IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 MACA.No. 2185 of 2006() ----------------------- OPMV.241/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/2ND RESPONDENT: -------------------------------------------------- THE NEW INDIA ASSUARANCE COMPANY LIMITED., THIRUVANANTHAPURAM NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS: PETITIONERS: ------------------------------------------------ 1. GANGA S. KUMAR, W/O.LATE SREEKUMAR, MADHAVA MANDIRAM, TC-29/344, PETTAH P.O., THIRUVANANTHAPURAM- 695 024. 2. KIRANKUMAR, S/O.LATE SREEKUMAR, DO. DO. 3. PRAVEENKUMAR, S/O.LATE SREEKUMAR, DO. DO. 4. SARASWATHY AMMA, W/O.LATE MADHAVAN PILLAI, DO. DO. R1 TO R4 BY ADV. SRI.C.K.THANU PILLAI SRI.T.K.SHAIJ RAJ SRI.S.S.HUSSAIN SRI.JINU K MOHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. Koshy & K.Hema, JJ. -------------------------------------- M.A.C.A. No. 2185 of 2006 --------------------------------------- Dated this the 26th day of February, 2008 Judgment Koshy,J. The insurance company challenges the award of the Motor Accidents Claims Tribunal to the legal heirs and dependants of late Sreekumar who died in a road traffic accident on 25.1.2001. He was riding a scooter bearing registration No.KL 01/D 5715. According to the claimants, he was knocked down by a motor cycle bearing registration No.KL 07/N 9036 which came from the opposite direction and accident occurred due to his negligence and he succumbed to the injuries on 30.1.2001. First petitioner is the wife, petitioners No.2 and 3 are his children and fourth petitioner is the mother of the deceased. First respondent owner-cum-rider of the motor cycle contested the matter on merits. According to him, a K.S.R.T.C. bus hit the scooter in which the deceased was riding and the scooter rider lost control and the scooter hit the motor cycle and the accident occurred. According to him, he was not negligent. The insurance company filed a petition under section 170 of the Motor Vehicles Act for contesting the case on all points. Since first M.A.C.A.No. 2185/2006 2 respondent was earnestly contesting the matter, the petition under section 170 was dismissed by the tribunal by a detailed order. That has become final. According to the insurance company even though Ext.A1 F.I.R. was registered against the first respondent and Ext.A8 final report was filed, first respondent contested the matter in the High Court contending involvement of a K.S.R.T.C. bus and this court ordered re-investigation in the matter. So, he was diligently prosecuting the matter and he was not colluding with the claimant. PW1, an alleged eye witness, deposed before the tribunal that the accident occurred due to the negligence of the rider of the motor cycle only. The tribunal found that, at the maximum, order of re- investigation shows that the bus also might have involved in the accident, but, accident occurred due to the negligence on the part of the first respondent. The tribunal, after having satisfied that the accident occurred due to the negligence of the first respondent and second respondent insurance company was directed to deposit the amount and insurance company filed the appeal saying that even though petition under section 170 was dismissed, it is an aggrieved party. Now, it is settled law that insurance company cannot file an appeal questioning the award passed by the tribunal on merit unless permission under section 170 is received by it. The Supreme Court M.A.C.A.No. 2185/2006 3 in National Insurance Co. Ltd. v. Nicolletta Rohtagi and others (JT 2002 (7) SC 251) held that no appeal can be preferred by the insurance company against the award on merit unless permission is obtained under section 170 of the M.V. Act. In the absence of permission, insurance company can take only defences mentioned in section 149 of the M.V. Act and cannot question the finding of negligence or quantum of compensation. In this case, the deceased was aged 47 and he was employed in the Housing and Urban Development Corporation and was getting a monthly salary of Rs.7,175/-. The tribunal, while calculating compensation, did not take into account the future prospects etc. Senior counsel for the appellant insurance company cited the decision in United India Insurance Co. Ltd. v. Jyotsnaben Sudhirbhai Patel and others ((2003) 7 SCC 212). In that case, the appeal filed by the insurance company was dismissed by the High Court. In the case decided by the Apex Court, petition under section 170 was allowed by the tribunal. High Court interfered with the order of the tribunal as the petition was allowed without any reasons. But, the Hon'ble Supreme Court found that if there was collusion between the person making the claim and the person resisting the claim, the insurance company can step in and seek permission of the tribunal to contest the matter. In that M.A.C.A.No. 2185/2006 4 case, driver and owner were not appearing and insurance company obtained permission under section 170 though order was not speaking. Hence, insurance company can contest the matter. Here, first respondent was contesting the matter with all vigor. There is no dispute of any kind against the order rejecting the application under section 170. The order rejecting the application under section 170 was also not challenged. In the absence of permission under section 170, appellant cannot file the appeal. Hence, the appeal is dismissed as not maintainable. J.B.Koshy Judge K. Hema Judge vaa M.A.C.A.No. 2185/2006 5 J.B. KOSHY AND K.HEMA ,JJ. ------------------------------------- M.A.C.A. No. 2185 of 2006 ------------------------------------- Judgment Dated:26th February, 2008