IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Appeal from Order No. 231 of 2006 Date of decision: 3rd August, 2006 A.F.R. (Approved for Reporting) Not Approved for Reporting Date 3-8-2006 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTRANCHAL AT NAINITAL Appeal From Order No. 231 of 2006 The New India Assurance Company Ltd. having their registered and Head Office at New India Assurance Building 87, Mahatma Gandhi Road, Fort, Mumbai and their Divisional Office at Dehradun through its Divisional Manager, Astley Hall, Rajpur Road, Dehradun .............. Appellant Versus 1. Shri Dhanpal Singh Panwar s/o Shri Mor Singh Panwar, r/o Asha Singh Ka Plot, Chhiddarwala, Police Station Raiwala, District Dehradun. 2. Smt. Anusuya Devi w/o Shri Dhanpal Singh Panwar, R/o Asha Singh Ka Plot, Chiddarwala, Police Station Raiwala, Disrtrict Dehradun. 3. Km. Jasoda d/o Dhanpal Singh Panwar, R/o Asha Singh Ka Plot, Chiddarwala, Police Station Raiwala, Disrtrict Dehradun. 4. Master Manoj s/o Dhanpal Singh Panwar, R/o Asha Singh Ka Plot, Chiddarwala, Police Station Raiwala, Disrtrict Dehradun. 5. Shri Dharmendra s/o Shri Raghuvir r/o Rajeev Colony, near Railway Mal Godown, P.S.Kotwali, District Haridwar ................. Respondents ............. JUDGMENT Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. RAJEEV GUPTA, C.J. (Oral) Sri V.K. Kohli, Senior Counsel with Sri T. Pande, Advocate for the appellant is heard on admission. 2. This is insurer’s appeal against the Award dated 28.01.2006 passed by Motor Accident claims Tribunal, Dehradun in Motor Accident Claim Case No. 208 of 2004, whereby the appellant Insurance Company has been directed to pay a sum of Rs. 2,25,000/- along with interest @ 6% per annum from the date of the claim petition i.e. 29.09.2004 to the claimants as compensation for the death of Km. Shaila daughter of respondents 1 and 2 and sister of respondents 3 and 4. 3. The claimants claimed compensation of Rs. 3,10,000/- for the death of Km. Shaila, aged about 13 years in the motor accident on 30.08.2004 when she was dashed by the offending vehicle – Tata Sumo bearing registration no. UA-12-0414 resulting in serious injuries to Km. Shaila, who succumbed to those injuries next day in the hospital. 4. The owner, driver and the insurer of the offending vehicle-Tata Sumo contested the claim. The owner and driver took the plea that the deceased girl herself was responsible for the accident whereas the insurer denied its liability to pay compensation to the claimants on the plea that the driver of the offending vehicle was not holding a valid driving license. 5. The Tribunal, on the evidence led by the parties, held that Km. Shaila died on account of the injuries sustained by her in the accident; the accident occurred due to rash and negligent driving of the driver of the offending vehicle-Tata Sumo; the driver was holding a valid driving license on the date of the accident; and the insurer of the offending vehicle- Tata Sumo was liable to pay compensation to the claimants. 6. The Tribunal following the dictum of the Apex Court in the case of Manju Devi Vs. Musafir Paswan 2005 (1) T.A.C. 609, Wherein compensation of Rs. 2,25,000/- was found to be just and proper for the death of a minor aged about 13 years, awarded compensation of Rs.2,25,000/- to the claimants. 7. Sri V.K.Kohli, the learned counsel for the appellant, vehemently argued that the Tribunal has erred in holding that the driver of the offending vehicle – Tata Sumo was holding a valid driving license on the date of the accident and in not deducting 1/3rd of the notional income of Rs. 15,000/- while computing the compensation awardable to the claimants. 8. Since the appellant-Insurance Company took the specific plea in their written statement that the driver of the offending vehicle Tata-Sumo was not holding a valid driving license, the burden was on the Insurance Company to establish that the license, a photo-copy whereof was produced before the Tribunal ( the original in all probability must have been seized by the police in the criminal case relating the accident) was fake. For that purpose the appellant Insurance Company could have got the license verified from the office of the Regional Transport Officer from where the license purports to have been issued. Since nothing admittedly was done by the appellant- Insurance Company in that behalf, we do not find any infirmity in the finding recorded by the Tribunal that the appellant - Insurance Company could not establish its defence that the driver of the offending vehicle- Tata Sumo was not holding a valid driving license on the date of the accident. 9. The appellant’s other submission that the Tribunal ought to have deducted 1/3rd of the notional income of Rs. 15,000/- as personal expenses of the deceased deserves an outright rejection as the same essentially relates to the quantum of the compensation awarded by the Tribunal and as such cannot be allowed to be raised by the appellant-Insurance Company in the absence of grant of permission under Section 170 of the Motor Vehicles Act which admittedly was never sought by the appellant Insurance Company. 10. The Apex court in the case of National Insurance Company Ltd., Chandigarh Vs. Nicolletta Rohtagi and others reported in (2002) 7 SCC 456, while considering the grounds available to the Insurance Company in the absence of permission u/s 170 of the Motor Vehicles Act, 1988, observed in paras 30 to 32 as under. “30. It was then urged that if there is a collusion between the claimants and the insured or the insured does not contest the claim and the Tribunal does not implead the insurance company to contest the claim on grounds available to the insured or the persons against whom claim has been made, or in such a situation when the insurer files an application for permission to contest the claim on merit and the same is rejected or where the claimant has obtained an award by playing fraud, in such cases the insurer has a right of appeal to contest the award on merits and the appeal would be maintainable. 31. We have already held that the unless the conditions precedent specified in Section 170 of the 1988 Act are satisfied, 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 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 application 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 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 proceedings and in such cases it is open to an insurer to apply to the Tribunal for rectification of award. 32. For the aforesaid reasons, our answer to the question is that even if no appeal is preferred under Section 173 of the 1988 Act by an insured against the award of 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 negligence of the offending vehicle.” 11. The above quoted dictum of the Apex Court fortifies our view that the ground relating to the non-deduction of 1/3rd of the income of the deceased from the notional income, cannot be allowed to be raised by the appellant Insurance Company as permission under Section 170 of the Motor Vehicles Act, to contest the claim on all available defences, was not granted to the appellant Insurance Company. 12. For the foregoing reasons, the appeal filed by the appellant- Insurance Company U/s 173 of the Motor Vehicles Act, fails and is hereby dismissed summarily. 13. Consequently, CLMA No. 4301 of 2006 also stands dismissed. (J.C.S. Rawat, J.) (Rajeev Gupta, C.J.) 03.08.2006 03.08.2006 A