The New India Assurance Company Ltd.,Cuddalore-607 001 v. D.Radhakrishnan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:21.07.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.449 of 2002The New India Assurance Company Ltd.,Cuddalore-607 001.... Appellant/2nd RespondentVs.1.D.Radhakrishnan2.K.Ramakrishnan... Respondents / Claimants& 1st Respondent.Prayer: Appeal filed under Section 173 of Motor Vehicles Act, againstthe Award and Decree dated 14.09.2001 made in M.A.C.T.O.P.No.444 of1998 on the file of Motor Accidents Claims Tribunal (Additional Sub-Judge), Cuddalore.For Appellant: Mr.C.Ramesh Babu For 1st Respondent: Ms.A.Sagaya Selvi For Mr.U.M.RavichandranJUDGMENTHeard the submissions made by Mr.C.Rameshbabu, learned counselrepresenting the appellant and Ms.A.Sagayaselvi, learned counselrepresenting the first respondent. The materials available on recordwere also perused.2.The New India Assurance Company Limited which figured as thesecond respondent before the Tribunal in M.A.C.T.O.P.No.444 of 1998is the appellant herein. The said MACTOP was filed by the firstrespondent herein claiming a sum of Rs.2,50,000/- as compensationfrom the appellant herein and the second respondent herein in theircapacities as insurer and owner of the offending vehiclerespectively. The second respondent namely, the owner of theoffending vehicle remained absent and was set exparte before theTribunal. The appellant herein namely, the insurer of the offendingvehicle alone contested the case. 3.After trial, the Tribunal allowed the claim in part holding theappellant and the second respondent herein jointly and severallyliable to pay compensation to the petitioner for the injuries https://hcservices.ecourts.gov.in/hcservices/ sustained by him in the accident in question that took place on22.09.1996. The Tribunal quantified the compensation at Rs.1,76,735/-and directed the same to be paid with an interest at the rate of 9%per annum from the date of petition till realisation. Proportionatecost was also awarded. Challenging the said award both on thequestion of liability and on the question of quantum, the appellantInsurance Company has brought forth this civil miscellaneous appealon various grounds set out in the memorandum of appeal.4.This appeal has been filed challenging the award on thequestion of quantum and disputing the liability of the insurer toshoulder the liability of the owner of the vehicle. Themaintainability of the appeal on the question of quantum ofcompensation is challenged on the ground that no permission underSection 170 of the Motor Vehicles Act was obtained. So far as thequestion of liability of the insurer under the policy to indemnifythe owner (insured), the maintainability of the appeal after thedeath of the injured without impleading his legal representatives ischallenged. Hence, the short point that arises for consideration is"Whether the appeal is maintainable?"5.There is no dispute regarding the fact that the petitionersustained injuries in an accident that took place on 22.09.1996 inwhich the vehicle belonging to the second respondent was involved andthat the said vehicle bearing Registration No.TN.31.A 0559 stoodinsured with the appellant as on the relevant date. However, theappellant Insurance Company took a stand that the insurance policyissued by it in respect of the said vehicle did not cover the riskinvolved to any passenger except the driver of the vehicle and thatsince the first respondent injured was travelling in the said vehiclesitting on the mudguard, the appellant Insurance Company was notobliged to shoulder the liability of the owner for the accidentcaused to injured. However, the Tribunal held that the policy coveredthe risk involved to the injured (first respondent) also and directedthe compensation quantified by the Tribunal to be paid by the ownerand the insurer jointly and severally. 6.Admittedly, the appellant Insurance Company did not get anypermission under Section 170 of the Motor Vehicles Act to contest theclaim on any one of or all the grounds of defence available to theowner of the vehicle in addition to the grounds of defence availableunder Section 149 of the Motor Vehicles Act. When the InsuranceCompany has not taken permission from the Tribunal to contest thecase on the grounds of defence available to the owner of theoffending vehicle in addition to the grounds of defence availableunder Section 149 of the Motor Vehicles Act, the Insurance Companycannot maintain an appeal against the award of the Tribunal on thequestion of negligence or quantum of compensation. The authority onthis point is the Judgment of a three Judge Bench of the Hon'bleSupreme Court in National Insurance Company Limited V. Nicolletta https://hcservices.ecourts.gov.in/hcservices/ Rohtagi and others reported in 2002 ACJ 1950. Since, admittedly theappellant Insurance Company did not get permission under Section 170of the Motor Vehicles Act before the Tribunal, the appeal preferredby the Insurance Company on quantum of compensation is notmaintainable. 7.So far as the challenge made to the award on the question ofliability of the insurer to shoulder the liability of the owner ofthe vehicle to pay compensation to the injured first respondent isconcerned, the developments subsequent to the filing of the appealhas made the appeal in respect of the above said aspect abate asagainst the second respondent herein. The second respondent hereinwas the owner of the offending vehicle. The challenge made to theappeal on the ground that the appellant Insurance Company cannot bemulcted with the liability to shoulder the liability of the owner ofthe tractor in terms of the contract of insurance cannot bemaintained in the absence of the owner of the vehicle, as he alone isthe person interested in resisting such a claim made by the InsuranceCompany. Since the second respondent, owner of the vehicle is nomore and the appellant Insurance Company has not taken any steps toimplead the legal representatives of the deceased second respondent,whatever be the reasons for the inability of the Insurance Company totake steps to implead the legal representatives of the deceasedsecond respondent, that part of the appeal cannot be maintained asagainst the deceased person.8.The learned counsel for the appellant also submitted thatdespite the earnest efforts made by the appellant, the particulars ofthe legal representatives of the deceased second respondent could notbe ascertained and that the appellant company did not have any hopeto find out the particulars and file a petition to implead the legalrepresentatives of the deceased second respondent.9.For all the reasons stated above, this Court comes to theconclusion that the appeal as such on both the grounds is notmaintainable and the same deserves to be dismissed. Accordingly, theCivil Miscellaneous Appeal is dismissed. However, there shall be noorder as to costs.Sd/-Deputy Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ SglToThe Additional Sub Judge,Motor Accidents Claims Tribunal,Cuddalore.Copy to:The Section Officer, VR Section,High Court, Madras.+ 1 CC To Mr.Um.Ravichandran, Advocate SR NO.39509+ 1 CC To Mr.C.Ramesh Babu, Advocate SR NO.39125C.M.A.No.449 of 2002CK(CO)SRA(08/08/2008)