IN THE HIGH COURT OF CHI-IA’I‘TISGARI—I AT BILASPUR MISCAPPEAL No. $ L‘x /2004 \/ APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, / 1988 ARISING OUT OF‘ THE AWARD DATED 19/12/2003 PASSED BY THE TDIRD ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL. RAIGARH IN CLAIM CASE NO.6§’;02. (APPEAL VALUED AT Rs.4,‘/10/,000j-) (FIXED COURT FEE AFFIXED) APPELLANT / Oriental Insurance Com. Ltd. through /( INSURER) its Divisionm Manager, Division Office, Opposite High Court, Bilaspur (C.G.). Vs. RESPONDENTS : /\ (1. Shivnath s_/o Dharnidhar Patel, aged about 58 years. 2. Padmini W/o Shivnath Patel. a£€d about 53 vears. /§ A) J A“. 5 /£ (Both Agharia bv caste, occupation— <X \ 9f 9:. (CLAIMAN’I‘SI Agriculture, r/o village-Kandola, Police Station-Saria, Tehsil—Sarangarh, District Raigarh (CG) /.3. Peeku Das s/o Barui, aged Q8 years, r/o 32, Govind Awadhi Road, Calcutta-27, presantly residing at Lochan Nagar, Ntiar Degree College, Rajgarh (CG). (DRIVER) 4. Rajcndra smgh Bagga ago Mank Singh / Bagga, aged 3‘2 years, caste—Sikh, r] 0 Opposite Jail Phatak, Rajlaxmi Hotel, 74 Raigarh {CG}. (OWNER) _X HIGH COURT OF CHHATTISGARH BILASPUR HON’BLE LM. QUDDUSI 85 HON’BLE N.K. AGRAWAL, JJ MISC. APPEAL No. 324 OF 2004 DB: Vs. RESPONDENTS I Shivnath and others APPEAL UNDER QECTION 173 OF THE MOTOR VEHICLES‘ACT, 1988 APPEARANCE: Mr; Abhishek Sinha and Mr. Ghan Shyam Patel counssl for the appellant. Mr. Ashok Soni, counsal for mspondents 1 to 3. Mrs, Vikash Pradhan, counsel for respondent no.4. ORDER (ORAL; (13.09.2010) Per LM. QUDDUSI, J 1. This appeal has been filed by the Insurance Company against the quantum of the impugned award dated 19.12.2003 passed by the III Addl. Motor Accident Claims Tribunal, Raigarh in Claim Case No.69/O2 and also on the ground that the dn'ver Was not having valid and eEective dxiving license. Biief facts of the case are that on 01.04.2001 at about 18.30 hrs, when Rajkamal (deceased) was dnwng his Hero Honda Motorcycle beaiing Regn.No.C.G. 13/ 1417 a Jeep bearing Regn. No.M.P. 26-E/ 6074 which was being driven by respondent no.3 rashly and negligently dashed the‘” Hero Honda Motorcycle as a result of which, Rajkamal sustained selious injuries. He was brought by respondent no.3 to illage Kujedbari Where he died. v Th6 dsceased was earning Rs.2500/- by cultivation, electric wiring and T.V, repairs. The father of deceased Shiv Nath was examined as A.W.1. He deposed that his son was earning Rs.2500-3000/- per month. The non-applicants have not examined any witness in rebuttal. The Tribunal has taken into consideration the monthly income of the deceased as Rs.3000/-. After deducting 1]3‘d towards the personal expenses, the dependency was worked to Rs.2000/ - per month and Rs.24,000/- per annnm, The Tribunal opined that the age of the deceased was 25 years at the time of accident. Therefore, it has adopted the multiplier of l7. As such, by multiplying the annual dependency that is Rs. 24,000/— with the multiplier 17, the total dependency was worked out to Rs.4,08,000/- which the claimants are entitled to as compensation. In addition to this, the tribunal also granted Rs.2000/- towards funeral expenses and other heads. In this manner, the total compensation was worked out to Rs.4, 10,000/ - By this appeal med under section 173 of the M.V.Act,1988 the appellant Insurance Company has challenged the quantum of the award as also on the ground that the driver was not having valid and eifective driving license. Before entering into the merits of the case, Mr. Ashok Soni and Mr. Vikas Pradhan, learned counsel for the respondents Ielying on the decision of the Hon’ble Apex Court in the matter of National Insurance Company Ltd. Vs. Nicolletta Rohtagi and others reported in 2003 (3) TAC 293 (SC) submit that the appellant insurance company has nled the instant appeal challenging the quantum of compensation awarded by the claims tribunal, however, permission u/s 170 of the Act, 1988 to contest the claim on all available defences was not granted to the appellant Insurance Company and this fact has not been disputed by the learned counsel for the appellant insurance Company. In the said case, Hon’ble Supreme Court has held vide para 31 thus : . Rao '“" We have aheady héld that unless the conditions precedent specified in section 170 of 1988 Act is satisiied, Insmance Company has no right of appeal to challenge the award on merits... .." 6. Hen: in the instant case, there is no permission u/s 170 of the Motor Vehicles Act and therefore, the Insurance Company cannot hle the appeal in absence of such permission challenging the quantum iixed in the impugned award. 7. Further in absence of any evidence produced by the Insurance Company that the driver of the vehicle was not J; having valid driving license, it cannot be said that the insurance Company was successful in discharging the onus of proof. It was the burden of appellant to prove that the driver was not having valid and eifective driving license. 8. In View of the above discussion, the appeal in respect of quantum is not maintainable and on merits in absence of any evidence regarding validity of the driving license, the appeal deseIVes to be dismissed. 9. In the result the appeal is dismissed. No order as to costs. Sdl- l.M.Quddusi 1—r:::(/VJ/‘ Sd/- N.K.AGARWAL Judge Judge