FA/1535/2001 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1535 OF 2001 with CIVIL APPLICATION No.3798 OF 2001 For Approval and Signature: HONOURABLE MR.JUSTICE A. L. DAVE HONOURABLE MR.JUSTICE S. D.DAVE =============================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =============================================== NEW INDIA ASSURANCE CO. LTD. Versus NIRMALABA HARDEVSINH ZALA & Others. =============================================== Appearance : MR VIBHUTI NANAVATI for the Appellant. RULE SERVED for Respondents Nos. 1 to 7. None for Respondent No. 7.2.1 MS MEGHA JANI for Respondent No.8. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE S. D. DAVE FA/1535/2001 2/3 JUDGMENT Date : 06/05/2008 ORAL JUDGMENT : (Per : A. L. DAVE, J.) 1. This appeal arises out of a judgment and order rendered by Motor Accident Claims Tribunal (Aux.II), Kachchh, at Bhuj, in Motor Accident Claim Petition No.400, 1992, on 30.09.2000. The appeal is preferred by the insurer of the vehicle involved in the accident, challenging the award as being excessive. 2. The appeal by the insurance company is opposed to by the respondents on the ground that the insurance company has no right to challenge the award on merits in absence of an application under Section 170 of the Motor Vehicles Act being granted in its favour. 3. There is no dispute on the aspect that application under Section 170 of the Motor Vehicles Act was not preferred by the insurance company nor any order was passed under Section 170 of the Motor Vehicles Act by the Tribunal authorising the insurance company to contest the claim on merits, i.e. on all counts. If this is the situation, appeals by the insurance company alone would not be maintainable unless the appeals are preferred on any of the grounds stated in Section 149(2) of the Motor Vehicles Act. Differently put, an appeal on merit by the insurance company alone in absence of an order under Section 170 of the Motor Vehicles Act would not be maintainable. In this regard, we may refer to decision of the Apex Court in Shankarayya and Another v. United India Insurance Company and Another, (1998) 3 SCC 140 and National Insurance Company v. Nicolletta Rohtagi and Others, 2002 ACJ 1950, wherein what is stated by us hereinabove has been laid down. FA/1535/2001 3/3 JUDGMENT 4. In light of the undisputed fact that there is no order under Section 170 of the Motor Vehicles Act passed by the Tribunal in any of the claim petition, this appeal preferred by the insurance company on merits would not be maintainable. We may add that it is not the case of the insurance company that it proposes to contest the award on any of the grounds narrated in sub-section (2) of Section 149 of the Motor Vehicles Act. The appeal, therefore, must fail and it is dismissed. 5. In view of the dismissal of the appeal, the Civil Application does not survive. It shall stand disposed of accordingly. Rule is discharged with no order as to costs. [ A. L. DAVE, J. ] [ S. D. DAVE, J. ] gt