^ HIGH COURT OF CHHATTIS6ARH. BILASPUR M.A.N0.569 OF 2006 APPELLANT/ : (Npn-applicant No,3) National Insurance Company Limited, through;- Its Branch Manager, Taha Complex, Vyapar Vihar Road, Bilaspur (C.6.) Versus RESPONDENTS 1. Smt. Puniya Bai, W/o Budh Ram (APPLECANT N0. 1) Kaivart, aged-43 years. (APPLICANT N0.2) 2. Budh Ram Kaivart S/o Late Johan Lal Kaivart, Aged-45 yedrs, (APPLECANT N0.3) (NON-APPLICANT N0.1) Ku. Savitri Kaivart D/o Shri Budhram Kaivart, aged-7 years (Minor through Natural Suardian Mother Smt. Puniya Bai-Respondent no.l) All are R/o Vill. Banahil, Hall Mukam Ramayan Cnowk, Chontidih, Bilaspur (C.G.) Yogesh Prakash S/o Rajkamal Prakash, Aged 26 years, R/o Vill. Barpali Chowk Champa, P.S. Champa, Distt.- Janjgir-Champa (C.6.) (NON-APPLECANT N0.2) Chhatturam Banjare S/o Premlal Banjare, R/o Jagdalla, P.S. Champa, Distt. Janjgir-Champa (C.S.) (Owner) ADDeal Under Section 173 of the Motor Vehicles Act. 1988 Present: Shri Dashroth 6upta, counsel for the appellant. •^a. SB: HON'BLE SHRI JUSTICE N.K. AGARWAL ORAL ORDER ( Passed on 12-08-2009 ) The instant appeal is directed by the National Insurance Co. Ltd., against the award dated 30-01-20Q6 passed by Fourth 3'f It' ..' "T'"6^ 't:w^... 'v !S"#'K:'K ;- l'>».. ••'' ^- Additional Motor Accident Claims Tribunal, Bilasp'ur (for short 'the Tribunal') in Claim Case No.95/2005 whereby and whereunder an amount of Rs.2,91,000/- along with interest © 6% per annum has been awarded against the owner, driver and appellant Insurance Company. 2. By way of this appeal, the appellant Insurance Company is challenging the quantum of compensation awarded by the learned Tribunal. 3. Admittedly, the learned Tribunal had not passed any order under Section 170 of the Motor Vehicles Act (for short 'the Act') permitting the appellant Insurance Company to.contest the claim on the grounds which are available to the owner/Insured. 4. Shri Dashrath 6upta, learned counsel for the appellant would submit that in the instant case the claimants being parents, the multiplier of 16 has wrongly been applied by the learned Tribunal while assessing the compensation and therefore, the appellant/Insurance Company is entitled to file this appeal even without obtaining permission under Section 170 of the Act. Shri 6upta,learned counsel for the appellant further submitted that the Supreme Court in the case of New India Assurance Company Ltd. Vs. Shanti Pathak (Smt) and Others; reported in (2007) •10 SCC 1 reduced the amount of compensation although the appeal by Insurance Company was preferred without obtaining permission under Section 170 of the Act and for this, he has drawn the attention of this Court towards para 4 and 6 of the Judgment of the Hon'ble the Supreme Court which reads as under: "4. Before the High Court it was contended by the appellant that the multiplier to be adopted is to be determined on the age of the claimants and not J^ . ^—<-^^ Y •• •" .> on the age of the deceased, which was to be taken as the basis for working out the compensation. The High Court did not find any substance in this plea. It was held that no permission had been granted to the insurer to contest its claim. It was submitted that it is a ctear case of contributory negligence and the quantum of compensation should be suitably divided. The High Court did not find any substance in this plea also. 6. Considering the income that was taken, the foundation for working out the compensation cannot be faulted with. The monthly contribution was fixed at Rs.3500. In the normal course we would have remitted the matter to the High Court for considerationon the materials placed before it. But considering the fact that the mater is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased was dbout 65 years at the time of the accident and age of the father was more than 65 years. Taking into account the monthly contribution at Rs.3500 as held by the Tribunal and the High Court, the entitlement of the claim would be Rs. 2,10,000. The same shall bear interest © 7.5% p.a. from the date of the application for compensation. Payment already made shall be adjusted from the amount due." 5. The issue drises for determination in this case is whether the appellant/Insurance Company can prefer an appeal challenging the quantum of compensation without obtaining permission under Section 170 of the Act to defend the case on the grounds which are available to the owners/Insured. 6.^ The law in this regard is well settled that it is not permissible for the insurer to file an appeal questioning the quantumof compensation as well as the findings as regards the negligence or contributory negligence of the offending vehicle without obtaining permission under Section 170 of the Act. rl£?: 7. The Supreme Court in National Insut'ance Co. Ltd. Chandigarh Vs. Nicolletta Rohtagi and others; reported in (2002) 7 SCC 456 has observed in para 31 as under: "31. We have already held that unless the conditions precedent specified in Section 170 of the 1988 Act aresatisfied, an insurance company has no right of appeal to challenge 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 oh merits, in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filin9 appeal on grounds specified in sub-section (2) of Section 149 of the 1988 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 res 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." 8. I have carefully gone through the judgment in case of New India Assurance Company Ltd. Vs. Shanti Pathak (Smt) and Others (supra), nowhere it has been held by the Supreme Court that Insurance Company can file an appeal questioning the quantum ef compensation even without obtaining permission under Section 170 of the Act. Therefore, the submission made by Shri Gupta has no merit. 9. In view of the settled position of law that it is not permissible for the Insurance Company to fiie an appeal questioning the quantum of compensation in the absence of permission under Section 170 of the Act, the Instant appeal has no merit and the same deserves to be dismissed and is hereby dismissed at admission stage. 10. No order as to costs. Sd/- N.K. Agrawal Judge Kvr