The New India Assurance Co. Ltd., Thr. Its Manager., v. Nazima Shaikh @ Nazima Bi And 5 ORS.,

Niti

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO.83 OF 2017 The New India Assurance Co. Ltd a company duly registered under the Companies Act, 1956 wholly owned by the Government of India through its Manager having its Branch office at Jaganath Building, Loyala Road, Margao Goa.

...Appellant

Versus

1)Mrs. Nazima Shaikh alias Nazima Bi, w/o Late. Shaikh Hassan Shaikh Rahimtulla, aged about 39 years, housewife (Claimant No 1);

2) Mr. Sheikh Rahamtula, S/o of Late. Shaikh Hassan Shaikh Rahimtulla, Age 19 years, student,

3) Miss. Zuhina Shaikh, D/o Late. Shaikh Hassan Shaikh Rahimtulla, Age 18 years, student,

4) Maria Candelaria Colaco, All R/o H. no.187, Sasmollem, Baina, Vasco Da Gama, Goa.

5) Mr. Damodar P. Tanawade, Major in age, Son of Prabhakar Tanawade, R/o H. no. 600, Opposite Goa Shipyard Ltd. Mundvel, Vaddem, Vasco Da Gama, Goa. (Owner of Truck no. GA-02-T-9202)

6) Mr. Harish R. Asare,

R/o. Sasmollem, Baina, Near Mansoor Floor Mill, Native from Jaunpur (Uttar Pradesh).

(Driver of Truck No.GA-02-T-9202.

...Respondents

Mr. Amey Kakodkar and Mr. Pankaj Shirodkar, Advocates for the Appellant.

Mr. G. Kerkar holding for Mr. D. Pangam, Advocate for Respondent Nos.1 to 4.

CORAM:

M. S. SONAK, J.

DATED:

17th MARCH 2022 ORAL JUDGMENT :

1.

Heard Mr. Kakodkar, learned Counsel for the appellant and Mr. G. Kerkar holding for Mr. D. Pangam, learned Counsel for respondent nos.1 to 4.

2.

This appeal has been filed by the appellant/Insurance Company challenging the award made under Section 166 of the Motor Vehicle Act, 1988 (said Act).

3.

There is no dispute in this case that no leave was obtained under Section 170 of the said Act by the appellant/Insurance Company before the Motor Accident Claims Tribunal. 4.

Therefore, by following the law laid down by the Division Bench of this Court in I.C.I.C.I. Lombard General Insurance

Co. Ltd., Amravati V/s. Surekha w/o. Prakash Ghurde and ors.

1, this appeal will have to be dismissed as not maintainable. 5.

Mr. Kakodkar, learned counsel for the appellant/Insurance Company however pointed out that in Oriental Insurance Ltd. V/s. Sangita Devi and Ors.

2, the Delhi High Court, relying upon the decision of the Hon'ble Supreme Court in United India Insurance Co. V/s. Sudha Rani 3 has held that once the insurance company is voluntarily impleaded as a party to the claim petition by the claimants, it can raise all defences, including the defences concerning the quantum of compensation. He submitted that despite best efforts he was not in a position to obtain the copy of the decision of the Hon'ble Supreme Court in Sudha Rani (supra).

6.

He also referred to the decision of the Hon'ble Supreme Court in Bajaj Alianz General Insurance Co. Ltd. V/s. Kamala Sen4 which according to him holds that where the insurance company is impleaded as a party respondent, it can raise all contentions that are available to resist the claim. He pointed out that this is what was held by the Hon'ble Supreme Court in the 1 (2020) 2 Bom.CR 465 2 2016 SCC Online Del. 1221 3 Civil Appeal No.8654/2013 decided on 24.09.2013 4 2014 ACJ 2396

case of United India Insurance Company Ltd. V/s. Shila Datta 5.

7.

Although the Division Bench of this Court in I.C.I.C.I. Lombard General Insurance Co. Ltd. case (supra), may have not referred to the decision of the learned Single Judge of the Delhi High Court in Sangita Devi (supra) or the decision of the Hon'ble Supreme Court that was referred to therein, the Division Bench, has considered the decisions of the Hon'ble Supreme Court in National Insurance Company Limited V/s. Nicolletta Rohtagi 6, United India Assurance Company Ltd.

Vs. Bhushan Sachdev 7, Shila Datta (supra) and Josephine James V/s. United India Insurance Company Limited8 and held that notwithstanding the reference made, the decisions in Nicoletta Rohtagi (supra) and Josephine James (supra) hold good and based upon the same, the appeal filed by the Insurance Company questioning the quantum of compensation, would not be maintainable in the absence of permission under Section 170(b) of the said Act.

5 (2011) 10 SCC 509 6 (2002) 7 SCC 456 7 (2002) 2 SCC 265 8 (2013) 16 SCC 711

8.

Accordingly, this appeal is dismissed. However, dismissal of this appeal will not come in the way of the appellant-insurance company from instituting any other proceedings, if maintainable in law.

9.

The appellant/Insurance Company has deposited the awarded amount in this appeal. Accordingly, the claimants are permitted to withdraw the amount deposited in this Court together with interest if any that may have accrued thereon after four weeks from today unless, of course, the appellant/Insurance Company, in the meanwhile, secures restraint orders for such withdrawal.

10.

The claimants will have to furnish the necessary identification and bank details so that the Registry can directly deposit the amounts into the respective bank accounts of the claimants. The claimants will also be entitled to the interest that may have accrued on the deposited amounts after adjusting the amounts already withdrawn by the claimants.

11.

This appeal is disposed of in the aforesaid terms. M. S. SONAK, J.

K HALDANKAR Date: 2022.03.21 10:06:24 +05'30'

NITI K HALDANKAR