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Oriental Fire and General Insurance Co. Ltd. Vs. Hanumakka and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKarnataka High Court
Decided On
Case NumberMiscellaneous First Appeal No. 504 of 1979
Judge
Reported in[1982]52CompCas634(Kar); 1981(2)KarLJ307
ActsMotor Vehicles Act, 1939 - Sections 96(2), 110C(2A) and 110D(1)
AppellantOriental Fire and General Insurance Co. Ltd.
RespondentHanumakka and ors.
Appellant AdvocateB.V. Acharya, Adv.
Respondent AdvocateKari Gowda, ;M.Y. Hanumanthappa and ;Suryanarayana Rao, Advs.
Excerpt:
.....distinguish its ultimate or incidental results or consequences to determine the character of the levy. writ petitions are allowed. - it reads :where in the course of any inquiry, the claims tribunal is satisfied that -(i) there is collusion between the person making the claim and the person against whom the claim is made, or (ii) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. even otherwise, even on merits, we are..........is necessary to reads s. 110c (2a) of the act. it reads : 'where in the course of any inquiry, the claims tribunal is satisfied that - (i) there is collusion between the person making the claim and the person against whom the claim is made, or (ii) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.' 5. this has to be read in the context of s. 96(2) of the act under which the right of the insurance company to contest.....
Judgment:

Sabhahit, J.

1. This appeal is by the insurance company and the grounds taken are that there was no actionable negligence on the part of the driver of the vehicle in question and that the quantum of compensation awarded is on the higher side.

2. A preliminary objection was taken before us by the learned counsel appearing for the claimants that the insurance company has no right of appeal on these grounds.

3. It is, therefore, necessary for us to decide the question of law : 'Whether the insurance company can take up the grounds not contemplated under s. 96(2) of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act'), when it is not so permitted specifically by an order of the Tribunal ?'

4. In order to appreciate the contention raised before us, it is necessary to reads s. 110C (2A) of the Act. It reads :

'Where in the course of any inquiry, the Claims Tribunal is satisfied that -

(i) there is collusion between the person making the claim and the person against whom the claim is made, or

(ii) the person against whom the claim is made has failed to contest the claim,

it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.'

5. This has to be read in the context of s. 96(2) of the Act under which the right of the insurance company to contest upon notice is confined to the grounds mentioned therein. That being so, the insurance company can contest the proceeding on other grounds only if it is impleaded as a party as contemplated under s. 110C (2A) of the Act, for reasons recorded by the tribunal in that behalf and not otherwise.

6. In the instant case, the learned counsel appearing for the appellant submitted that he did cross-examine the witnesses examined on behalf of the claimants and contest the case on all the grounds available to the owner and, hence, the permission of the Tribunal should be implied. He, however, fairly conceded that there was no order passed by the Tribunal as contemplated under s. 110C (2A) of the Act permitting the insurer to contest the claim on all the grounds. That being so, it only means that the insurer has done something going beyond its right and it is not supported on any legal basis. Hence, that part of the evidence, which is elicited in the cross-examination by the insurer going beyond its powers, has to be eschewed. Simply because an illegality is committed before the Tribunal, that cannot be made a ground to perpetuate it in the appeal. Hence, there is no substance in the contention raised before us that the appeal should be held tenable because the Tribunal, without noticing the section and the specific provision of law, connived at the cross-examination by the insurer on all the grounds and that cannot be taken as 'implicit permission'. Permission under the section should be in writing recording reasons for it. Hence, there is no scope to infer implicit permission in the section.

7. The learned counsel appearing for the appellant then invited our attention to s. 110D of the Act, which provides for appeals from awards passed by the tribunal and submitted that the insurer being aggrieved by the judgment and award can prefer an appeal under s. 110D of the Act.

8. Section 110D of the Act reads :

'(1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of award, prefer an appeal to the High Court ...'

9. It is no doubt true that a right of appeal is given to any person who is aggrieved. Here, the word 'aggrieved' has to be construed in the context of the right of the insurance company to contest, which is confined by the specific provision made in s. 96(2) of the Act. The two provisions of an Act have to be construed as to make them harmonious and consistent. When the word 'aggrieved' is used in s. 110D (1) of the Act, it means that the party should be legally aggrieved. The insurance company becomes legally aggrieved only when the findings are given against it on the grounds mentioned in s. 96(2) of the Act because they are the only grounds available to it for defence. It cannot be aggrieved on a finding of actionable negligence because the company has no right to contest in that behalf. It is only the owner of the driver who can challenge on that score.

10. We have already explained above that in certain circumstances the power of the insurance company to defend may be enlarged to cover all the grounds available to the owner or the driver. But such a permission is not granted to the insurer in the instant case. Therefore, we are of the considered view that, in view of the specific provisions of law, discussed above, the present appeal by the insurance company, on grounds not available to it, is untenable in law. The same is dismissed without more. Since, in the eye of law, the appeal itself is non-existent, the cross-objections would nor survive. Even otherwise, even on merits, we are satisfied that the compensation awarded in this case is just and reasonable. Hence, the cross-objections are also dismissed.

11. No costs.


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