Supreme Court of India

BIJOY KUMAR DUGARversusBIDYADHAR DUTT AND ORS.

Citation: 2006 INSC 131
Decided: 1 March 2006
Disposal: Appeal(s) allowed
Bench: B N SRIKRISHNA

Holding

The MACT's award of compensation and interest is just and reasonable; the claimants failed to prove future earning prospects, the 50:50 liability apportionment is correct, and the insurer's writ petition is not maintainable as it has a statutory right of appeal under the Motor Vehicles Act.

Summary

The case involved a head‑on collision between a car and a bus in which the car driver, Raj Kumar Dugar, died. His parents claimed compensation from the Motor Accidents Claims Tribunal (MACT), which awarded a sum based on his present earnings, applied a multiplier, and held both drivers equally liable, directing the insurer to pay 50% of the amount with interest at 10% per annum from filing to payment. The claimants appealed for enhancement of compensation, arguing future earning prospects, while the insurer challenged the interest award via a writ petition under Articles 226/227. The Supreme Court held that the claimants had not produced evidence of future earnings, the 50:50 apportionment of liability was correct, and the insurer’s writ petition was not maintainable because it has a statutory right of appeal under Sections 149(2) and 173 of the Motor Vehicles Act, 1988. Consequently, the MACT’s award of compensation and interest was upheld and the High Court’s modification was set aside.

Issues considered

The claimants' entitlement to enhanced compensation based on projected future earnings without evidentiary support.
The correctness of the MACT's 50:50 apportionment of liability for contributory negligence.
The propriety of awarding interest at 10% per annum from the date of filing to payment.
The maintainability of the insurer's writ petition under Articles 226/227 in view of the statutory appeal provisions of the Motor Vehicles Act, 1988.

Legislation cited

Code of Civil Procedure, 1908s. 115
Constitution of Indias. 226, s. 227
Motor Vehicles Act, 1988s. 149(2), s. 166, s. 170, s. 173

Subjects

Motor Vehicles ActCompensationContributory negligenceFuture earningsInterest awardWrit petitionStatutory appealMACTDependency multiplierInsurance liability

Judgment

BIJOY KUMAR DUGAR A
v.
BIDY ADHAR DUTT A AND ORS.

MARCH I, 2006

[B.N. SRIKRISHNA AND LOKESHWAR SINGH PANTA, JJ.] B

Motor Vehicles Act, 1988: Section 166:

Accident claim-Head-on collision between car and bus-Amount of
compensation-Appeal for enhancement of-Future prospects ofthe deceased- C
Contributory negligence-The car's driver died in the accident-Claimants
were the deceased's father and mother aged 50 years and 45 years
respectively-MACT awarded a certain sum as compensation-Insurance
Company directed to pay half the amount of compensation as the deceased
was held liable for contributory negligence-High Court riefected the claimants' D
appeal for enhancement of compensation-Held: Compensation should be the
pecuniary loss to the dependants by the death of a person-Claimants have
to prove that the deceased had opportunities or special qualifications which
would have led to an improvement in his income-There is no evidence
produced on record by claimants regarding fature prospects of increase of
income in course ofemployment or business or profession-Hence, MACT has E
awarded just and reasonable compensation to the claimants.

Accident claim-Head-on collision between car and bus-Contributory
negligence-PW.2, who was travelling in the car along with the .deceased,
stated that the driver of the offending bus was driving the vehicle in an
abnormal speed and also in a zigzag manner-MA CT, disbelieving the evidence F
of PW. 2, held both the vehicles liable for contributory negligence-Therefore,
insurance company directed to pay half the amount of compensation-
Correctness of-Held: The MACT has rightly observed that had it been the
knocking on one side of the car, the negligence or rashness could have been
wholly fastened on the driver of the bus-But when the vehicles had a head- G
on collision, the drivers of both the vehicles should be held equally responsible
for the accident-Hence, tribunal's order justified.

Constitution of India, 1950:

803 H
804 SUPREME COURT REPORTS (2006] 2 S.C.R.

A Article 226--Writ petition~Maintainability of-Insurance Company
challenged order passed by Motor Vehicles Accident Tribunal (MACT)
awarding interest rd) 10% p.a on the amount of compensation-High Court
allowed the writ petition holding that the claimants were entitled to interest
only for two years---Correctness of--Held: Under S 173 of the Motor Vehicles
B Act, 1988 insurer has a right 10 file appeal before the High Court on limited
grounds under S 149(2)-Since the insurer had a remedy by filing an appeal
before the High Court. writ petition challenging the award of interest by the
Tribunal is not maintainable.

There was an accident wherein two vehicles, namely, a car and a
C bus were involved in a head-on collision. The driver of the car died in the
accident on the spot. The deceased, a science graduate, was 24 years old
at the time of the accident and was prosecuting law studies and was
earning Rs. 4,000 per month. The deceased was unmarried and the
claimants were his father and mother aged 50 years and 45 years
respectively. There was no evidence produced on record by the claimants
D regarding future prospects of increase of income in the course of
employment or business or profession. PW-2, who was traveling in the
car along with the deceased, s11ated that, before the accident, the deceased
noticed a passenger bus coming from the opposite direction and the
movement of the bus was not normal as it was coming in a zigzag manner.

E The Motor Accidents Claims Tribunal (MACT) came to the
conclusion that both the deceased and the driver of the bus were driving
their respective vehicles in a rash and negligent manner and the accident
was as a result of their contributory negligence for which the insurer-
respondent No. 3 was liable to pay half of the amount of compensation to
F the claimants. It also directed that the amount of compensation as awarded
be paid with interest at the rate of 10% per annum from the date of
filing of the claim petition till payment.

The High Court dismissed the appeal of the claimants for
enhancement of the compensation, but allowed the writ petition of the
G insurer holding the claimants entitled to interest on the award amount
only for a period of two years, i.e. from IO.l.1989 to October, 1990 when
the Insurance Company appeared and filed its written statement before
the MACT. Hence the appeal.

Allowing the appeal, the Court
H
BUOY KUMAR DUGAR v.BIDY ADHAR DUTT A 805

~ HELD: 1.1. It is by now well-settled that the compensation should A
be the pecuniary loss to the dependants by the death of a person concerned.
While calculating the compensation, annual dependency of the dependants
should be determined in terms of the annual loss, according to them, due
to the abrupt termination of life. To determine the quantum of
compensation, the earnings of the deceased at the time of the accident B
and the amount, which the deceased was spending on the dependants, are
the basic determinative factors. The resultant figure should then be
multiplied by a 'multiplier'. The multiplier is applied not for the entire
span of life of a person, but it is applied taking into consideration the
imponderables in life, immediate availability of the amount to the
dependants, the expectancy of the period of dependency of the claimants C
and so many other factors. Contribution towards the expenses of the
family naturally is in proportion to one's earning capacity. In the present
case, the earning of the deceased and consequently the amount which he
was spending on the members of his family, i.e. dependency is to be
worked out on the basis of the earnings of the deceased at the time of the D
accident. The mere assertion of the claimants that the deceased would
have earned more than Rs. 8,000 to Rs. 10,000 per month in the span of
his lifetime cannot be accepted as legitimate income unless all the relevant
facts are proved by leading cogent and reliable evidence before the Motor
Accidents Claims Tribunal (MACT). The claimants have to prove that
the deceased was in a trade where he would have earned more from time E
to time or that he had special merits or qualifications or opportunities
which would have led to an improvement in his income. There is no
evidence produced on record by the claimants regarding future prospects
of increase of income in the course of employment or business or
profession, as the case may be. It is stated that the deceased was about 24
years at the time of the accident. The MACT has accepted Rs. 4,000 per F
month as the earning of the deceased and after deducting Rs. 400 per
month for his pocket expenses, the remaining sum of Rs. 3,600 has been
divided into three equal shares, out of which two shares, i.e. Rs. 2,400 per
month or Rs. 28,800 (wrongly mentioned as Rs. 28,800 in the award),
were assessed as loss to both the claimants, who were the parents of the G
deceased. The ages of the claimants are stated to be between 45 and 50
years and accordingly multiplier of 12 was applied. Thus, a sum of Rs.
28,800 X 12 = Rs. 3,45,600 .was awarded as compensation. In addition
thereto, a sum of Rs. 2,000 has been given for funeral expenses and a
further amount of Rs. 6,000 under the head "Loss of Estate". The total
sum awardable is Rs. 3,53,600 but since the deceased was held liable for H
806 SUPREME COURT REPORTS (2006) 2 S.C.R.

A contributory negligence, the liability of the insurer with whom the bus in
question was insured is fixed at 50% i.e. to the extent of Rs. 1,76,800 with
interest at the rate of 10% per annum from the date of filing of the claim
application till the date of payment. The deceased, a young boy of 24
years old, was unmarried and the claimants were his father and mother,
B the dependency has to be calculated on the basis that within two or three
years the deceased would have married and raised a family and the
monthly allowance he was giving to his parents would have been cut
down. Thus, the MACT has awarded just and reasonable compensation
to the claimants. [810-A-H; 811-A-BI

C G.M Kera/a S.R.TC. v. Susumma Thomas, [1994) 2 SCC 176 and
Sar/a Dixit v. Bu/awant Yadav, [1996[ 3 SCC 179, held inapplicable.

1.2. In the present case, th,ere is no evidence brought on record by
the claimants to show the future prospects of the deceased. [812-CI

D 2. The MACT has not accepted the evidence of PW-2 to prove that
the driver of the offending bus was driving the vehicle in an abnormal
speed. If the bus was being driwn by the driver abnormally in a zigzag
manner, as PW-2 wanted the Court to believe, it was but natural for the
deceased, as a prudent man, to have taken due care and precaution to
avoid a head-on collision when he had already seen the bus from a long
E distance coming from the opposite direction. It was a head-on collision in
which both the vehicles were damaged and unfortunately the deceased
died on the spot. The MACT has rightly observed that had it been the
knocking one side of the car, the negligence or rashness could have been
wholly fastened or attributable to the driver of the bus, but when the
F vehicles had a head-on collision, the drivers of both the vehicles should
be held responsible to have contributed equally to the accident. The
finding on this issue is a finding of fact and there is no cogent and
convincing reason to disagree with the well-reasoned order of the MACT
on this point. The MACT has awarded interest at the rate of 10% per
annum on the amount of compensation from the date of filing of the
G claim application till the date of payment. It is a discretionary relief
granted by the MACT and the discretion exercised by the MACT cannot
be said to be inadequate and inappropriate. (812-E-H; 813-Al

3.1. It is not in dispute that the right of appeal is a statutory right to
the parties and where the law provides a remedy by filing an appeal on
H limited grounds, the grounds of challenge cannot be enlarged by filing a
BIJOY KUMAR DUGAR v.BIDY AD HAR DUTTA 807
petition under Articles 226/227 of the Constitution on the premise that A
the insurer has limited grounds available for challenging the Award given
by the MACT. Under Section 173 of the Motor Vehicles Act, 1988, an
insurer has a right to file an appeal before the High. Court on limited
grounds available under Section 149(2). The appeal being a product of
the statute it is not open to an insurer to take any on merit, in that case it B
is open to the insurer to file an appeal against the Award of the MACT
on merits. Thus, in such a situation, the insurer can question the quantum
of compensation awarded by the MACT. The insurer made a challenge
to the Award of the MACT before the High Court in the writ petition on
the ground of its liability to pay the interest on the amount of compensation
for a specified period without obtaining the permission of the MACT as C
contemplated under the statute. [814-B-F]

3.2. Dealing with the provisions of Sections 173 and 149(2) of the
Act and the provisions of Articles 226 and 227 of the Constitution and
also Section 115 of the Code of Civil Procedure, 1908, this Court in
Sadhana Lodh 's case held that since the insurer has a remedy by filing an D
appeal before the High Court on the available defences envisaged under
the statute, writ petition under Articles 226/227 of the Constitution by an
insurer challenging the Award of the MACT is not maintainable.
[814-F-G]

3.3. The judgment in Sadhana Lodh 's case clinches the issue that the E
writ petition filed by the Insurance Company was not maintainable against
the order of the MACT awarding interest at the rate of 10% per annum
on the amount of compensation from the date of the institution of the
claim till the date of payment. [814-H; 815-A]

Sadhana Lodh v. National Insurance Co. Ltd., [2003) 3 SCC 524, F
relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3731-3732
of 2002.

From the Judgment and Final Orders dated 19.7.2001 of the Assam G
High Court in M.A.C. Ap!Jeal No. 56 of 2000 and in Writ Petition (C) No.
4418 of 2000.

Jos Chiramel, S.B. Upadhyay and Ms. Rakhi Anand for the Appellant.

B.K. Satija, Vishnu Mehra and Karan Mehra for the Respondents.
H
808 SUPREME COURT REPORTS [2006) 2 S.C.R.

A The Judgment of the Court was delivered by

LOKESHW AR SINGH PANT A, J. These two appeals involve identical
questions of facts and issues, and are, therefore, disposed of by this common
judgment.

B Civil Appeal Nos. 3731··3732 of 2002 are filed by the appellant
impugning two judgments and orders dated 19th July, 2001 passed by the
Division Bench of the High Court of Gauhati in M.A.C. Appeal No. 56 of
2000 and in Writ Petition (C) No. 4418 of 2000. Facts of Civil Appeal No.
3731/2002 shall cover the facts of the other Appeal No. 3732 of 2002.

C C.A. No. 3731 of 2002
Facts in brief are that on l 5.4.1988 at about 4.00 p.m. an accident took
place at Kharjan Pol of Sahab Pathar, Tingrai, a place between Tinsukia and
Digboi in the State of Assam wherein two vehicles, namely, Maruti car
D bearing registration No. UPI 237 and a bus bearing registration No. ASQ
8446, were involved in a head-on collision. Raj Kumar Dugar, the owner of
the Maruti car, died in the accident on the spot. Bidya Dhar Dutta, respondent
No. I, is the owner of the bus and Ajay Baruah, respondent No. 2 herein, was •
driving the offending bus, when it met with an accident. The bus was insured
with the Oriental Insurance Company Limited-respondent No.3. The car of
E the deceased was not insured as he had purchased it hardly a day or two
before the accident. The appellant-Bijoy Kumar Dugar and his wife-Smt.
Panna Devi Dugar [now dead] were the original claimants before the Motor
Accident Claims Tribunal (hereinafter referred to as 'the MACT'), Tinsukia.
They claimed a sum of Rs. 25,00,000/- as compensation from the respondents.
F The MACT, relying upon the evidence and other material on record, came to
the conclusion that the deceased Raj Kumar Dugar and Ajay Baruah, driver-
respondent No. 2, both were driving their respective vehicles in a rash and
negligent manner and the accident was as a result of their contributory
negligence for which the insurer respondent No. 3 was liable to pay half of
the amount of compensation, i.e. Rs. 1,76,800/-, to the claimants. It also
G directed that the amount of compensation as awarded be paid with interest at
the rate of 10% per annum from the! date of filing of the claim petition till
payment.

Aggrieved by the inadequacy of the amount of compensation, the
claimants filed MAC Appeal No. 56/2000 before the High Court. The Oriental
H Insurance Company also challenged the award in Writ Petition (C) No.4418/
BIJOY KUMAR DUGAR v. BIDYADHAR DUTTA [LOKESHWAR SINGH PANTA, J.] 8Q9

2000, on the sole ground that the Company is not liable to pay interest on A·
the compensation amount from 1988 as directed by the MACT. The High
Court dismissed the appeal of the claimants for enhancement of the
compensation, but allowed the writ petition of the insurer holding the claimants
entitled to interest on the award amount only for a period of two years, i.e.
from I0.1.1989 to October, 1990 when the Insurance Company appeared and
filed its written statement before the MACT. The Award to that exterit, B
accordingly, was modified. Now, the claimants are before this Court in these
two appeals assailing the correctness and validity of<l'i!e judgments and orders
dated 19th July, 2001 passed by the High Court. During the pendency of
these appeals, claimant Smt. Panna Devi Dugar had died and her legal
representatives are proforma respondents herein. C
We have heard the learned counsel appearing for both sides at length.
Three submissions were advanced by Shri Jos Chiramel, learned counsel for
the appellant, to assail the order of the High Court dismissing the claimants'
" appeal for enhancement of the amount of compensation. First, that the High
Court has failed to consider the future prospects of the deceased who was a D
Science Graduate, prosecuting law studies and at the same time he was earning
Rs. 4,000/- per month as an attorney-holder of a petrol pump. According to
the learned counsel, Raj Kumar would have earned minimum Rs. 8,000/- to
I0,000/- per month, if not more, if he had not died in the accident. In support
of this submission, reliance is placed on G.M., Kera/a S.R.T.C. v. Susamma E
Thomas (Mrs.) & Ors., reported in [1994] 2 SCC 17 6 = (1994) ACJ I, and
Sarla Dixit (Smt.) & Anr. v. Ba/want Yadav & Ors., [1996] 3 SCC 179.

It was next contended that the High Court has erred in accepting the
finding of the MACT in apportioning the liability of the deceased and the
driver of bus in the ratio of 50:50. It was then contended that the interest ~t F
the rate of 10% per annum awarded by the MACT is on the lower side and
ought to have been enhanced by the High Court to 18% per annum as claimed
by the claimants.

The learned counsel appearing for the contesting respondent on the
other hand, has sought to support the orders of the High Court. He submitted G
that this Court, in exercise of power under Article 136 of the Constitution of
~ India, would ordinarily not interfere with the concurrent findings of facts
recorded by the MACT and affirmed by the High Court.

To appreciate the respective contentions of the learned counsel for the
H
810 SUPREME COURT REPORTS [2006] 2 S.C.R.

A parties, we have gone through the relevant material on record. It is by now
well-settled that the compensation should be the pecuniary loss to the
dependants by the death of a person concerned. While calculating the
compensation, annual dependency of the dependants should be determined in
terms of the annual loss, according to them, due to the abrupt termination of
life. To determine the quantum of compensation, the earnings of the deceased
B at the time of the accident and the amount, which the deceased was spending
for the dependants, are the basic determinative factors. The resultant figure
should then be multiplied by a 'multiplier'. The multiplier is applied not for
the entire span of life of a person, but it is applied taking into consideration :..
the imponderables in life, immediate availability of the amount to the
C dependants, the expectancy of th(: period of dependency of the claimants and
so many other factors. Contribution towards the expenses of the familY.,
naturally is in proportion to one's earning capacity. In the present case, the
earning of the deceased and consequently the amount which he was spending
over the members of his family, i'.e. dependency is to be worked out on the
basis of the earnings of the deceased at the time of the accident. The mere
D assertion of the claimants that the deceased would have earned more than Rs
8,0001- to Rs.10,000/- per month in the span of his litdime cannot be accepted
as legitimate income unless all the relevant facts are proved by leading cogent
and reliable evidence before the MACT. The claimants have to prove that the
deceased was in a trade where he would have earned more from time to time
E or that he had special merits or qualifications or opportunities which would
have led to an improvement in his income. There is no evidence produced on
record by the claimants regarding future prospects of increase of income in
the course of employment or business 'or profession, as the case may be. It
is stated that the deceased was about 24-years at the time of the accident. The
MACT has accepted Rs. 4,000/- pier month, as the earning of the deceased
F and after deducting Rs. 400/- per month for his pocket expenses, the remaining
sum of Rs. 3600/- has been divided into three equal shares, out of which two
shares, i.e. Rs. 2400/- per month or Rs. 28,800/- (wrongly menti.oned as Rs.
28,000/- in the award), were assessed as loss to both the claimants, who were
the parents of the deceased. The ages of the claimants are stated to be between
G 45 and 50 years and accordingly multiplier of 12 was applied. Thus, a sum
of Rs. 28,800/- X 12 = Rs. 3,45,600/- was awarded as compensation. In
addition thereto, a sum of Rs. 2,000/- has been given for funeral expenses
and a further amount of Rs. 6,000/- under the head "Loss of Estate". The
total sum awardable is Rs. 3,53,600/- but since the deceased was held liable
for contributory negligence, the liability of the insurer with whom the bus in
H
BUOY KUMAR DUGAR v.BIDYADHAR DUTTA [LOKESHWAR SINGH PANTA, J.l 811

question was insured is fixed at 50%, i.e. to the extent of Rs. 1,76,800/-with A
interest at the rate of !0% per annum from the date of the filing of the claim
application till the date of payment. The deceased, a young boy of 24 years
old, was unmarried and the claimants were his father and mother, the
dependency has to be calculated on the basis that within two or three years
the deceased would have married and raised family and the monthly allowance
he was giving to his parents would have been cut down. Thus, in our view, B
the MACT has awarded just and reasonable compensation to the claimants.

We have gone through the ratio of the above decisions relied upon by
·' the claimants in support of the submission for the enhancement of the amount
of compensation. In G.M, Kera/a SRTC's case (supra), the claimants have C
satisfactorily proved on record that the deceased person in that case had a
more or less stable job in the newspaper establishment of Malayala Manorama
on a monthly salary of Rs. 1032/-. On the basis of the evidence found on
record in regard to the prospects of the advancement in the future career of
the deceased, this Court has made higher estimate of monthly income at RS.
2,0001- per month as the gross income and granted relief to the claimants. D

Jn Sar/a Dixit's case, the widow and minor daughter of Captain
Ramakant Dixit who died in the accident filed claim petition before the
Motor Accident Claims Tribunal claiming a sum of Rs. 6, 12,524/- on various
heads. The Claims Tribunal found deceased Ramakant guilty of contributory
negligence to the extent of 75% and the truck driver was negligent only to E
the extent of 25% and awarded in all Rs. 42,569/- to the claimants. On
appeal, the High Court held that the claimants were entitled to get total
compensation of Rs. 54,000/- and observed that deceased Ramakant was not
guilty of any contributory negligence and the entire negligence rested on the
shoulder of driver of truck and consequently the owner of the truck was held F
· liable to meet the claim of compensation awarded to the claimants. Interest
at the rate of 6% from the date of filing of the claim petition was awarded.
Being aggrieved, the claimants filed Special .Leave Petition before this Court
against the inadequacy of the compensation granted by the High Court. This
Court, after taking into consideration the material facts on record, found that
the deceased was the only breadwinner in the family of the claimants. His life G
was cut short in the prime period at the age of 27 by way of an accident. He
had put in seven years' of military service by that time. He was earlier a
Lieutenant in the Army. Then he was promoted to the rank of the Captain
and was fully qualified for promotion to the rank of a Major at the time of
his death. The claimants filed a certificate of Deputy Commandant and OC H
812 SUPREME COL'RT REPORTS [2006] 2 S.C.R.

A Tps. to show that the deceased had obtained Sena Seva Service Medal,
Sangram Medal, Poorvi Star and 25th lndept. Anniversary Medal during
Military active service in various operation areas. The deceased at the time
of his death had passed his M.A. examination and he was in the time-scale
of Rs. 1000-50-1550. He had a large number of years of military service
B ahead of him which would have certainly taken him to higher echelons in his
military career. The evidence proved that the deceased was a teetotaller and
he did not smoke or drink. On the basis of the entire evidence, the claimants
were held entitled for the enhancement of the amount of compensation.

In the present case, as noticed, there is no evidence brought on record
C by the claimants to show the future prospects of the deceased. This contention,
in our view, is not tenable to sustain it.

Adverting to the next contention of the claimants, no doubt the High
Court has not dealt with the point in issue. However, we have noticed the
reasoning and finding of the MACT recorded under Issue No.2. It is the
D evidence of Rajesh Kumar Gupta-P. W.2 who was travelling in the Maruti car
along with the deceased Raj Kumar Dugar on the day of the accident that he
also suffered some injuries in the said accident. He stated that while coming
from Digboi, the Maruti car being driven by the deceased met with an accide,nt
at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed •
a passenger bus coming from the opposite direction and the movement of the
E bus was not normal as it was coming i.~ a zigzag manner. The Maruti car
being driven by the deceased Raj Kumar Dugar and the offending bus had
a head- on collision. The MACT has not accepted the evidence of P.W. 2 to
prove that the driver of the offending bus was driving the vehicle in abnormal
speed. If the bus was being driven by the driver abnormally in a zigzag
p manner, as P.W. 2 wanted the Court to believe, it was, but natural, as a
prudent man for the deceased to have taken due care and precaution to avoid
head-on collision when he had already seen the bus from a long distance
coming from the opposite direction. It was head-on collision in which both
the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the
spot. The MACT, in our view, has rightly observed that had it been the
G knocking on one side of the car, the negligence or rashness could have been
wholly fastened or attributable to the driver of the bus, but when the vehicles
had a head-on collision, the drivers of both the vehicles should be held
responsible to have contributed equally to the accident. The finding on this
issue is a finding of fact and we do not find any cogent and convincing
H reason to disagree with the well-reasoned order of the MACT on this point.
BUOY KUMAR DUGAR r.BIDY ADHAR DUTT A [LOKESHWAR SINGH PANT A, J.] 8 J3

The MACT has awarded interest at the rate of I 0% per annum on the amount A
~ of compensation from the date of filing of the claim application till the date
of payment. It is a discretionary relief granted by the MACT and, in our
view, the discretion exercised by the MACT cannot be said to be inadequate
and inappropriate.

For the above said reasons, we find that the amount of compensation B
awarded by the MACT to the claimants is just and equitable and warrants no
further enhancement. We find the pleas raised by the claimants wholly
untenable as there is no material on record to sustain them. Hence, the appeal
filed by the claimants for enhancement of compensation stands dismissed.

C. A. No. 3732 of 2002
c
This appeal arises out of the order of the High Court allowing C.W.P.
No. 4418/2000 filed by the Oriental Insurance Company Limited against the
award of ·the MACT to the extent of payment of interest. The ground of
challenge was that the claim petition was filed by the claimants on 3rd October, D
1988 in which the Insurance Company was arrayed as respondent No. 3. The
claimants failed to take steps for the service of the respondents when the
claim petition was taken by MACT on 6th December, 1988 and further time
was given to take the steps. It was on I 0th January, 1989 when prayer was
made by the insurer to allow it to file the written statement. Ultimately, the
written statement was filetl in the month of October, 1990. The defence of E
the Insurance Company was that it was liable to pay interest on the amount
of compensation from the period starting from I 0th January, 1989 to October,
1990 and not prior to that date as the insurer had put in appearance before
the MACT only on 10th January, 1989. The High Court accepted the writ
petition of the Insurance Company and quashed the Award of the MACT to
F
the extent that the claimants shall be entitled to interest only for a period of
1 two years, i.e. from the date of the appearance of the Insurance Company on
10th January, 1989 to October, 1990 when it filed the written statement.

Being aggrieved against the said order of the High Court, the claimants
have filed this appeal contending that the writ_ petition of the Insurance G
Company against the award of interest on the amount of compensation by the
MACT was not maintainable when it had not obtained the right to contest the
-1-
proceedings on merit under Section 170 of the Motor Vehicles Act, 1988 0

(hereinafter referred to as "the Act").

As noticed in the earlier part of this judgment, the High Court modified H
814 SUPREME COURT REPORTS [2006] 2 S.C.R.

A the Award of the MACT to the extent that the Insurance Company is only
liable to pay interest at the rate of I 0% per annum on the amount of
compensation from 10th January, 1989 to October 1990, when it filed written
statement to the claim petition and prior to those dates the insurer was not
at fault.

B It is not in dispute that the right of appeal is a statutory right to the
parties and where the law provides a remedy by filing an appeal on limited
grounds, the grounds of challenge cannot be enlarged by filing a petition
under Articles 27.6/227 of the Constitution on the premise that the insurer has
limited grounds available for challenging the Award given by the MACT.
C Under Section 173 of the Act, an insurer has a right to file an appeal before
the High Court on limited grounds available under Section 149(2). The appeal
being a product of the statute it is not open to an insurer to take any plea
other than those provided under Section 149(2) of the Act. However, in a
situation where there is collusion betw(:en the claimant and the insurer or the
insured does not contest the claim and forther, ifthe MACT does not implead
D the Insurance Company to contest the claim, in such a situation it is open to
the insurer to seek permission of the MACT to contest the claim on the
ground available to the insured or to a person against whom the claim has
been made. If permission is granted and the insurer is allowed to contest the •
claim on merit, in that case it is open to the insurer to file an appeal against
E the Award of the MACT on merits. Thus, in such a situation, the insurer can
question the quantum of compensation awarded by the MACT. As noticed
earlier in the present case, the insurer made a challenge to the Award of the
MACT before the High Court in the writ petition on the ground of its liability
to pay the interest on the amount of compensation for a specified period
without obtaining the permission of the MACT as contemplated under the
F statute. Thus, in the light of the decision of this Court in Sadhana Lodh v.
National Insurance Co. Ltd. & Anr., [2003] 3 SCC 524, dealing with the
provisions of Ss. 173 and 149(2) of th1: Act and the provisions of Articles
226 and 227 of the Constitution and also Section 115 of the Code of Civil
Procedure, 1908, this Court held that since the insurer has a remedy by filing
an appeal before the High Court on the available defences envisaged under
G the statute, writ petition under Article 226/227 of the Constitution by an
insurer challenging the Award of the MACT is not maintainable.

In our view, the above judgment clinches the issue that the writ petition
-
filed by the Insurance Company was not maintainable against the order of the
H MACT awarding interest at the rate of I0% per annum on the amount of
BUOY KUMAR DUGAR v.BIDYADHAR DUTTA [LOKESHWAR SINGH PANTA, J.] 815

-) compensation from the date of the institution of the claim petition till the date A
of payment. The impugned order, accordingly, is set aside. This appeal is
allowed. Consequently, the writ petition is dismissed. The award of the MACT
granting compensation to the claimants along with interest is fully justified
and it is accordingly maintained. The parties are left to bear their own costs.

V.S.S. Appeal allowed. B

)

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