HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH ‘ HON’BLE SHRI RAJEEV GUPTA, C.J. & HON’BLE SHRE UNEL KUS‘v’IAR $§NHA J. Coram MA. No. 515 of 2004 A?PELLANT Orientai Insurance Company through its Divismnai Manager, OppA High Court, Biiaspur. " ‘ VERSUS RESPONDENTS 1. Ragesh Yadav, sfo. Chandrika‘ . Yadav, aged about 30 years, r/o. Soh, PS-Gadwa, District Gadwa, presentiy r/o. House of Rajesh Agrawai, Rajpur, Post & PS- Rajpur, Distréct Sarguja (C.G.) 2. Raiesh Kurnar Agrawal, s/o. GP. Agrawai, r/o. Gram & Post Rajpur, District Sarguia (0.6.) ¢ (DRNER) ’ (OWNER) 3. Urmiia Devi, widow of Vimai Kumar; aged about 3D years, oaete Uraon. 4. Kum. Pariksha Lakra, d/o. Vimai Kumar, aged 15 years. 5. Kum. Durgavati, d/o. Vimai Kumar, aged 13 years. 6. Kum. Jyoti, d/o. Vimal Kumar, aged 1% years. 7. Kum. Lakshmi, d/o. Vimal Kumar, aged 4 years. (CLAIMANTS) (Respondents No. 4 to 7 minor through their natural guardian Mother Urmiia Devi, Widow of VimaiKumar) (Ail r/o Manik Prakashpur P.S. & Tehsii Ambikapur, Distt. Sarguja (C.G.) APPEAL UIS 173 OF MOTOR VEHICLE ACT \ Present: Shri Vinay Harit, learned Senior Counsei with Shri SuryaKant Mishra, learned counsel for the appellant. Shri Sushil Dubey, learned counsel for respondents No. 3 to ?. OREER (.7‘“ January, 2D09) The following order of the Court was passed by V¢ Rajeev Gupta, C.J.: This ls insurer’s appeal against the award dated a 07.022004, passed by First Additional Motor Accident Claims Tribunal, Ambikapur, in Motor Claim Case No.64/2003. ute iw d 2) Respondents No. 3 to 7, unfortna wdo an minor children of deceased mal Kumar claimed compensation of Vi Rs.34,10,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act for his death in the motor accident on 04.07.2003, Th claimants pleaded that deceased Vimal Kumar e was working as Constable in Central industrial Securty Forc and i e was getting salary of Rs.6,000/- per month. ~ 3) The Owner, Driver and the insurer of the offending vehicle truck contested the claim and denied their liabiiity to pay compensation to the claimants. The insurer took further plea that the truck was being plied in breach of the policy conditions and the driver of the truck was not holing a valid driving licence. d 4) The Tribunal on close scrutiny of t evidence led before a he it held that deceased Vimal Kumar died on account of the injuries sustained by him in the motor accident; the accident occurred due i ~ to rash and negligent driving of the driver of the offending vehicie truck; as the offending vehicle truck on the date of theaccident Was insured with the Oriental insurance Company Limited; the insurance l Company was liable to pay compensation to the plaimants. 5. The Tribunal assessed the income of the deceased at R§.5,128/— on the basis of the saiary certificate adduced in evidence. The claimants’ dependency was assessed at Rs.3,400l-~ persmonth. By multiplying the annual dependency with the multiplier ef 15, the compensation was worked out to Rs.6,12,QOO/-. By awarding a further sum of Rs,20,00Ct/- under other permissible heads, the Tribunal awarded a total sum of Rsr6,32,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition tiii the date of actual payment. 6. Shri Vinay Harit, learned Senior Counsei for the appellant/insurance Company vehemently argued that the $ Tribunal has erred in awarding excessive sum of Rs.6,32,000/— as compensation to the claimants. 7. Shri Sushil Dubey, learned counsel for respondents No. 3 to 7 (claimants) submitted that the appeilant/lnsurance Company cannot be permitted toyvchaiienge the quantum of compensation awarded by the Tribunal as permission under Section 170 of the -‘ Motor Vehicies Act to contest the claim on all available defences was not granted by the Tribunal to the appellant/insurance gemsanv. HI @ 8. Shri Vinay Harit, teamed Senior Counsei for the appeilant i ‘ after going through the Tribunai's record conceded that the eppellant/lnsurance Company neither applied for grant of §permission under Section 170 of the Motor Vehictes Act before the Tribune! nor the Tribunal granted any permission under iSection 170 of the Motor Vehictes Act. 9‘ , It is also reievant here to mention that the owner and driver of the offending vehicle truck contested the claim by fiting their separate written statements before the Tribunat. 10. The Apex Court in the case of National lnsurance Co. Ltd. Vs. Nicotietta Rohtagi and others, reported in 20(33 (3) T.A.C. 293 (SC), while considering the permissibility of challenge in appeal by the lnsurer of the offending vehicle to the quantum of ompensation awarded by the Tribunai observed in paras 31 and 32 as under :- “3‘t. We have already held that unless the conditions precedent specified in Section 170 of. 1988 Act is satisfied, an insurance Company has po right of appeal to chalienge the award on merits.~However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not, implead the Insurance Company to contest the claim in such cases 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 s\$al against an award on merits, if aggrieved. in t 7 \x c \ any‘case where an apptication for permission is erroneously rejected the insurer can chailenge only that part of -the order while filing appeal on grounds specified in sub-section (2) of Section 14g of 1983 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. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer reé integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award. 32. For the reasons, our answer to the question is that even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissibie for an insurer to file an appeal questioning the quantum of compensation as weil as findings as reqards neqlidence or contributory nedlioence of the offendino vehicle.” i’l. Insurance Company never sought permission from the Tribunal _ under Section 170 of the Motor Vehicies Act to contest the claim on all available defences. in the absence of permission under Section 170 of the Motor Vehicles Act, the insurer of the offending vehicle cannot be permitted to challenge the quantum of the compensation and the finding about the negligence/ contributory negligence in this appeai in view of the above quoted dictum of the Apex Court in the case of Nations! insurance Co. Ltd. Vs. Nicolietta Rohtagi and others (Supra). 12. Shri Vinay Harit, learned Senior Counsei for the appeilant/ insurance Company fairly and frankly conceded that the appellant/ € Now, reverting to the present case, admittedly, the -l“ @V Insurance Company has not challenged the impugned award on J any other ground except the quantum of compensation and the finding about the negligence/ contributory negligence. 1‘3‘ 3n this View of the matter, the appeal filed by the appellant/ lhsurance Company is liable to be dismissed. 14. The appeal, therefore, fails and is hereby dismissed. 15. No order as to costs. “t. Z Sdl- We Sdl- Ij Sunil Kumar Sinha Chief Justice 7‘2 Judge I. i a