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Hemchandra Choudhury and ors. Vs. Dr. Harmohan Pathak - Court Judgment

LegalCrystal Citation
Subject;Motor Vehicles
CourtGuwahati High Court
Decided On
Case NumberM.A. (F) No. 20 of 1976
Judge
ActsMotor Vehicles Act, 1939 - Sections 96(2), 110C(2A) and 110D
AppellantHemchandra Choudhury and ors.
RespondentDr. Harmohan Pathak
Appellant AdvocateS.N. Bhuyan and S.N. Chetia, Advs.
Respondent AdvocateN.C. Das, Adv.
Excerpt:
- - on being satisfied that the accident was due to the negligence on the part of the driver, a sum of rs. in the calcutta case as well, the owner was a co-appellant though no liability for paying the compensation had been placed upon him, as in the present case. in this connection, it would be apposite to refer to the provisions of section 110c(2a) as inserted in the act in 1969 by which a right has been conferred on the insurer to contest the claim on all or any of the grounds available to the person against whom the claim has been made, in case the tribunal is satisfied that there is a collusion between the person making the claim and the person against whom the claim is made, or the person against whom the claim is made has failed to contest the claim......none the less prefer the appeal because it is the negligence of his driver which has led to the award of compensation and which has been made payable by the insurer because of the provisions in sections 95 and 96 of the act. 5. we have, therefore, to see as to what reasonable meaning can be ascribed to the expressions 'person aggrieved' and 'award '. as to the second expression, we may refer to section 110b which deals with an award of the claims tribunal and states that the tribunal may make an award determining the amount of compensation which appears to be just and specify the person or persons to whom compensation shall be made and who shall pay the same. it is apparent that the word 'award' will include final decisions of claims tribunal on the above matters. we do not think that.....
Judgment:

Hansaria, J.

1. An award was passed in a motor accident claims case in favour of the claimant who was injured in an accident which had taken place on November 14, 1968, at about 2.15 p.m. in the City of Gauhati itself. The claimant is a medical practitioner and his case is that he had sustained head injury with fractures in different parts of the body and had undergone pain and suffering. On being satisfied that the accident was due to the negligence on the part of the driver, a sum of Rs. 20,000 has been awarded in favour of the claimant which, as per the award, 'will be realised from the insurer, the opposite party No. 3, M/s. Phoneix Assurance Company Limited, Gauhati, or other authority which has taken the responsibility of the business of the said company'. This appeal has been preferred, jointly by the owner of the vehicle, the driver of the same and the insurance company.

2. Sri Das for the respondent has raised a preliminary objection regarding the maintainability of the appeal inasmuch as the owner and the driver could not have come up to this court. Under Section 110D of the Motor Vehicles Act, 1939 (the Act, for short), an appeal can be preferred by 'any person aggrieved by an award of a Claims Tribunal'. We have, therefore, to decide whether the owner and the driver can be regarded as persons aggrieved. This aspect is important not only for deciding the question of maintainability, but also to see if the insurer (in case it alone could file the appeal) could agitate before us the question of negligence or quantum of compensation.

3. So far as the second aspect is concerned, Sri Bhuyan, the learned counsel for the appellants, has fairly admitted that an insurer cannot travel in his defence beyond what has been prescribed in Section 96(2) of the Act. This view was first expressed by the Apex Court in British India General Insurance Company Limited v. Captain Itbar Singh, [1959] 29 Comp Cas (Ins) 60; AIR 1959 SC 1331. There is no dispute before us that what is stated in Section 96(2) would apply in an appeal also. Shri Bhuyan, however, submits that as the owner and the driver, more particularly the owner, have joined hands in preferring the appeal, we can examine the question of negligence and quantum also.

4. It has, therefore, to be seen whether the owner could have preferred the present appeal. As alluded, Section 110D has conferred the right of appeal on a 'person aggrieved' by the award. The appeal being a creature of a statute, this right can flow only from what has been laid down in the aforesaid section. Though no compensation has been made payable by the owner, Sri Bhuyan contends that the owner could none the less prefer the appeal because it is the negligence of his driver which has led to the award of compensation and which has been made payable by the insurer because of the provisions in Sections 95 and 96 of the Act.

5. We have, therefore, to see as to what reasonable meaning can be ascribed to the expressions 'person aggrieved' and 'award '. As to the second expression, we may refer to Section 110B which deals with an award of the Claims Tribunal and states that the Tribunal may make an award determining the amount of compensation which appears to be just and specify the person or persons to whom compensation shall be made and who shall pay the same. It is apparent that the word 'award' will include final decisions of Claims Tribunal on the above matters. We do not think that a finding on an issue necessary to arrive at the final decision as aforesaid could be regarded as an award.

6. As to the expression 'person aggrieved', Sri Das for the respondent has referred to Kantilal and Brothers v. Ramarani Debi, AIR 1979 Cal 152. In finding out the meaning of this phrase, the Bench referred to Adi Pherozshah Gandhi v. H.M. Seervai, AIR 1971 SC 385, and Bar Council of Maharashtra v. M.V. Dabolkar, AIR 1975 SC 2092, wherein the Supreme Court had examined the width and purport of this expression; and has held that the grievance for which a person may appeal must be a genuine and real grievance affecting prejudicially his interest. In the Calcutta case as well, the owner was a co-appellant though no liability for paying the compensation had been placed upon him, as in the present case. On these facts, it was observed by the Division Bench that there was no 'denial or deprivation of legal right or financial interests nor any order affecting prejudicially the interests of the owner' of the vehicle. So it was held there was no legal or personal injury to the owner, and, as such, the appeal was found incompetent. With respect, we agree with this view which is founded on the pronouncements of the highest court of the land which we do not propose to recapitulate as this has been admirably done in Kantilal's case, AIR 1979 Cal 152. We may add that any other view may even frustrate some provisions of the Act, as by bringing an owner as co-appellant, the insurer, the real aggrieved person, could even get the award challenged on grounds not otherwise available to it. It is settled law that while interpreting or giving meaning to a particular expression in a section, provisions of other sections have also to be kept in mind as all the parts of a statute must be construed harmoniously.

7. Shri Bhuyan, however, contends that under the terms of the policy, an insured owes a duty to the insurer to help the latter in such cases, and it is this duty which has led the owner to give company to the insurer. We do not think if such a term in the policy, even if true, on which we do not express any opinion as the policy is not before us, can scuttle the provision of law enshrined in Section 96(2) of the Act. In this connection, it would be apposite to refer to the provisions of Section 110C(2A) as inserted in the Act in 1969 by which a right has been conferred on the insurer to contest the claim on all or any of the grounds available to the person against whom the claim has been made, in case the Tribunal is satisfied that there is a collusion between the person making the claim and the person against whom the claim is made, or the person against whom the claim is made has failed to contest the claim. The present is definitely not a case of this nature inasmuch as the owner had duly contested the claim, and far from there being any collusion of the above type, he has joined hands with the insurer even in this appeal.

8. In the aforesaid view of the matter, we are of the view that the owner and the driver could not have preferred this appeal, and the approach to this court should be confined to the insurer. In such a situation, we cannot examine the issues relating to negligence and quantum, on which alone Shri Bhuyan wants us to address as these aspects are not covered by Section 96(2) of the Act.

9. The result is that the appeal is dismissed, the insurer should pay the remaining amount of Rs. 10,000 (out of Rs. 20,000 a sum of Rs. 10,000 is said to have been paid) along with interest and costs awarded within the period of 2 months from today, failing which the interest would run at the rate of 12% per annum after two months.


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