# National Insurance Co.Ltd v. Smt. Guddi Devi and others

- **Citation:** (2009) 3 ILRA 1033
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-14
- **Case number:** First Appeal From Order No. 3049 of 2009
- **Bench:** S.P. Mehrotra, Rajesh Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-v-smt-guddi-devi-and-others-41457
- **Pages:** 4

## Headnote

Motor Vehicle Act, 1988-Section-170,
readwith
149-Appeal
by
insurance
Company-Challenging the quantum of
award-application
by
insurance
Company already rejected by claim
tribunal-held-quantum of compensation
can not be questioned by insurance
company.

Held: Para 15
In our opinion, as the application of the
Appellant-Insurance
Company
under
Section 170 of the Motor Vehicles
Act,1988 was rejected by the Tribunal, it
is not open to the Appellant-Insurance
Company
to
raise
the
question
of
quantum of compensation, awarded by
the Tribunal in the impugned award. The
pleas raised in this regard by Sri Saral
Srivastava,
learned
counsel
for
the
Appellant-Insurance Company cannot,
therefore be considered.

## Text

3 All] National Insurance Co.Ltd. V. Smt. Guddi Devi and others
1033
Insurance Company/ Appellant to contest
the same on the grounds legally open to it.

22. The amount of 25,000/-
deposited in this Court while filing the
present Appeal will be remitted to the
Tribunal for being adjusted towards the
amount to be deposited by the Insurance
Company/ Appellant, as per the directions
given in the impugned award.

23. Subject to the aforesaid
observations, the Appeal filed by the
Insurance
Company/Appellant
is
dismissed. However, on the facts and in
the circumstances of the case, there will
be no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2009

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE RAJESH CHANDRA, J.

First Appeal From Order No. 3049 of 2009

National Insurance Company Ltd.

 ...Petitioner
Versus
Smt. Guddi Devi & others ...Respondent

Counsel for the Petitioner:
Sri Saral Srivastava

Counsel for the Respondents:

Motor Vehicle Act, 1988-Section-170,
readwith
149-Appeal
by
insurance
Company-Challenging the quantum of
award-application
by
insurance
Company already rejected by claim
tribunal-held-quantum of compensation
can not be questioned by insurance
company.

Held: Para 15
In our opinion, as the application of the
Appellant-Insurance
Company
under
Section 170 of the Motor Vehicles
Act,1988 was rejected by the Tribunal, it
is not open to the Appellant-Insurance
Company
to
raise
the
question
of
quantum of compensation, awarded by
the Tribunal in the impugned award. The
pleas raised in this regard by Sri Saral
Srivastava,
learned
counsel
for
the
Appellant-Insurance Company cannot,
therefore be considered.

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. The present appeal has been filed
against the judgment and order /award
dated 25.7.2009 passed by the Motor
Accidents Claims Tribunal, Mainpuri in
Claim Petition No. 318 of 2006, filed by
the claimant-respondent nos. 1 to 7 under
Section 166 of the Motor Vehicles Act,
1988 on account of the death of Ram
Prakash in an accident which took place
at about 5.45 PM on 14.5.2006.

2. It was, inter-alia, averred in the
Claim Petition that on 14.5.2006 at about
5.45 PM, the deceased Ram Prakash with
his wife Smt. Guddi Devi, Balister Singh,
Prem Chandra, Raj Kishore and others
while returning after attending a marriage
ceremony in village Dalelpur at the place
of the sister of the deceased,was waiting
for vehicle on the road -side on GT Road,
Kurawali-Etah Marg, a Mini Truck Tata
407 DL-1LG 391,which was coming from
the direction of Etah and was being driven
by the Driver rashly and negligently, hit
the said Ram Prakash, resulting in his
death on the spot. The Driver ran away
with the said Mini Truck, i.e., the vehicle
in question from the spot. The accident
was witnessed by Smt.Guddi Devi and
others. The First Information Report was
lodged in regard to the accident, which
was registered as Case Crime No. 174 of
1034 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
2006 under Sections 279, 304A, Indian
Penal Code in Police Station Kurawali,
District Mainpuri. The deceased was aged
34 years at the time of his death and was a
healthy person. The deceased was an
agriculturist and was carrying on the
business
of
sale
and
purchase
of
buffaloes, and his monthly income was
not less than 7,000/- rupees. An amount
of Rs.24,25,000/- with interest @ 12 %
per annum was claimed as compensation
in the Claim Petition.

3. Joint Written Statement was filed
by respondent nos. 8 and 10. The
Appellant- Insurance Company also filed
its Written Statement.

The Tribunal framed four issues.

Issue no.1 was as to whether the
Driver of the aforesaid vehicle in question
while driving the same in rash and
negligent manner, hit the said Ram
Prakash resulting in the death of the said
Ram Prakash. The Tribunal decided the
said issue in the affirmative in favour of
the claimant-respondent nos. 1 to 7.

Issue no.2 was as to whether the
vehicle in question was insured with the
Appellant-Insurance Company at the time
of the accident. The Tribunal held that the
vehicle in question was insured with the
Appellant-Insurance Company at the time
of the accident, and decided Issue no.2
accordingly.

Issue no. 3 was as to whether the
Driver of the vehicle in question was
having a valid and effective licence at the
time of the accident. The Tribunal held
that the Driver of the vehicle in question
was having a valid and effective licence at
the time of the accident, and decided Issue
no.3 accordingly.

Issue no.4 was regarding the relief, if
any, to which the claimant-respondent
nos.1 to 7 were entitled. The Tribunal
held that the claimant-respondent nos. 1
to 7 were entitled to compensation
amounting to Rs.4,89,500/- with interest
@ 6% per annum.

4.

The
Appellant-
Insurance
Company has filed the present appeal
against the said award.

5. We have heard Sri Saral
Srivastava,
learned
counsel
for
the
appellant and perused the record filed
with the appeal.

6. From the perusal of the record, it
is evident that an application under
Section 170 of the Motor Vehicles Act,
1988 was filed on behalf of the AppellantInsurance Company before the Tribunal.
However, by the order dated 7.3.2009, the
Tribunal rejected the said application.

7. Section 170 of the Motor Vehicles
Act, 1988 lays down as under:-

"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
3 All] National Insurance Co.Ltd. V. Smt. Guddi Devi and others
1035
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
available to the person against whom the
claim has been made."
Sub-section (2) of Section 149 of the
Motor Vehicles Act, 1988 referred to in
Section 170 of the said Act is reproduced
below:-
"
(1)...............................................................
.......................
(2) No sum shall be payable by an insurer
under sub-section (1) in respect of any
judgment or award unless, before the
commencement of the proceedings in
which the judgment or award is given the
insurer had notice through the Court or,
as the case may be, the Claims Tribunal
of the bringing of the proceedings, or in
respect of such judgment or award so
long as execution is stayed thereon
pending an appeal; and an insurer to
whom notice of the bringing of any such
proceedings is so given shall be entitled
to be made a party thereto and to defend
the action on any of the following
grounds, namely:-
(a) 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 the contract
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
(b) 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 fact which was false in some material
particular.
(3) to (7.....................................".

8. Reading Sections 170 and 149(2)
of the Motor Vehicles Act, 1988 together,
it is evident that in case the Tribunal
grants permission to the insurer under
Section 170, the insurer will get right to
contest the Claim Petition on all or any of
the grounds that are available to the
person against whom the claim has been
made. However, if such permission is not
granted by the Tribunal, then the insurer
will be entitled to contest the Claim
Petition on the limited grounds mentioned
in sub-section (2) of Section 149 of the
Motor Vehicles Act, 1988.

9. It follows, therefore, that in case
an appeal is filed by the insurer against an
award in a case where its application
under Section 170 of the Motor Vehicles
Act, 1988 was rejected by the Tribunal, it
(insurer) will be able to challenge the
award only on the limited grounds
mentioned in sub-section (2) of Section
149 of the said Act.
1036 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
10. As noted above, in the present
case, the Tribunal rejected the application
of the Insurance Company for permission
under Section 170 of the Motor Vehicles
Act, 1988.

11. In view of the rejection of the
said application under Section 170 of the
aforesaid Act, it is evident that the
Appellant-Insurance
Company
can
challenge the impugned award only on the
grounds mentioned in sub-section (2) of
Section 149 of the Motor Vehicles Act,
1988. Such grounds are evidently in
respect of Issue Nos.2 and 3.

12. As noted above, in regard to
Issue Nos. 2 and 3, the Tribunal has
recorded findings of fact that on the date
of the accident, the vehicle in question
was insured with the Appellant-Insurance
Company, and the Driver of the vehicle in
question was having a valid and effective
licence.

13. Sri Saral Srivastava, learned
counsel
for
the
Appellant-Insurance
Company has not been able to point out
any error in the said findings recorded by
the Tribunal. The Appellant-Insurance
Company has failed to establish any
infirmity or illegality in the impugned
award on the grounds open to the
Appellant-Insurance Company to raise in
view of the provisions of sub-section (2)
of Section 149 of the Motor Vehicles Act,
1988.

14. Sri Saral Srivastava, learned
counsel
for
the
Appellant-Insurance
Company submits that the quantum of
compensation as determined by the
Tribunal is not correct as the Tribunal has
erred in applying multiplier of 15 and has
wrongly taken the monthly income of the
deceased as Rs.4,000/-.

15. In our opinion, as the application
of the Appellant-Insurance Company
under Section 170 of the Motor Vehicles
Act,1988 was rejected by the Tribunal, it
is not open to the Appellant-Insurance
Company to raise the question of quantum
of compensation, awarded by the Tribunal
in the impugned award. The pleas raised
in this regard by Sri Saral Srivastava,
learned
counsel
for
the
AppellantInsurance Company cannot, therefore be
considered.

16. In view of the above, we are of
the opinion that the appeal filed by the
Appellant-Insurance
Company
lacks
merits, and the same is liable to be
dismissed.

17. The appeal is, accordingly,
dismissed. However, on the facts and in
the circumstances of the case, there will
be no order as to costs.

18. The amount of Rs.25,000/-
deposited by the Appellant-Insurance
Company while filing the present appeal,
will be remitted to the Tribunal for being
adjusted towards the amount payable
under the impugned award.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 63052 of 2007

Vinay Kumar Upadhyay
...Petitioner
Versus
State of U.P. and others ...Respondents