-Sl HIGH COURT OF CHHAmSGARH AT BILASPUR M APPELLANT (NON-APPLICANT No. 3.1 RESPONDENTS (APPLICANT No. 11 (Applicant No^2) (NON-APPUCANT No. 1 (NOiN-APPLICANT N0.21 .A. No.177/2004 United India Insurance Company Limited, through its Divisional Manager, Divisional Office Main Road, Korba, Tah. & Dist. Korba (CG) Versus . Arun Kaushil, aged 31 years, S/o -Shri N.R. Kaushil Smt. ChandraMa Kaushil, aged 26 • years, W/o Shri Arun Kaushil Both are resident of T.F.-l-A, near Gajanan, Sai Mandir, Budhwari, Bazar, Korba, Tah. and Distt. Korba (CG) Aas Mohammad, age 24 years, S/o Shrt Abdul Rahman, R/o Bailgadi Nala, Balco Nagar, Tahsil and District Korba (CG) Smt. Indujoshi, age 34 years, W/o Shri Rajkumar Joshi, R/o MIG/121, Rajendra Prasad Nagar, Korba (CG) SB:- Hon. Shri N.K. Agarwal, J. PRESENT Shri Dashrath Gupta, Adv. for the appellant. Shri H.V. Sharma, Adv. for respondents No. 1 and 2, None for respondents No. 3 and 4, through served. ORAL ORDER (5-4-2010) Per N.K. Agarwal, J 1. This appeal is filed by the appellant/Insurance Company agamst the award dated 7-11-2003 passed in Claim Case No. 66/2002 by IIIrd Additional Motor Accident Claims Tribunal (FTC), Korba. 2. Brief.facts ofthe case are as under:- / • 3. On 23-9-2001 Ku. -Ankur ali.as Arupanku Kaushil met with an accident withMini Bus No. CG-12/9801 being driven by respondent No. 3, owned by respondent No. 4 and insured by the appellant. In the said accident, said Ku. Ankur succuinbed to the injuries sustained in the said accident. -,. The claimants have preferred claim application under ^ ^vq/ Section 166 of the Motor Vehicles Act, 1988 (briefly, the Act') claiming Rs. 9,35,000/- as compensation for the death of deceased in the said accident. 4. The appellant/Insurance Company appeared in the case, filed its written statement and denied its liability to pay compensation by taking a specific defence that the driver of fhe offending vehicle was not holding effective and valid driving licence. 5. Learned Tribunal on a ctose scrutiny of the evidence led, material placed and submissions made held respondent no. 3 responsible for the saici accident; assessed compensation payable as Rs. 2,25,000/-, held the appellant/Insurance Company liable for its payment to the claimants. 6. Shri Dashrath Gupta, learned counsel for the appellant would submit that the afnount awarded is shockingly on higher side, the driver of the offending vehicle was not holding effective and valid driving Ucence to drive Mini Bus at the time of accident and, therefore, leamed Tribunal has erred in fastening liability upon the Insurance Company for payment of aforesaid compensation. 7. On the other hand, Shri H.V. Sharma, learned counsel for the respondents No. 1 and 2 would contend that the amount awarded is just and proper, fhe Insurance Company has rightly been held liable for payment of compensation as the appellant/Insurance Company utterly failed to prove the defence taken by it and the amount awarded deserves to be upheld. s. " 8. I Ha^e heard leamed counsel for the parties and perused the impugned award- as well as record of the Tribunal. 9. Indisputably, no pennission has been taken by the appellant under Section 170 of the Act to contest the claim on all or any of the grounds that are available to the person against whom. the claim has been made. The Supreme Court in the case of National Insurance Co. Ltd. '•B!- 10. 11 Chandlgarh -v- Nicolletta Rohtagi and others reported in 2002(7) SCC 456 has held in para 31 and 32 as under:- "31. We have already held that urdess the conditions precedent specified in Section 170 of the 1988 Act are satisfied, an insurance compan-y has no right of appeal to challenge the award on rnerits. 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 clainz, 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 ivh.om a ci'aim has been. made. If permission is granted and the insurer is allowed to contest ths clairn. 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 ordy that part of the order while filing appeal on grounds specified in sub-section (2) ofSection 149 ofthe 1988Act. 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 concemed, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification ofaward. 32. For the aforesaid reasons, our answer to tke question is that even if no appeal is preferred under Section 173 ofthe 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 ofthe offending ve1w.de. In view of the above, since permission under Section 170 of the Act has not been obtained, the appellant cannot challenge the amount ofaward. -<~ So far as other question raised by the appellant/Insurance Company that the appeUant/Insurance Company is not liable to pay compensation in view of the fact that the driver of the vehicle was not holding effective and valid driving .licence at the time of accident is also sans merit. It ^eki.t, St ;:;• t^' 12, 13. is trite law that it is for the appellant/Insurance Company to prove the defence taken by it. Indisputably, the appellant had neither filed the policy of insurance along with its conditions nor adduced any evidence in support of the defence taken by it. In such circumstances, it cannot be said that the appellant has proved the defence taken by it. In view of above, I do not find any substance in the instant appeal preferred b^ the Insurance Company. The same deserves to be and is hereby dismissed. No order as to costs. Sd/- N.K. Agawal Judge cA