunal to contest the claim on the ground
available to the insured or to a person against whom a
claim has been made. If permission is granted and the
insurer is allowed to contest the claim on merits in that case
it is open to the insurer to file an appeal against an award
on merits, if aggrieved. In any case where an application for
permission is erroneously rejected the insurer can challenge
only that part of the order while filing appeal on grounds
specified in sub-sections (2) of Section 149 of 1988 Act. But
such application for permission has to be bona fide and filed
at the stage when the insured is required to lead his
evidence. So far as obtaining compensation by fraud by the
claimant is concerned, it is no longer res integra that fraud
vitiates the entire proceeding and in such cases it is open to
an insurer to apply to the Tribunal for rectification of
award.”
Keeping in view the above-mentioned judgments, the
appeal filed by the appellant i.e. IFFCO Tokio General Insurance
Company Limited, is hereby dismissed.
(RITU BAHRI)
JUDGE
14.12.2015
Print Page
Ltd vs. Nicolletta Rohtagi and others 2002(4) RCR (Civil) 464
wherein Hon'ble the Supreme Court had discussed in detail the
provisions of Section 149 of the Motor Vehicles Act and has held
that the Insurer is entitled to file an appeal only on the issues and
grounds prescribed under Section 149(2) or on satisfaction of the
conditions prescribed specified in Section 170 not to challenge
only quantum of compensation. Hon'ble the Supreme Court in
para Nos. 19, 20, 21, 22 & 31 observed as under:-
“19. In Shankarayya and Anr. v. United India
Insurance Co. Ltd. and Anr. [1998] 3 SCC 140, it
was held that an insurance company when impleaded
as a party by the Court can be permitted to contest the
proceedings on merits only if the conditions precedent
mentioned in Section 170 are found to be satisfied and
for that purpose the insurance company has to obtain
an order in writing from the Tribunal and which
should be a reasoned order by the Tribunal. Unless
this procedure is followed, the insurance company
cannot have a wider defence on merits than what is
available to it by way of statutory defences. In
absence of the existence of the conditions precedent
mentioned in Section 170, the insurance company was
not entitled to file an appeal on merits questioning the
quantum of compensation.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.3601 of 2015 (O&M)
Date of decision: 14.12.2015
IFFCO Tokio General Insurance Company Limited
Versus
Suman Rani and others
CORAM: HON’BLE MS. JUSTICE RITU BAHRI
Citation:2016 (4) ALLMR(JOURNAL) 4
This is an appeal filed by IFFCO Tokio General
Insurance Company Limited, against the award dated 02.12.2014,
passed by Motor Accident Claims Tribunal, SAS Nagar, Mohali,
vide which the claim petition was accepted and a sum of
Rs.27,19,600/- was allowed, on account of death of Virinder Singh
@ Varinder Singh, in a motor vehicular accident, which took place
on 14.08.2013.
FACTS NOT IN DISPUTE
Brief facts of the case are that on 14.08.2013, at about
06:30 a.m. Virinder Singh @ Varinder Singh was going from
village Dyalpura to Zirakpur for distribution of milk by driving his
motorcycle bearing No.PB-70-B-0637, at a slow speed and on left
side of the road. He was being followed by Sandeep Singh and
Gurdeep Singh on a separate motorcycle. When he reached near
Gurudwara Nabha Sahib, he stopped his motorcycle on katcha
portion on extreme left side of the road and gave milk to Sewadar
of Gurudwara Sahib. When he was just to move his motorcycle
towards Zirakpur, an offending eicher vehicle bearing No.PB-03-
T-0982, came at a fast speed from behind and struck against his
motorcycle. The offending eicher vehicle was being driven in a
rash and negligent manner and at a fast speed by respondent No.1-
Swaran Singh. Due to this accident, he fell on the road and
suffered serious injuries. He was shifted to Government Medical
College and Hospital, Sector-32, Chandigarh and there he died
during the treatment on 21.08.2013.
In this regard, FIR No.337 dated 21.08.2013, under
Sections 279, 304-A and 427 IPC, in respect of the accident in
question was got registered at Police Station Zirakpur.
Consequently, the claimants-respondents filed a claim
petition before the Tribunal.
COMPENSATION ASSESSED BY MACT
Before the Tribunal, Sandeep Singh (eye-witness)
appeared as PW-2 and tendered his affidavit Ex.PW-2/A to prove
the accident in question. Suman Rani also appeared as PW-1 and
tendered her affidavit Ex.PW-1/A to corroborate the testimony of
PW-2.
On the basis of evidence led by the parties, the
Tribunal has returned the finding on Issue No.1 in favour of the
claimants-appellants. The claim petition was accepted by the
Tribunal and a sum of Rs.27,19,600/- was awarded as
compensation on account of death of Virinder Singh @ Varinder
Singh along with future interest at the rate of 6% per annum from
the date of filing of the petition till its realization. The
compensation assessed by the Tribunal is reproduced as below :-
Sr. No. Heads Calculations
1. Annual income Rs.1,20,000/-
2. 50% addition towards future prospects Rs.1,20,000+Rs.60,000/-
=Rs.1,80,000/-
3. 1/4th deducted as personal expenses of
deceased
Rs. 1,80,000 – Rs.45,000/-
=Rs.1,35,000/-
4. Compensation after multiplier of 18 is
applied
Rs. 1,35,000 x 18
=Rs.24,30,000/-
5. Loss of consortium Rs.1,00,000/-
6. Loss of care and guidance to minor child Rs.1,00,000/-
7. Medical expenses Rs.19,526/-
8. Pain and suffering Rs.20,000/-
9. Loss to estate Rs.25,000/-
10. Funeral expenses Rs.25,000/-
11. Total compensation awarded Rs.27,19,526/- (rounded
off to Rs.27,19,600)
Feeling dissatisfied with the impugned award, the
appellant-Insurance Company has preferred the present appeal i.e.
FAO No.3601 of 2015 titled as “IFFCO Tokio General
Insurance Company Limited vs Suman Rani and others”.
I have heard learned counsel for the parties and
perused the case file.
The fact of accident is admitted and proved. It stands
established that the deceased-Virinder Singh @ Varinder Singh
died, as a result of the accident.
The finding that the offending vehicle was driven in a
rash and negligent manner has rightly been recorded by the
Tribunal and does not call for interference.
Reference, at this stage, can be made to a judgment of
Hon'ble the Supreme Court in a case of National Insurance Co.
Ltd vs. Nicolletta Rohtagi and others 2002(4) RCR (Civil) 464
wherein Hon'ble the Supreme Court had discussed in detail the
provisions of Section 149 of the Motor Vehicles Act and has held
that the Insurer is entitled to file an appeal only on the issues and
grounds prescribed under Section 149(2) or on satisfaction of the
conditions prescribed specified in Section 170 not to challenge
only quantum of compensation. Hon'ble the Supreme Court in
para Nos. 19, 20, 21, 22 & 31 observed as under:-
“19. In Shankarayya and Anr. v. United India
Insurance Co. Ltd. and Anr. [1998] 3 SCC 140, it
was held that an insurance company when impleaded
as a party by the Court can be permitted to contest the
proceedings on merits only if the conditions precedent
mentioned in Section 170 are found to be satisfied and
for that purpose the insurance company has to obtain
an order in writing from the Tribunal and which
should be a reasoned order by the Tribunal. Unless
this procedure is followed, the insurance company
cannot have a wider defence on merits than what is
available to it by way of statutory defences. In
absence of the existence of the conditions precedent
mentioned in Section 170, the insurance company was
not entitled to file an appeal on merits questioning the
quantum of compensation.
20. In Narender Kumar and Anr. v. Yarenissa and
Ors. [1998] 9 SCC 202, question arose whether there
can be a joint appeal by an insurer and owner of the
offending vehicle. It was held that even in the case of
a joint appeal by the insurer and the owner of an
offending vehicle, if an award has been made against
the tort feasors as well as the insurer, even though an
appeal filed by the insurer is not competent, it may
not be dismissed as such. The tort feasor can proceed
with the appeal after the cause title is suitably
amended by deleting the name of the insurer. In the
said case, it also held thus:
"The ground on which the insurer can defend
the action commenced against the tort
feasors 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 consistently taken the
view that the Insurance Company has no
right to prefer an appeal under Section 110-
D of the 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 or in the situation envisaged by subsection
2(A) of Section 110-C of the Act.”
21. In Chinnama George and Ors. v. N.K. Raju
and Anr., [2000] 4 SCC 130, it was held that if none
of the conditions as contained in sub-section (2) of
Section 149 exists for the insurer to avoid the liability,
the insurer is legally bound to satisfy the award and
the insurer cannot be a person aggrieved by the
award. In such a case, the insurer will be barred from
filing an appeal against the award of the Tribunal. It
was also held that the insurer cannot maintain a joint
appeal along with the owner or driver if defence of
any ground under Section 149(2) is not available to it.
22. In Rita Devi (Smt) and Ors. v. New India
Assurance Co. Ltd and Anr. [2000] 5 SCC 113, it
was held that the insurer having not obtained
permission under Section 170 of 1988 Act, is not
entitled to prefer any appeal to the High Court
against the award given by the Tribunal on merits.
31. We have already held that unless the conditions
precedent specified in Section 170 of 1988 Act is satisfied,
an insurance company has no right of appeal to challenge
the award on merits. However, in a situation where there is
a collusion between the claimants and the insured or the
insured does not contest the claim and, further, the tribunal
does not implead the insurance company to contest the
claim in such cases it is open to an insurer to seek
permission of the tribunal to contest the claim on the ground
available to the insured or to a person against whom a
claim has been made. If permission is granted and the
insurer is allowed to contest the claim on merits in that case
it is open to the insurer to file an appeal against an award
on merits, if aggrieved. In any case where an application for
permission is erroneously rejected the insurer can challenge
only that part of the order while filing appeal on grounds
specified in sub-sections (2) of Section 149 of 1988 Act. But
such application for permission has to be bona fide and filed
at the stage when the insured is required to lead his
evidence. So far as obtaining compensation by fraud by the
claimant is concerned, it is no longer res integra that fraud
vitiates the entire proceeding and in such cases it is open to
an insurer to apply to the Tribunal for rectification of
award.”
Keeping in view the above-mentioned judgments, the
appeal filed by the appellant i.e. IFFCO Tokio General Insurance
Company Limited, is hereby dismissed.
(RITU BAHRI)
JUDGE
14.12.2015
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