^ .p HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. HGN'BLE SHRS RL JKANWAR, J. MISC.APPEAL (0 No. 1S85 of 2009 APPELLANT insurer The Oriental insurance Company Limited through Branch Manger, Orientaf Insurance Company, Ambikapur at Sarguja, District Sarguja (Chhattisgarh) RESPONDENTS CLASMANTS L- Versus 1 Smt Kiran Devi, W/o late Shri Ramakant Tiwari, aged about 45years 2 Gorelal Tiwari, S/o late Shri Ambika Prasad Tiwari, aged about 75 years 3 Sandeep @ Sonu S/o late Shri Ramakant Tiwari, aged about 22 years 4 Ruhi, D/o late Shri Ramakant Tiwari, Aged about 19 years 5 Antima, D/o late Shri Ramakant Tiwari, Aged about 18 years 6 Priyanshu, S/o late Shri Ramakant Tiwari, Aged about 10 years. 7 Smt Abha Devi, W/o Shri Kesarinandan, aged about 26 years. 8 Smt Sudha Devi, W/o Shri Dhanand Choubey, Aged about 23 years Respondents No. 5 & 6 are through Naturai Guardian Mother Smt Kiran Devi, respondent No.1 R/o Kundeli, P.S. Patnajahsil Baikunthpur, Distrcict Koriya (C.G.). Respondent No.7 R/o Ambikapur, Distrlct Sarguja (C.G.). Respondent No.8 R/o Village Barganwa, P.S. Darima, District Sarguja (C.G.). 9 Shiv Kumar @ Deenbandhu, S/o Shi Sonsai Kewat, Aged aou 40 years, Occupation - Driver, R/o Gram Mahora, Thana - Patna, Tahsil & District - Korea (CG) Driver 10 Vedant Tiwari, s/o late Shri Rajendra Tiwari, Aged about 50 years, R/o Gram - Kundeli, Than -Patna, Tahsil & District - Korea (CG)Owner Misc. Appea! under Section 1 73 of the Motor Vehicles Act. 1988 Present: Shri Abhishek Sinha and Shri G.S. Patel, learned counse! for the appellant. ORDER (15tn February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J. By allowing IA.No.02/2009, the documents filed along with this application are taken on record. 2) Learned counsel for the appellants are heard on admission. 3) This is insurer's appea! against the impugned award dated 27J34.2009, passed by the Motor Accidents Claims Tribunal, Korea (Baikunthpur) (for short "the Tribunal") in Motor Accident Claim Case No.39/2008. L.. 4) The appellant/ Insurance has been directed by the Tribunal to pay a sum of Rs. 15,55,6247- as compensation along with interest @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment, for the death of deceased Ramakant Tiwari, an Assistant Teacher in Government School, in the motor accident on 01 .03.2008. 5) The Tribunal assessed the income of the deceased at Rs.14,352/- per month on the basis of the salary certificate (Ex.P/3 and P/4). The claimants' dependency was assessed at Rs.11,482/- per month and Rs.1,37,784/- per annum. By multiplying the annual dependency of Rs.1,37,784/- with the multiplier of 11, the compensation was worked out to Rs.15,15,624/-. By awarding further sum of Rs.40,000/- under other heads, the Tribunal awarded a total sum of Rs.15,55,624/-. 6) Shri Abhishek Sinha and Shri G.S. Patel, learned counsel for the appellant - Insurance Company fairly and frankly conceded that the appellant-insurance company in present appeal is challenging only quantum of compensation awarded by the Tribunal and application fiied by the appellant/ Insurance Company before the Tribunal under Section 170 of the Motor Vehicles Act was rejected by the Tribunal vide order dated 22.10.2008. 7) The Apex Court while considering permissibility of challenge by the insurer of the offending vehicle to the quantum of compensation awarded by the Tribunal, in absence of permission under Section 170 of the Motor Vehicles Act, in the fmwll9mwsygy^j^^. case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) observed in paras 31 & 32 as under:- "31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, 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 on 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 appiication for permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of 1988 Act. But such application for permission has to be bona fsde 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 Es open to an insurer to apply to the Tribunai for " . rectification of award. 32. For the reasons, our answer to the question 1s that even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of 1 ^ ^iiniii.rt1 a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negl'igence of the offending vehicle." 8) Now reverting to the present case, admittedly the owner and driver of the offending vehicle contested the claim before the Tribunal. The appellant/ Insurance Company could not demonstrate before the Tribunal that there was any collusion between the claimants and owner & driver of the offending vehicle. As such, the order passed by the Tribunal rejecting the appellant's application flled under Section 170 of the Motor Vehicles Act cannot be found fault with. 9) The appellant/ Insurance Company, in the absence of permission under Section 170 of the Motor Vehicles Act cannot be permitted to challenge the quantum of compensation in this appeal, in view of the above quoted dictum of the Apex Court in the case of National Insurance Co. Ltd. (supra). 10) As the appellant/ Insurance Company has not challenged the impugned award on any other ground, the appeal is liable to be dismissed and is hereby dismissed summarily. Subbu Sd/- Chief Justice Sd/- R.L. Jhanwar Judge