.^.. •^^•^^ ^L^^^^'sfSfS^!iSss3SsSSSS^SS HIGH COURT OP CHHATTISGARH, BILASPUR DB: HON'BLE I.M. QITDDUSI & HON'BLE N.K. AGARWAL, JJ M.A(C| No.S9 of 2008 Vs. APPEARANCE: Mr. Dashrafh Gupta, counsel for the appeUants. Mr. A. K. Athaley, counsel for respondent no. 1 None for respondents 2 & 3. Fer I.M, QUDDUSI. J JUDGMENT (OR&Lt (27.10.2010) 01. I.A.Np.6/2010 This is aa application for amendinent ui inenio of appeal. AppUcation is allowed. The proposed aniendnient shall form. part ofmeino ofappeal. 02. Heard finaUy. 03. This appeal has been filed agamst fhe award dated 29.08.2007 passed by IV Addl. Motor Accident CIauns Tribmial, Raj^arh (C.G) iu Claim Case No.07/2007 awardiag a coinpensation of Rs.17,60,531/- alonp-with iaterest @ 7.5; APPEI-LANT The United India InsuTance Company Limited, Through: Branch Manager, Branch Of&ce, In 6-ont of GopiTatkies, Ra^arh (C.G). RESPONDBNTS 1. Brij Bhushan Jagatraoika, s/o Late Ram Gopal Jagatramlca, aged about 55 years, r/o Soufh Chakradbar Nagar, Raigarh, Distt. Raigarh (C.G). 2. Jogendra, s/o Bodhram, aged about 23 years, R/o viUage Baiiuara, Talislul & Distaict Ra^arh (C.G) Drlver of the Tractor 3. Ramavtar Agrawal, s/o Paimalal Goel, ^ed 52 years, R/o viUage MahapaUi.Tahshil & District Raigarh (C,0) -_Owner \ per nTiTinm froin the date of fhe claim. petition tiU the realization. 04. Brief facts of fhe case as aUeged by the coinplauiaat are fhat on 23.02.2003 at about 10.30 p.m., complaiaant Brijbhushan Jagatramka was comiag to Raigarh fi-om village Mahapali by his Fiat Car bearing Regn.No.O.S.F. 3553. At that tLme on the way at vUl^e Chidkapani one Tractor bearing Regn. No.O.R.17-A/2041 aad TroUy Regn. No.26- E/7108 which was goiag towards Raigarh dashed the Fiat Car of fhe Coniplaixiant, as a result of which, he sustaiaed iajuries on right hand, face, nose, eyes, Ups and other parts of fhe body. He had uadei^one treatiuent by various doctors/hospitals namely Dr. M.S. Dase, Dr.A.M. Gupta, Dr. N.C. Naade, Dr. A.K. Trild, Dr. Lokesh Shadangi, M.M.I. Raipur aad Bonibay Hospital, Boiubay. He stffl undei^oes treattuent by Dr.Rodra Agrawal aud others. It is aUeged that on account of irijurie's received by the couiplainant on various parts of his body, inany fi'actures were caused on his right haud, his face was also defomied and there was loss of sight. 05. The Tribunal has fi-aiued the uiain issue that whether non- applicaut no.l while driviag the Tractor bearmg Regn. No. O.R.17-A/2041 rashly and negligenfly cominitted the accident as a result of which Brijbhushan Jagatramka sustained serious injuries aad his right haad has becoine permauently disabled. The finding has been given iri affirmati.ve on fhe basis ofevidence came on rccord. There is no scope to reverse the said findiag which is proper. ^ \, ~v. -fezs'y ^^ s^ ''•'•^32^^^' 06. Furfher learaed couiisel for the appellaat has subnutteB-feat application for permission u/s 170 ofthe Motor Vehicles Act was inoved but fhe same remaiued undecided tiU the date of the final award. 07. In this regatd, fhis Court while disposiag of Misc. Appeal (C). No. 121 of 2008 (National Insuraace Coiupauy Ltd -vs- Sint. Neetu' and others) on 18th February, 2008 foUowed the dictum of the Apex Court ia case of National Insurance Co. Ltd. Vs. Nicoletta Rohtag? aad others reported In 2003 (3) TAC 293 (SC) and reiterated that it is condition precedent before grantuig permission u/s 170 ofthe Act for the Tnbunal to record a findiag fhat the owner of fhe vehicle eifher was not contestiug fhe claun or was iu coUusion wifh the clamiants. As the owner of the vehicle veheinently contested fhe claim, the Tribuaal couM not have recorded a fiadiag that fhe owner of the vehicle either was not contesting fhe claun or was in collusion with the claiinaats. 08. Furfher fhe Insurance Coiapauy was solely responsible to see that its application should have been decided but ia fhe iastaat case, it faUed to press the appUcation and as such if an appUcation was not pressed durm.g the entire pendency of fhe claun petition, it is not open &r the Insuraace Coinpany to plead that its application u/s 170 of fhe Act to contest reaiaiaed undecided. The pizrpose offiling ofapplication u/s 170 ofthe Act is fhat the iasurer luay get fhe right to contest but in this case, fhe Tribunal has crossed fhe stage of fiUng . of written Stateinent, fhereafter started recordiag evidence aad tiU fhea the iasurer did not press the application. Ifthe insurer was not cautious fipoin ftie veiy begmniag that it should have obtaiued pernussion by pressiag application which was not pressed aud was not having knowledge about the proceediags of the Court after conclusion of the claiiu case, fhen it is not open for the iasurer to say fhat its appUcation seekiag permission u/s 170 ofthe Act reiaained pendiag. 09. In view of the above, fhe contention raised by t}ie leamed counsel for the appeUant that the application of the Insurance Coinpaiiy for permission u/s 170 remamed undecided aad thus it caa challenge fhe award on fhe question ofquantuin is not sustainable, 10. In the result, the appeal is disinissed as not inauitainable iu so &r as it relates to chatlenge on fhe poiat of quautuia aad even on inerits also, the appeUant has no case. 11. The appeal is fh.erefore dismissed. No order as to cost(s). Sd/- I.M.Quddusi Judge Sd/- N.K-Agrawal Judge Rao \