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United India Fire and General Insurance Co. Ltd. Vs. Pogaku Parvathamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal against Order No. 509 of 1979
Judge
Reported in[1983]53CompCas866(AP)
ActsMotor Vehicles Act, 1939 - Sections 95, 95(2), 96, 96(2), 110C and 110D
AppellantUnited India Fire and General Insurance Co. Ltd.
RespondentPogaku Parvathamma and anr.
Appellant AdvocateM.P. Ugle, Adv.
Respondent AdvocateK.V. Reddy and ;T. Venkata Ramana, Advs.
Excerpt:
company - permitted plea - sections 95, 95 (2), 96, 96 (2), 110c and 110d of motor vehicles act, 1939 - respondent injured in accident and claimed compensation from bus owner and appellant - accidents claims tribunal made appellant and bus owner liable and awarded lesser amount than demanded - appellant in appeal contended that he is to be made liable for rs. 5000 only as prescribed in section 95 (2) - objections can be raised on grounds enumerated under section 96 (2) (a)(b)(c) - it is not open to appellant to urge any plea other than those enumerated and permitted - held, appeal dismissed. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in..........to any person caused by or arising out of the use (including the loading and unloading) of the motor vehicle; (ii) damage to property caused by the use (including the loading and/or unloading) of motor vehicle.' 3. the accidents claims tribunal, chittoor, by its order dated june 27, 1979, upheld the claim of the petitioner, but awarded only rs. 12,000 with the appropriate costs towards compensation payable by the owner of the bus (1st respondent) and the insurance company (2nd respondent). 4. against this order and the award of the accidents claims tribunal, the owner of the bus filed no appeal. but the insurance company, which had insure the bus not only against any loss or damage that might occur to it, but also against third-party risk, had preferred this appeal. to this appeal,.....
Judgment:

1. O.P. No. 19 of 1975, on the file of the Motor Accidents Claims Tribunal, Chitoor, was filed by one Pogaku Parvathamma, wife of Venkatrayappa, Madanapalli, Chittoor District, claiming compensation of an amount of Rs. 20,000 for the injuries caused to her by reason of an accident due to rash and negligent driving of a bus, APC 6311, near Sanatorium Church of Madanapalle on August 1, 1974.

2. The petitioner's case was that she was traveling in the aforesaid bus while going to her village Chinnathippa Samudram. While the bus was proceeding to her village, it turned turtle near the Sanitarium Church, Madanapalle, when the petitioner was injured all over her forehead. Her lower tooth in the lower jaw was broken and another had become loose. The petitioner issued a notice to the bus owner, K. Narayana Reddy, and to the United India Fire and general Insurance company Ltd., Madras, on August 23, 1974, claiming the aforesaid compensation. Having received no satisfactory reply, she filed the aforesaid O.P. against the two respondents. It may be mentioned that the above mentioned bus was insured with the United India Fire and General Insurance Co., under an insurance policy, Ex. B-3, dated dated November 19, 1973. The policy covered the loss to the bus and also what is know as 'third-party risk'. So far as the loss to the bus was concerned, liability of the insurer was limited to the sum of Rs. 50,000. So far as the third-party risk was concerned, no specified amount was mentioned. But it was stated :

'Subject to the limits of liability, the company will indemnify the insured against the sums including claimant's cost and expenses which the insured shall become liable to pay in respect of :

(i) death or bodily injury to any person caused by or arising out of the use (including the loading and unloading) of the motor vehicle;

(ii) damage to property caused by the use (including the loading and/or unloading) of motor vehicle.'

3. The Accidents Claims Tribunal, Chittoor, by its order dated June 27, 1979, upheld the claim of the petitioner, but awarded only Rs. 12,000 with the appropriate costs towards compensation payable by the owner of the bus (1st respondent) and the insurance company (2nd respondent).

4. Against this order and the award of the Accidents Claims Tribunal, the owner of the bus filed no appeal. But the insurance company, which had insure the bus not only against any loss or damage that might occur to it, but also against third-party risk, had preferred this appeal. To this appeal, both the victims of the accident as well as the owner of the bus have been made parties.

5. Mr. Ugle, the learned counsel for the appellant, argued that under s. 95(4) of the Motor Vehicle Act (for short, the 'Act'), the liability of the insured is limited only to Rs. 5,000 for each individual passenger traveling in any vehicle other than a motor cab and that thereafter the lower court's direction that the sum of Rs. 12,000 awarded as compensation should be recovered both from the owner the bus as well as from the insurer is clearly erroneous and contrary to the statutory provisions. In other words, Mr. Ugle argued that his client should have been made liable only to the extent of Rs. 5,000 as prescribed by s. 95(2) of the Act and beyond the amount liability to pay compensation amount rests solely with the owner of the bus, who is the only other respondent. In view of the judgment of the Supreme court in Sheikhupura Transport Co. v. N. I. T. Ins. Co., : AIR1971SC1624 , I think this argument of the learned counsel or the appellant must be accepted, ruling out any other interpretation, which appears to be not wholly impossible on the somewhat involved language of s. 95 of the Act.

6. But the question is whether relief can be granted in this insurer's appeal Section 94 of the Act, which occurs in Chapter VIII of the Act and deals with insurance of motor vehicles against third party risks, makes it obligatory for any person who uses the motor vehicle in a public place to take a policy of insurance complying with the requirements of the Chapter. Section 95 of the Act specifies the requirements of policy and also limits the liability of the insurance company called 'insurer'. This section requires that the insurer under the aforesaid chapter of the Act must insure the person or class of persons specified in the policy against any liability arising out of death or bodily injury by the use of the vehicle. But s. 95(2)(b)(ii)(4) of the Act limits the liability of the insurer to each individual passenger using the motor vehicle to a sum of Rs. 5,000, in any case, where the motor vehicle used is other than a motor cab. In the aforementioned judgment of the Supreme Court arising under the provisions of the unamended s. 95 of the Act, the learned judges of the Supreme Court observed that the statutory liability of the insurer to indemnify the insured is restricted by s. 95(2) of the Act as it stood then. This judgment of the Supreme Court was followed by several other High Courts. It is, therefore, clear that the Tribunal below had erred in awarding a joint and several decree executable both against the owner of the bus and the insurer in a sum exceeding Rs. 5,000. The insurance policy which I have read above clearly limited the ability of the insurer to the limits of liability, meaning thereby the quantum of liability as fixed by s. 95(2)(b)(ii)(4) of the Act. In view of that limitation contained in the policy of insurance which is in harmony and is in conformity with the requirements of the Act and the limits fixed in s. 95 of the Act, I cannot but hold that the order of the Accidents Claims Tribunal making also the insurer liable in a sum of Rs. 12,000 is erroneous. The Tribunal ought to have limited liability of the insurer only to a sum of Rs. 5,000. On that basis, I would have straightway allowed this appeal. But there appears to be unfortunately for the appellant insurmountable difficulties in the way of allowing this appeal. The Motor Vehicle Act deals with the liability of the owners of the motor vehicles and sets up special Tribunals for quantifying the liability of such owners arising out of accidents which are nowadays too many and too frequent causing loss of limb and life to the innocent general public. In order to facilitate easy collection of moneys of compensation awarded against the owners of motor vehicles, the Act not only obligates the owners and the users of the motor vehicles to take insurance policy covering what is known as third party risk; but also makes any decree or award passed by the aforesaid Tribunals executable against such insurance companies called insurer. Under s. 96(1) of the Act, the law lays down that the insurer should satisfy judgments of compensation passed by the insurer even though the insurer was not directly liable to the injured person. But the Act limits, as noted above, the liability of the insurer. In other words, the scheme of the Act is to make the insured primarily liable to an unlimited extent and make the insurer liable only to a limited extent as specified in the chapter VIII. Proceeding on that basis, the provisions of that Chapter, more particularly s. 96(2) and s. 110C of the Act, make the presence of the insurer before the Tribunal for adjudication of claims not absolutely necessary, but only contingent upon the happening of certain events. Under s. 96(2) of the Act, the claimant need not make the insurance company a party-respondent to his claim. But he must before or after the commencement of the proceedings claiming compensation in the Tribunal notify the insurer through the court of the fact of bringing of those proceedings. It is left to the insurer either to implead himself as the party-respondent and contest the proceedings or not. Even if the insurer on the receipt of a notice under s. 96(2) of the Act chooses to contest the claim, he is not free to raise all objections. Statute limits his liberty to contest. He is entitled only to raise such objections to the claim as are specially enumerated in s. 96(2)(a), (b), (c) of the Act. They read as follows :

'(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or the either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of s. 105; or

(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely :-

(i) a condition excluding the use of the vehicle -

(a) for hire or reward, where the vehicle is on the date of contract of insurance a vehicle not covered by a permit to ply for hire or reward; or

(b) for organised racing and speed testing; or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle; or

(d) without side-car being attached, where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or

(c) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of the fact which was false in some material particular.'

7. It is only under section s. 110C of the Act that the insurer is permitted to raise all objections to the claim of the motor vehicle accident victim. But under section s. 110C of the Act of the insurer cannot and would not become a contesting party to the claim normally. The insurer would become entitled to implead himself as a party-respondent and oppose the claim only where the was satisfied that there was collusion between the claimant and the person against whom the claim was made or the person against whom the claim had been made had failed to contest the claim. In the absence of collusion between the claimant and the insured and negligence or indifference on the part of the insured in contesting the claim, the insurer cannot implead himself as a party. It follows from the above that the claimant is under no obligation to make on his own the insurer a party-respondent to his claim and it is wholly for the insurer to implead himself as a party-respondent either under s. 110C of the Act or under s. 96(2) of the Act. If the insurer impleads himself under s. 110C of the Act, it would be open to the insurer to raise all objections to the granting of the claim which would have been raised by the insured. But, in this case, as there was no finding by they that the insured was colluding with the claimant or that there was any negligence or indifference on the part of the insured and the insurer was impleaded from the commencement of the proceedings, the insurance company cannot avail itself of the provisions of s. 110C of the Act. The only other section of which it can take benefit of is s. 96(2) of the Act. As we have already noted that under s. 96(2) of the Act, it is not open to the insurance company to oppose the claim on all and every ground, it can only raise such of those objections which are enumerated in s. 96(2)(a), (b) and (c) of the Act. The question then arises whether the present argument of the insurer falls under s. 96 of the Act. In this case, the argument of the insurance company is that the Accidents Claims Tribunal ought to have saddled the insurance company with any liability exceeding Rs. 5,000 fixed by s. 95(2)(b)(ii)(4) of the Act. But the question is whether this argument is open to the insurance company to be raised. Mr. Ugle's contention is that it should be open to the insurance company to raise this argument, because in doing so it is doing no more than limiting its claim to a limit which is statutorily fixed by s. 95 of the Act, and that it would be wholly unjust to allow the award of the to stand in excess of Rs. 5,000. Although I have great sympathy for this argument, however, considering it as a question of law, I find it exceedingly difficult to except it and grant any relief to the appellant. So long as the appellant's case does not come under s. 110C of the Act, the limitations contained in s. 96(2) of the act would operate to restrain the insurance company and limit its defence before the Tribunal and appeal in this court to the statutory grounds mentioned in that section. It is admitted by Mr. Ugle and, in any case, I so find that the argument that his client was liable to pay only Rs. 5,000 is not an argument which can be described as falling under s. 96(2) of the Act. I am, therefore, unable to uphold the contention of Mr. Ugle that it is still open for the appellant to urge that the award should be limited to an extent of Rs. 5,000 only. These considerations would apply with peculiar force to an appeal. It is well-known that an appeal, unlike a suit, is not a right at common law. It is wholly a creature of the statute (see colonial sugar refining company v. Irving [1905] AC 369). It is open for the legislature to say whether there should or should not be an appeal. It is equally open to the Legislature to say whether on what points of law and to what extent an appeal should be allowed from a judgment of a lower court or Tribunal. The well-known example of s. 100, C.P.C., hitherto limiting the right of a second appeal only to questions of law and now to substantial questions of law is a clear case in point. In other words, appellability can be restricted and limited both qualitatively and quantitatively. Under s. 110D of the Act, any person aggrieved by an award of a Claims Tribunal is given the right to file an appeal to the high court within 90 days. But that provision must be read conjunctively with ss. 96 and 110C of the Act. As we have already noted, the statute does not recognise in its fullest extent that the insurer can be a person aggrieved in all cases. If the insurer could not raise his claim that no decree should be passed against him exceeding the statutory limit fixed under s. 95(2) of the Act before the Claims Tribunal, it would not be logical to contend that it could raise this argument in appeal. The limits of s. 92(2) of the Act are long enough to apply to the appeal. I am, therefore, clearly of the opinion that it is not open to the insurance company to raise this plain this appeal. That there is no provision forbidding the insurer from raising such plea in this appeal is hardly relevant. The language used by the Act in s. 96(2) limits its appeal only to those enumerated grounds. The appeal being a creature of the statute, what the appellant requires is a permission of law to raise a particular plea. In this case under s. 96(2) of the Act the pleas available are all enumerated. It follows that it shall not be open to the appellant to urge any plea other than those that are enumerated and permitted.

8. Mr. Ugle has relied upon the judgment of a division bench of this court consisting of Mr. Gopal Rao Ekbote and Mr. Justice Ramachandrarao in Hindustan Ideal Insurance Co. Ltd. v. Pokanti Ankaiah [1972] 1 APLJ 47 to contend that it shall be open for his clients to raise this plea. There is absolutely no doubt that the case fully supports the contention of Mr. Ugle. But, with the greatest respect to the learned judges who decided that case, I am unable to agree with that judgment for several reasons. Firstly, because the reasoning does not appear to me to be correct in principle, which is, that whatever is not permitted to be appealed against must be taken to have been forbidden; secondly, because the judgment does not take full note of the concluding words of s. 96(2) of the Act, 'to defend the action on any of the following grounds' and also of 96(6) of the Act. Finally, because that judgment, in my humble opinion, does not appear to be consistent with the principles laid down by the Supreme Court in B.I.G. Insurance Co. v. Itbar Singh : [1960]1SCR168 . The learned judges of the Supreme Court in the above case clearly held (p. 1334) :

'It would follow that an insurer is entitled to defend on any of the grounds enumerated and no others. If it were not so, then of course no grounds need have been enumerated. When the grounds of defence have been specified, they cannot be added to.'

9. The above judgment of the learned judges reported in Hindustan Ideal Ins. Co. Ltd. v. P. Ankaiah [1972] APLJ 47 was considered by a division bench of this court consisting of Madhava Reddy and Jayachandra Reddy JJ. in R. Chinna Rao v. Reddi Lorudu, : AIR1980AP279 . The learned judges held that the earlier bench decision was not correctly decided. With respect I follow and accordingly hold that it shall not be open to the appellant to raise this contention in this appeal.

10. Mr. Ugle also strongly relied upon a decision of a Division Bench of this court consisting of Ramachandra Raju and Jeevan Reddy JJ. in N. Vengamma v. K. Duravasulu, AIR 1978 AP 90. That was a case where the question considered whether the limits of the insurer's liability to third-party risks was governed by the provisions of the Act or the terms of the contract. The learned judges held it was governed only by the terms of the statute and not by the terms of the contract. This case was referred to with approval by a Full Bench of the Karnataka High Court in S. Sanjiva Shetty v. Anantha : AIR1979Kant1 , on the question of its retrospectivity. But, neither of these cases considered the present question whether s. 96(2) of the Act limits the defences open to an insurer to hose grounds specified and enumerated in that section. These cases are, therefore, of no relevance to the present case. So is the judgment of a Division Bench of the Madras High Court in United India Fire & General Insurance Co. Ltd. v. Union of India [1979] 1 MLJ 487.

11. For the aforesaid reasons, with regret but without hesitation, I dismiss this appeal. In the circumstances, without costs.


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