^ ^.^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M.AJC1 N0. /2010 APPELLANT: ^§l0!iBas^k •vr ^ 1; '^ Non- Applicant RESPONDENTS: Applicants 1. 2. > Non-Aoplicant No. 1 3. ^ ^ The New India Assurance Co Ltd. through Branch Office, second Floor, R.D.A. Building Raipur District Raipur (C.G.) VERSUS Smt. Bismat Bai Wd/o Late Horilal sahu aged about 50 years, House wife Nilkanth Sahu S/o Late Horilal Sahu aged about 30 years. Both R/o Village, Khamtarai Post, Gullu, P.S. and Tahsil Aarang, District Raipur (C.G.) Balram S/o Jiwanlal Dhruv aged about 35 years occupation, Driver, Non- Aoolicant No.2 4^ Mohanpal S/o Kunjram pal aged about 40 years Owner of Truck Both R/o Village, Paragaon, P.S. and Tahsil Arang District Raipur (C.G.) MEMORANDUM OF APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 ^. HIGH COURT OF CHHATTISGARH, BILASPUR DB: HON'BLE I.M. QUDDUSI & HON*BLE N.K. AGRAWAL, JJ MI8C. APPBAL (Cl No. 409 OF 2010 APPEARANCB: Mr. A. K. Athaley Patel counsel for the appellaiit. Mr, Vaibhav Govardhan, counsel for respondents 3 & 4. Per I.M. OUDDUSI. J ORDER (ORALI (22.09.2010) 1. This appeal has been filed by the Insurance Coiiipany against the quantum ofthe award dated 18.11.2009 passed by the Ist Addl. Motor Accident Claims Tribunal, Raipur, ia Claun Case No.42/02 and also on fhe ground fhat the driver of the offending vetdcle was not having valid and effective driving Ucense at fhe time of accident. 2. Before entering into the inerits of the case, Mr. Vaibhav Govardhan, learned counsel for respondents No. 3 & 4 relyiag on the decision of the Hon'ble Apex Comt in the matter ofNcstioned Insurance Compemy Ltd. Vs. Nicalletta Rohtagi and others reported in 2003 (3) TAC 293 (SC) subiaits that the appeUant inszirance corapany has filed the iastaat appeal chaUenging the quaatuin of coinpensation APPELLANT The New India Assuraixce Co, Ltd. Vs. RESPOJWDENTS Snit, Bisniat Bai aad others APPBAL UNDBR SECTION 173 OF THE MOTOR VEHICLBS ACT. 1988 -?- •t^.^.W -'S ,-W^^.^W^»^^W^^W^ ^^^'^ awarded by the claiins tribunal, however, permission u/ s 170 of the Act, 1988 to contest fhe claiai on all avaUable defences was not granted to the appellant Insurance Coiapany and this fact has not been disputed by the learned counsel for the appeUaat insurance Coinpaay. In the said case, HonT3le Supreiae Coiut has held vide para 31 fhus : We have already held that unless the conditions precedent speci&ed in section 170 of 1988 Act is satisfied, Insnrance Corapany has no right of appeal to challenge the award on inerits......./' 3. Here in the instaat case, there is no permission u/s 170 of the Motor Vehicles Act aad therefore, the Insurance Company cannot file the appeal ia absence of such pemiission chaUenging tlie quantuni fixed in the unpugned award. 4. Learned counsel for the appeUaat furth.er submits that the driver of the vehicle was not having valid aad driviiig license to drive the vehicle in question which was a traasport vehicle. On the ofher hand learned counsel for respondents 3 & 4 submits that no one has been produced by fhe Insiirance Coinpauy in the witness box in support of their plea and even they did not take care to get the iasurance poUcy proved. S. It was the burden of Insurance Corapany to prove that the driver was not having vaUd and effective dnvmg Mcense. In absence of such evidence produced by the Insurance Conipany ia support of its plea that the driver of the vehicle was not haviug valid drivmg Ucense, it cannot be said that ^ ^^' ;.^-.^^a% •?i ''^^''^ the iasurance Coinpaay was successful ia dischargiag its burden of proof 6. In view of the above discussion, the appeal challengmg quantiim in absence of permission u/s 170 of the Motor Vehicles Act, 1988 is not laauitamable and even on inerits also ia absence of aay evidence regarding validity of the driving Ucense, the appeal deserves to be disimssed. 7. In the result the appeal is disinissed. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- N.K.AgarwaI Judge Rao