# Kumar Jain v. Archana Kumar and

- **Citation:** (2009) 1 ILRA 87
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-07
- **Case number:** First Appeal From Order No.397 of 2008
- **Bench:** V.M. Sahai, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-jain-v-archana-kumar-and-41373
- **Pages:** 7

## Headnote

Motor Vehicle Act 170-application to
contest-the
case
by
insurer-neither
allowed
nor
rejected-claim
petition
decided on merit-held-illegal-nullity-can
be
challenged
in
appeal-general
mandamus issued for strict compliance
of the order.

Held: Para 13 and 16

Therefore, we are of the considered
opinion
that
section
170
being
mandatory and award made by the
tribunal without deciding the application
would be a nullity and review application
or any other application with whatsoever
nomenclature, except for correction of
clerical or arithmetical errors, would not
be maintainable before the tribunal.

The question still is whether where no
order is passed by the tribunal on an
application under section 170, can it be
challenged in an appeal under section
173(1) of the Act? It is true that an
appeal under Section 173(1) of the Act
lies only against the award of the Motor
Accident Claims Tribunal but if the award
is a nullity it can be challenged in an
appeal under Section 173(1) of the Act
and the appeal would be maintainable.
The decision of the Apex Court in Bhanu
Kumar Jain vs. Archana Kumar and
another AIR 2005 SC 626 would apply
and the insurance company would not be
estopped from raising the question that
the award of the tribunal is a nullity in
an appeal under section 173 of the Act.
Case law discussed:
AIR 2002 SC 456, AIR 2006 SC 577, AIR 2006
SC 1255, AIR 2003 SC 1561, AIR 2003 SC
3127, 2007 (3) T.A.C. 456 (All), 2000 (2)
T.A.C. 613 (SC), 2003 (1) T.A.C. 492 (SC),
1992 Supp (1) SCC 191, AIR 2005 SC 626

## Text

1 All] National Insurance Co. Ltd. V. Smt. Jairani and others
87
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2009

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAN VIJAI SINGH, J.

First Appeal From Order No.397 of 2008

National Insurance Company Ltd.

...Appellant

Versus
Smt. Jairani and others ...Respondents

Counsel for the Appellant:
Sri Vinay Khare
Sri R.K. Porwal

Counsel for the Respondents:
Sri Ramesh Singh
Sri Rajiv Gupta
Sri Rakesh Dubey

Motor Vehicle Act 170-application to
contest-the
case
by
insurer-neither
allowed
nor
rejected-claim
petition
decided on merit-held-illegal-nullity-can
be
challenged
in
appeal-general
mandamus issued for strict compliance
of the order.

Held: Para 13 and 16

Therefore, we are of the considered
opinion
that
section
170
being
mandatory and award made by the
tribunal without deciding the application
would be a nullity and review application
or any other application with whatsoever
nomenclature, except for correction of
clerical or arithmetical errors, would not
be maintainable before the tribunal.

The question still is whether where no
order is passed by the tribunal on an
application under section 170, can it be
challenged in an appeal under section
173(1) of the Act? It is true that an
appeal under Section 173(1) of the Act
lies only against the award of the Motor
Accident Claims Tribunal but if the award
is a nullity it can be challenged in an
appeal under Section 173(1) of the Act
and the appeal would be maintainable.
The decision of the Apex Court in Bhanu
Kumar Jain vs. Archana Kumar and
another AIR 2005 SC 626 would apply
and the insurance company would not be
estopped from raising the question that
the award of the tribunal is a nullity in
an appeal under section 173 of the Act.
Case law discussed:
AIR 2002 SC 456, AIR 2006 SC 577, AIR 2006
SC 1255, AIR 2003 SC 1561, AIR 2003 SC
3127, 2007 (3) T.A.C. 456 (All), 2000 (2)
T.A.C. 613 (SC), 2003 (1) T.A.C. 492 (SC),
1992 Supp (1) SCC 191, AIR 2005 SC 626

(Delivered by Hon'ble V.M. Sahai, J.)

1. This appeal directed against the
award of the Motor Accident Claims
Tribunal (in brief the tribunal) gives rise
to an interesting question of law, whether
on an application filed under section 170
of the Motor Vehicles Act, 1988 (in brief
the Act) by the insurance company, if no
order is passed by the tribunal, what
would be its effect on the award; whether
the insurance company can be permitted
to challenge the award of the tribunal in
an appeal under section 173(1) if the
application under section 170 of the Act is
not decided?

2. The brief facts are that on
26.11.1999 Dr. Shiv Kumar was riding on
his Motor Cycle No.UP-78/G-6967. On
the pillion of the motor cycle Shiv
Shankar Verma was sitting. The Truck
No.UP-78/T-1896
dashed
the
motor
cycle. Due to injuries received in the
accident Dr. Shiv Kumar died on the spot.
The pillion rider Shiv Shankar Verma was
also seriously injured and he died at
Regency Hospital. The truck was owned
88 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
by Smt. Satyawati and Shailendra Kumar.
It was insured by the appellant.

3. The legal representatives of
Dr.Shiv Kumar filed M.A.C.P. No.142 of
2000
claiming
Rs.25,20,000/-
as
compensation under section 140 and 166
of the Act and Rs.30,000/- damages for
motor cycle. The owners and insurer both
filed written statements. The appellant
insurance company filed an application
under section 170 of the Act which
remained pending and no order was
passed on it by the tribunal.

4. The tribunal recorded a finding
that the accident took place due to rash
and negligent driving of the driver of the
truck. The motor cyclist Dr. Shiv Kumar
had a valid driving licence. The driving
licence of the truck driver Ashok Kumar
was valid. The claim petition was not bad
for non-joinder of necessary parties. The
claim petition was allowed by the tribunal
and compensation of Rs.7,37,500/- was
awarded to the claimants. The award of
the tribunal dated 6.10.2007 has been
challenged in this appeal.

5. We have heard Shri Vinay Khare,
learned counsel for the appellant and Shri
Ramesh Singh, learned counsel for the
claimant's respondent nos.1 to 3. Shri
Rajiv Gupta and Shri Rakesh Dubey
learned
counsel
for
the
owner's
respondent nos.4 and 5 have also been
heard. With the consent of the counsel for
the parties we have taken up this appeal
for final hearing. The filing of paper book
has been dispensed with.

6. The learned counsel for the
appellant has urged that the tribunal has
not passed any order on the application
under section 170 either allowing or
rejecting it which is a mandatory
requirement of law, therefore, even in
absence of availability of any grounds of
breach of insurance policy mentioned in
section 149(2) of the Act the appellant
can challenge the award of the tribunal in
an appeal under section 173 of the Act.
He urged that if the tribunal does not pass
any order on the application under section
170 then in law it would be deemed that
the application under section 170 has been
allowed. On the other hand the learned
counsel for the respondents have urged
that since no order had been passed on the
application filed under section 170 it
would be deemed that the application had
been rejected by the tribunal and the
appellant could maintain this appeal only
on the grounds provided under section
149(2) of the Act.

7. For appreciating the arguments of
learned counsel for the parties it is
necessary to extract section 170 of the
Motor Vehicles Act, 1988 as below,

"Section 170. Impleading insurer
in certain cases - Where in the course of
any inquiry, the Claims Tribunal is
satisfied that-
(a) there is collusion between the person
making the claim and the person against
whom the claim is made, or
(b) the person against whom the claim is
made has failed to contest the claim, it
may for reasons to be recorded 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, without prejudice to the
provisions contained in sub section (2) of
Section 149, the right to contest the claim
on all or any of the grounds that are
1 All] National Insurance Co. Ltd. V. Smt. Jairani and others
89
available to the person against whom the
claim has been made."

8. The title of the section is
innocuous. It provides for impleadment of
the insurer in certain cases. But in effect it
gives importance to the right of the
insurance company to contest the claim. It
is only under this provision that the
insurer can challenge the quantum of
compensation etc., if the conditions
mentioned in the section are satisfied.
Two contingencies are contemplated.
Sub-section (1) provides that if the
tribunal during inquiry finds collusion
between owner and the claimant, it would
direct insurer to be impleaded. Secondly,
if the proceedings are not been pursued by
the owner the insurer shall be permitted to
prosecute the matter and could raise all
the pleas which could be raised by the
insured. The rationale of the section is
that
the
ultimate
liability
to
pay
compensation etc., being of the insurer, it
must be permitted to safeguard its
interest,
not
only
on
the
grounds
mentioned in section 149(2) but on
merits. The importance of the right lies in
the bar in law for the insurer to move
further if the application of the insurer is
rejected. Prima facie the right of the
insurer under this section to move an
application under section 170 or being
impleaded as party does not appear to
have much significance. But once the
provisions of appeal etc., are examined
closely, it results in serious consequences
for the insurer, namely, if the application
of the insurer is rejected, it does not have
any remedy under the Act, either before
the tribunal or before the appellate court
to challenge it. The result of rejection of
the application is that the insurer is
precluded from challenging it under the
Act any further and the finding on
quantum of compensation etc., attains
finality. In such circumstances the section
has to be construed reasonably to advance
the
purpose
and
objective
of
its
enactment. This section has come up for
consideration before the Apex Court on
number of occasions. It is well settled by
the Apex Court that where an application
under section 170 of the Act had been
allowed by the tribunal, it is open to the
insurance company to challenge the
award not only on the grounds of breach
of the insurance policy mentioned in
section 149(2) of the Act, but to contest
the claim on merits, namely, quantum of
compensation and all or any other
grounds which were available to the
owner of the vehicle. A three judges
Division Bench in National Insurance
Co. Ltd., vs. Nicolletta Rohtagi and
others AIR 2002 SC 456 had held as
under:-

"...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 challenged 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..."

9. The decision in Nicolletta
Rohtagi's case had been followed in
National
Insurance
Co.
Ltd.,
vs.
90 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Mastan and another AIR 2006 SC 577,
Bijoy Kumar Dugar vs. Bidyadhar
Dutta and others AIR 2006 SC 1255,
Sadhana Lodh vs. National Insurance
Co. Ltd. and another AIR 2003 SC
1561 and United India Insurance Co.
Ltd. vs. Jyotsnaben Sudhirbhai Patel
and others AIR 2003 SC 3127. The
Apex Court in Jyotsnaben Sudhirbhai
Patel's case has laid emphasis that the
tribunal while deciding application under
section 170 of the Act must record
reasons. From these decisions the scope
of section 170 stands clearly explained.
The insurance company can file appeal
under section 173 (1) on all the grounds
which are available to the owner of the
vehicle and the grounds mentioned in
section 149(2) of the Act if the
application under section 170 had been
allowed by the tribunal. However, if the
application under section 170 had been
rejected by the tribunal then the insurance
company can maintain the appeal only on
the grounds available under section 149
(2) of the Act.

The question is whether on an
application filed under section 170 of the
Act by the insurance company, if no order
is passed by the tribunal, what would be
its effect on the award? An application
may be allowed or rejected by the
tribunal. If the application is allowed
there is no difficulty. If the application
has been rejected, the rejection order can
be challenged as held by a Division
Bench
of
this
Court
in
Oriental
Insurance Co. Ltd. vs. Smt. Manju and
others 2007 (3) T.A.C. 456 (All) under
the supervisory jurisdiction of this Court
under Article 227 of the Constitution of
India but not in an appeal under Section
173(1) of the Act.

10. But if no order is passed on the
application under section 170 of the Act
then the insurance company cannot
challenge it under Article 227 of the
Constitution of India. Is there any
remedy? The tribunal may sometimes by
mistake or oversight fail to pass an order
on the application under section 170 of
the Act and deliver the award. What
would be the effect of such mistake or
omission? Whether the omission to pass
an order on the application filed under
section 170 of the Act would result in
deemed allowing or rejecting it? In law an
act is deemed to be done if the law
provides so or it is ancillary to the main
order. For instance if an appeal or writ
petition is allowed or dismissed then the
applications ancillary to it are deemed to
have been allowed or dismissed. If no
order is passed by the tribunal allowing
the application it cannot be deemed to be
allowed for the simple reason that it could
be allowed only if the facts, namely,
collusion between the owner and claimant
were proved or the owner was not
contesting. In absence of this finding the
application under section 170 cannot be
allowed nor can it be deemed to be
allowed. In Jyotsnaben Sudhirbhai Patel's
case it was categorically held that since
the insurance company's right to contest
gets widened the recording of reasons and
passing of the order was necessary. In
other words, it cannot be implied or
deemed to be allowed. The principle of
deemed allow or reject may apply to
formal applications which do not effect
the merit of the matter. But the same
cannot be said of those applications which
stand on their own, namely, an application
for substitution of legal heirs, etc. If the
Court does not pass an order on a
substitution application and a decree is
passed in a suit or appeal then the decree
1 All] National Insurance Co. Ltd. V. Smt. Jairani and others
91
would be a nullity having being passed
against a dead person. An application
under section 170 of the Act, is not a
formal application. It confers a statutory
right on the insurance company. It
enlarges the scope of contest by the
insurance company. That is why the Apex
Court has held that recording of reasons is
mandatory. If no order is passed and
award is made, then it would in our
opinion, being in violation of mandatory
provisions of law, be rendered invalid and
would be nullity.

11. If an award is made without
deciding the application under section 170
of the Act it may be bad for omission to
deny the right to contest to the insurer
which is a vital right. Section 170 of the
Act confers a right on the insurance
company to file an application if the
conditions mentioned in the section are
satisfied. It also casts a duty on the
tribunal to decide it in accordance with
law. If the tribunal has failed to perform
its legal duty, the insurance company
cannot be deprived of its right to contest
on merits. In law, the insurance company
cannot apply for review of the award as
under the Act power of review had not
been conferred on the tribunal. The Uttar
Pradesh Motor Vehicle Rules, 1998 (in
brief the Rules) applies only some of the
provisions of the Code of Civil Procedure
1908 to the summary proceedings before
the Motor Accident Claims Tribunal. The
provisions of Rule 221 of the Rules 1998
is extracted below,

221. Code of Civil Procedure to
apply in certain cases- The following
provisions of the First Schedule to the
Code of Civil Procedure, 1908, shall, so
far as may be, apply to proceedings before
the Claims Tribunal, namely, Rules 9 to
13 and 15 to 30 of Order V; Order IX;
Rules 3 to 10 of Order XIII; Rules 2 to 21
of Order XVI; Order XVII; and Rules 1 to
3 of Order XXIII."

12. Order XLVII of the Code of
Civil Procedure 1908 has not been made
applicable to the proceedings before the
tribunal. The insurance company is
rendered remedy less if the application
under section 170 of the Act is not
decided. Since review application is not
maintainable no other application with
whatsoever
nomenclature
would
be
maintainable. By rule 221 of the rules
only limited provisions of the Code of
Civil Procedure, 1908 have been applied
to the proceedings before the tribunal.
Section 114 or Order 47 of the Code of
Civil Procedure had not been made
applicable to the proceedings before the
tribunal. It is well settled that the right of
appeal, revision or review are the
creations of statute and no litigant has got
an inherent right to prefer appeal, revision
or review except if wrangled through
fraud or misrepresentation [See United
India Insurance Co. Ltd. vs. Rajendra
Singh and others 2000 (2) T.A.C. 613
(SC) and Rajendra Kumar and others
vs. Rambhai and others 2003 (1) T.A.C.
492 (SC) ].

13. Therefore, we are of the
considered opinion that section 170 being
mandatory and award made by the
tribunal without deciding the application
would be a nullity and review application
or any other application with whatsoever
nomenclature, except for correction of
clerical or arithmetical errors, would not
be maintainable before the tribunal.

14. The next question is whether the
insurance company can be permitted to
92 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
challenge the award of the tribunal in an
appeal under section 173(1) if the
application under section 170 of the Act
was not decided? It is settled that right of
appeal is a statutory right. The three
Judges Division Benches of the Apex
Court in Nicolletta Rohtagi's case and
Sadhana Lodh's case has held that the
insurance company has a statutory right to
file an appeal under section 173 of the Act
on limited grounds available under
section 149(2). The Hon'ble Court further
held that if permission under section 170
is granted by the tribunal, then the
insurance company can contest the claim
on merits and question the quantum of
compensation.
The
Apex
Court
in
Jyotsnaben Sudhirbhai Patel's case while
taking the same view has added that
section 170 is an enabling provision in the
event of collusion between the claimant
and the owner or the tortfeasor, the
insurance company can be permitted by
the tribunal under section 170 to contest
the claim petition. A question arises as to
whether where the owner has filed his
written statement or has examined some
witness or cross-examined some witness,
can it be said that he is contesting the
claim on merits of the claim. The Apex
Court in Darshan Singh vs. Rampal
Singh and another 1992 Supp (1) SCC
191 had the occasion to consider the
meaning of the expression ''contest'. It
held as under:-

"34. The meaning of the word
''contest' is, according to Black's Law
Dictionary, to make defence to an adverse
claim in a court of law; to oppose, resist
or dispute; to strive to win or hold; to
controvert, litigate, call in question,
challenge,
to
defend.
The
contest
continues right up to the final decision or,
in other words the right to contest comes
to an end only when a final decision is
given one way or the other putting an end
to the litigation between the parties with
regard to the alienation. It is well settled
proposition of law that appeal is a
continuation of suit and any change in
law, which has taken place between the
date of decree and the decision of the
appeal, has to be taken into consideration.
When a suit filed by the reversioner is
dismissed and he files an appeal before
the appellate court also he is contesting
the alienation. If he does not contest the
alienation,
then
he
cannot
achieve
success. Therefore, when the axe has
fallen before the contest was over, let the
axe lie where it falls."

15. The contest of the claim on
merits by the owner must be such as if he
is trying to defeat the claim and is making
every possible effort to win the case. The
contest should be real and merely filing of
written statement or leading some oral
and documentary evidence or cross
examination of some witnesses, would not
be sufficient. The tribunal must come to a
definite conclusion that the owner of the
vehicle is making every possible effort to
succeed in getting the claim petition
dismissed. Only then the application of
the insurance company under section 170
of the Act can be rejected. In absence of
finding by the tribunal about genuineness
of contest by the owner supported by
cogent reasons the application under
section 170 of the Act filed by the
insurance
company
should
not
be
rejected.

16. The question still is whether
where no order is passed by the tribunal
on an application under section 170, can it
be challenged in an appeal under section
173(1) of the Act? It is true that an appeal
1 All] State of U.P. and others V. Ram Prakash Batham
93
under Section 173(1) of the Act lies only
against the award of the Motor Accident
Claims Tribunal but if the award is a
nullity it can be challenged in an appeal
under Section 173(1) of the Act and the
appeal would be maintainable. The
decision of the Apex Court in Bhanu
Kumar Jain vs. Archana Kumar and
another AIR 2005 SC 626 would apply
and the insurance company would not be
estopped from raising the question that
the award of the tribunal is a nullity in an
appeal under section 173 of the Act.

17. Before parting with the case we
may point out that Motor Accident Claims
Tribunal's in Uttar Pradesh are not
following the mandate of section 170 of
the Act and the law declared by the Apex
Court Jyotsnaben Sudhirbhai Patel's case.
While making the award the applications
under section 170 of the Act are not being
decided. Due to this approach of the
tribunals the insurance companies who
file an application under section 170 are
seriously prejudiced. Under the Act the
only right an insurance company has, is to
file an application under section 170 to
contest the claim on merits and also on
the grounds which are available to the
owner of the vehicle, if their application is
allowed. The presiding officers of the
Motor Accident Claims Tribunals are not
performing their judicial duty to decide
the application under section 170 first and
then pass an award within reasonable
time, so that if the insurance company is
desirous of challenging the order under
section 170 before a higher court, it may
have reasonable time. We do not propose
to direct any action at this stage.
However, we direct the Registrar General
to issue a circular forthwith to all Motor
Accident Claims Tribunal functioning in
State of Uttar Pradesh to pass appropriate
orders
by
giving
reasons
on
the
applications filed under section 170 of the
Motor Vehicles Act, 1988.

18. For the aforesaid reasons, we
allow this appeal. The award of the Motor
Accident
Claims
Tribunal
dated
6.10.2007 being nullity is set aside. The
claim petition is remanded back to the
Motor Accident Claims Tribunal with a
direction to decide the application filed by
the insurance company under section 170
of the Act in accordance with law and
thereafter decide M.A.C.P. No.142 of
2000 a fresh, only after a reasonable time.

Parties shall bear their own costs.
Appeal allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. (667) of 2008

State of U.P. and others ...Appellants

Versus
Ram Prakash Batham
...Opposite Party

Counsel for the Appellants:
Sri Pankaj Rai

Counsel for the Opposite Party:
Sri A.B. Singh

Constitution of India, Art. 226-Practic &
Procedure-grant of interim order-in the
garb of interim order final relief grantedheld-illegal-petitioner
challenging
the
retirement noticing challenging the age
of supranuation by interim order leaned
Single Judge allowed to continue till
achieving the age of 60 years-held
illegal.