c^-^ IN THE HIGH COURT OF JUDICATURE r/- AT BILASPUR (C.G.) iiyis'JOH1 Ss": Miscellanious Appeal fONo- /^ ^3 /2009 APPELLANT Non Applicant 3 ...^^ ^^^ ,*k* ,ail The Oriental Insurance Go. Limited, Parmanand Bhawan Rajendra Park Chouk, Durg Distt.- Durg (C.G.) Through Divisional Manager, Divisional Office Durg, Durg (C.G.) ^ v« o*«*-" VERSUS RESPONDENTS :1. SmtKhairunnisha W/o late shr <> Applicants (? > Jamir Khan,aged about 32 year, 2. Sharfaraj Khan S/o late Jamir Khan, aged about 05 years, 3 Sahjad Khan S/o late Jamir Khan, Non Appljcant 1 ^ fv Non Applicant2 ^ aged about 04 years, Respondent No. 2 and 3 are Minor Throuth Mother Smt.Khairunnnisha' All R/o Ganesh Ward Mukam & Post Sakoli,Tah.Sakoli,Dist.Bhandra(M.H.) 4. Raju S/o Lakhan Nishad, aged about 26 years, R/o Ganesh Vill.Chandandih, Amanaka Raipur, Tah. And Dist-Raipur (C.G.) 5. Gurdeep Singh Garcha S/oT.S.Garcha R/o Garcha Road Lince, Tatibandh Raipur, Tah. And Dist.Raipur (C.G.) MISC . APPEAL ( CLAIM ) UNDER SECTION 173 OF MOTOR VEHICLE ACT. 1988 1 Kt HiGH COURT OF CHHATTiSGARH AT BILASPUR DIVISiON BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR.NAWAL KISHORE AGARWAL. Jj. Appellants Respondents M^.A.rd No.1213/2009 The Oriental Insurance Co. Ltd Vs Smt. Khairunnisha & others Present: Mr. Vipin Tiwari, Advocate for the appeiiant. Mr. Gautam Khetrapal, Advocate for the respondent No.1 to 3. None for respondent Nos.4 & 5 though ssrved. ORDERtOrall {08th September, 2010) i. Quddusj, J; 1. Heard. 2. The appellant-lnsurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 15.5.2009 passed by the learned 11th Additional Motor Accident Claims Tribunal, (FTC), Durg (CG) (for brevity 'the claims tnbunal') in Claim Case No.55/2008 awarding compensation to the tune of Rs.11,73.000/- to the claimants. 3. Brief facts of the case are that on 13.11.2007 the d.eceased Jamir Khan, who was driver of truck bearing registration number CG04-J-9310, was coming from Devri (Maharasthra) to Bhilai. However, at about 5.30 a.m. in the morning, a vehicle bearing reSistration number CG04-J-0157, driven rashly and negiigently by non-appiicant No.1, dashed the vehicle of the deceased as a result of which he sustained injuries on various parts of the body. He was taken to the Government Hospital, .Durg for treatment where he died. Report of the inciclent was lodged in the Police Check-post Anjora of Police Station Pulgaon upon which the offence under Crime No.371/07 was registered against the non-applicant N6.1 and after completion of investigation, the charge sheet was fiied in the Court of the le^rned Judicial Magistrate 1sl Class, Durg. The claimants, on account of death of said Jamir Khan, have ciaimed an amount of Rs.18,32,000/- on various heads as compensation. 1 I 4. The claims tribunal vide impugned award dated 15.5.2009 allowed the claim petition of the ciaimants and awarded a sum of Rs.11,73,000/- to the claimants as compensation aiong with interest @8% per annum from the date of fiiing of the claim petition till the date of actual payment. 5. Before entering into the merits of the case, Mr. Khetrapal, learned counsel for the respondents No.1 to 3, relying on the judgme.nt of the Hon'ble Apex Court in the matter of National Insurance Company Ltd. Vs. Nicoiletta Rohtagi and others reported in 2003 (3) TAC 293 (SC), submits that the appellant insurance company has filed the instant appeal challenging the quantum of compensation awarded by the claims tribunal, however, permission under Section 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 appeliant-insurance company. 6. In the matter of Nicolletta Rohtagi (supra), the Hon'bie Supreme Court has held thus:- "31. We have aiready held that unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, Insurance Company has no right of appeai to challenge the award on merits............." 7. In view of the above settled position, the instant appeal on behalf of the appellant insurance company in absence of the . permission under Section 170 of the Act, 1988 is not maintajnable and the same is dismissed as such. Roshan/- Sd/- I.M.Quddussi Judge Sd/- N.K.Agarwal Judge