Whether an insurer can prefer an appeal under Section 173 of the M.V.Act against an award of a Claims Tribunal challenging the quantum of compensation awarded when the insurer had not obtained permission under Section 170 of the Motor Vehicles Act to contest the matter before the Tribunal on all or any of grounds that are available to the person against whom the claim has been made.

Insurer

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.

M.A.C.A.Nos.683 & 1722 OF 2016

Dated this the 28th day of September, 2016

AGAINST THE AWARD IN OPMV 2194/2013 of M.A.C.T.,ERNAKULAM DATED 26-11-2015

APPELLANT/3RD RESPONDENT

UNITED INDIA INSURANCE COMPANY LIMITED ERNAKULAM, NOW REPRSENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.

BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

RESPONDENTS/PETITIONERS

BEENA PATHROSE AND OTHERS

R1-R4 BY ADV. SRI.RAHUL SASI R1-R4 BY ADV. SMT.NEETHU PREM

JUDGMENT

Ravikumar, J.

The captioned appeals carry conflicting contentions and prayers though both of them carry challenge against the judgment and award dated 26.11.2005 in O.P.(MV)No.2195/2013 passed by the Motor Accidents Claims Tribunal, Ernakulam. The above mentioned claim petition was filed by the appellants in the latter appeal and the third respondent therein, the insurer of the alleged offending vehicle involved in the accident that led to its filing, is the appellant in the former appeal. While the appellant in the former appeal seeks for appellate interference with the award on the ground of exorbitancy of the quantum of compensation granted by the Tribunal, the appellants in the latter appeal seek for its enhancement contending that they were denied ‘just compensation’. For the sake of convenience, the parties are referred to hereinafter in this judgment, in accordance with their respective status in the claim petition, unless otherwise specifically mentioned.

2. As noticed hereinbefore, the third respondent feels aggrieved by the award, as according to the insurer, the quantum of compensation granted by the Tribunal is highly exorbitant. It is with the prayer to scale down the quantum of compensation that the former appeal has been filed. The learned counsel appearing for the petitioners/appellants in the latter appeal, however, takes up the contention that an insurer cannot maintain an appeal challenging the quantum of compensation if the claim petition was resisted by an insurer, without obtaining permission under

Section 170 of the Motor Vehicles Act

(for short ‘the M.V.Act’). Per contra, the learned Senior Counsel appearing for the third respondent/appellant in the former appeal contends that in the light of the decision of the Honourable Apex Court in

United India Insurance Co.Ltd. v. Shila Datta, (2011) 4 KLT 378 (SC)

the objection raised is absolutely bereft of any basis and as such, absolutely untenable.

3. In the light of the rival contentions, we are of the considered view that before considering the question whether the quantum of compensation awarded by the Tribunal is exorbitant or inadequate the very maintainability of the former appeal filed by the insurer, in the light of the objection raised by the respondents therein viz., the petitioners, has to be considered.

4. We have heard the learned Senior Counsel Sri.Mathews Jacob appearing for the third respondent/appellant in the former appeal and also Smt.Neethu Prem, the learned counsel appearing for the petitioners/appellants in the latter appeal, who are the respondents in the former appeal. In the appeal filed by the insurer the petitioners before the Tribunal alone are the respondents. In the latter appeal filed by the petitioners in addition to the insurer the insured owner and the driver of the alleged offending vehicle are also made parties. However, it is submitted by the learned Senior Counsel for the third respondent insurer that the liability to indemnify the insured owner of the vehicle is not in dispute. Hence, issuance of notice to respondents 1 and 2 in the latter appeal is dispensed with. We will, now, proceed with the appeals and as stated earlier, we will firstly consider the maintainability of the former appeal.

5. As noticed hereinbefore, the question is whether an insurer can prefer an appeal under Section 173 of the M.V.Act against an award of a Claims Tribunal challenging the quantum of compensation awarded when the insurer had not obtained permission under Section 170 of the Motor Vehicles Act to contest the matter before the Tribunal on all or any of grounds that are available to the person against whom the claim has been made. While the learned Senior Counsel appearing for the third respondent contends that the said question is no more res integra in view of exposition of law on the said question in Shila Datta’s case, the learned counsel appearing for the petitioners contends that that question is not squarely covered thereunder and the position of law obtained on that issue in the light of the the decision of the Honourable Apex Court in

National Insurance Company Ltd., Chandigarh v. Nicolletta Rohtagi, (2002) 7 SCC 456

still holds the field. According to the learned counsel for the petitioners as per Shila Datta’s case that question, now, stands referred to a larger Bench.

6. In the light of the rival contentions advanced before us, the question is whether the Hon’ble Apex Court had settled the position of law on the aforesaid question, primarily posed for consideration by us, in Shila Datta’s case or whether the said question was only referred to a larger Bench for resolution ? A mere perusal of the decision in Shila Datta’s case would reveal that the said case came up before a three Judge Bench pursuant to an order of reference by a two Judge Bench.

While considering the matter referred for consideration in the wake of the decision in Nicolletta Rohtagi’s case and also the relevant provisions under the M.V. Act, the Hon’ble Apex Court formulated five points for consideration in Shila Datta’s case. In paragraph 6 of the said decision, its earlier decision in Nocolletta Rohtagi’s case was dealt with by the Apex Court and it reads thus :

“6. In