^ £/' i.;. 1 ^ 'TA / "'-r^-x^.-^ •.;--f';~-:\/.';-'7l-;r :— "-."'•7 p-^ii-^ "r il-wii' " ^ HtGH COURT OF CHHATTISGARH AT BILASPUR I.A. No. 977 of 2005 APPELLANT The New India Insurance Co. Ltd. VERSUS RESPONDENTS : Kanhaiya Lal Sahu & others & I.A.No.1062 of 2005 Kanhaiya Lal Sahu VERSUS RESPONDENTS : Lakhan Lal Sahu & others AWARD Forconsideration^? 09.2011 Sd/- N.K. Agrawal Judge 'ble Shri Raieev Gupta. J £X^/T&-^- Sd/- Ouef Justice Postfor^.09.2011 Sd/-~^ '». Judge 2,^.09.2011 HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT RESPONDENTS !.A. No. 977 of 2005 The New India Insurance Company Limited Through : Branch Manager, Parakh Bhawan, Station Road, Durg, Teh. & Distt. Durg (CG). Versus Kanhaiya Lal Sahu S/o Late Sadaram Sahu, Age 63 years, Village Jamgaon, PS Ranchirai, Teh. Patan, Distt. Durg (CG). Lakhan Lal Sahu S/o Bhagwan Singh, aged about 30 years, Vill. 8- Post Khorpa, PS Abhanpur, Dis Raipur (CG). Gurumukh Singh S/o Singara Singh (dead) Randhava, Aged about 45 years, R/o Village Lamkeni, PS Abhanpur, Distt. Raipur (CG). a. Smt. Kulwant Kaur Randhava W/o Shri Gurumukh Singh Randhava, Age 43 years (Wife). b. Harpreet Singh S/o Late Gurumukh Singh, age 20 years (Son). c. Heera Singh S/o Late. Gurumukh Singh, age 26 years (Son) All a to c are R/o Vill. Lamkeni, PS Abhanpur, Distt. Raipur (CG). 3. 4. 5. 6. The Oriental Insurance Company Limited Through : Branch Manager, Malviya Nagar, Durg. Bhupendra Singh Sahu S/o Late. Kunjbihari Sahu, aged about 30 years, R/o Vill. Jamgaon (R), PS Ranchirai, Patan, Distt. Durg. Maniram Yadav S/o Manrakhan Lal Yadav, aged about 32 years, R/o village Vill. Jamgaon (R), PS Ranchirai, Teh. Patan, Distt. Durg (CG) (Owner ofMaruti Van No. MP- 24- G-1358) Present : Shri Sri Kumar Agrawal, Sr. Advocate with Shri Anand Gupta Advocate for the appellant. Shri CR Sahu & Shri CK Sahu, Advocates for respondent No. 1. Shri SP Sahu, Advocate for respondent No.4. I.A, No. 1062 of 2005 .-.\ APPELLANT RESPONDENTS Kanhaiya Lal Sahu S/o Late Sadaram Sahu, Age about 63 years, R/o Village Jamgaon, Teh. Patan, Distt. Durg (CG). Versus 1. Lakhan Lal Sahu S/o Bhagwan Singh, age about 30 years, Driver of the Matador MP-23-DA-4012 R/o Village Khorpa, Abhanpur, Distt. Raipur (CG). 2. Gurumukh Singh S/o Singar Singh Randhava, Aged about 45 years, R/o Village Lamkeni, Abhanpur, Distt. Raipur (CG). 3. The Oriental Insurance Company Limited Through : Divisional Manager, Division Office Malviya Nagar, Distt. Durg (CG). 4. Bhupendra Kumar Sahu S/o Late Kunjbihari Sahu, age about 30 years, R/o Jamgaon, Tehsil Patan, Distt. Durg. 5. Maniram Yadav S/o Manrakhan, age about 32 years, R/o Jamgaon, Teh. Patan, Distt. Durg (CG) (Owner of Maruti Van No. MP- 24-G-1358) 6. The New India Insurance Co. Through Branch Manager, Parakh Bhawan, Station Road, Durg. APPEAL UNDER SECTION 173 OF MOTORVEHICLESACT, 1988 DB: Hon'ble Shri Rajeev Gupta, CJ & Hon'ble Shri N.K. Agarwal, J. Present : Shri CR Sahu and Shri CK Sahu, Advocates for appellanVclaimant. Shri SP Sahu, Advocate for respondent No.3. Shri Srikumar Agrawal, Sr. Advocate with Shri Anand Gupta, Advocate for respondent No. 6. AWARD (Delivered on^g /09/2011) Per: N.K. Agarwal, J 1. Being aggrieved and dissatisfied with the findings regarding negligence of driver of Maruti Van bearing registration No. MP- 24-G-1358 in the motor accident dated 22.06.2002, MA No. 977/05 has been preferred by the appeilanfNew India Insurance Company Limited. MA No. 1062/05 has been preferred by the appellant/claimant seeking enhancement of compensation awarded by the Tribunal in the above case. 2. As both the appeals were filed against the award dated 08.04.2005 passed by the Ist Addl. Motor Accident Claims Tribunal, Durg (for short 'the Tribunal') in claim case No. 109/04, both the appeals are being disposed of by this common award. 3. As against compensation of Rs. 13,03.477/- claimed by the appellanVclaimant by filing application under Section 166 of the Motor Vehicles Act, 1988 (for short 'the MV Act'), for the injuries sustained by him in the motor accident on 22.06.2002, the Tribunal awarded a total sum of Rs. 3,39,105/- along with interest @ 9 percent per annum from the date of application till its actual payment. 4. The Tribunal, on a close scrutiny of the evidence !ed, held : the accident had occurred due to rash and negligent driving of drivers of Matador bearing registration No. MP-23-DA-4012 and Maruti Van bearing registration No. MP-24-G-1358; the drivers of Matador and Maruti Van have contributed to the cause of "%. ^yM% ^y &? v/^ 6. 7. accident to the extent of 67% and 33% respectively; appellanfNew India Insurance Company i.e. insurer of Maruti Van and the Oriental Insurance Co. Ltd. i.e. insurer of Matador liable for payment of compensation as they could not establish violation of any poiicy conditions; awarded a total sum of Rs. 3,39,105/- as compensation to the appellant/ciaimant along with interest @ 9 percent from the date of application till its actual payment. Shri Srikumar Agrawal, learned Senior counsel appearing for the appellant/The New India Insurance Co. Ltd. would submit the Tribunal has erred in holding the driver of Maruti Van contributed to the cause of negligence to the extent of 33 percent and thereby fastening liability of payment of compensation upon the New India Insurance Co. Ltd. On the other hand, Shri CR Sahu and Shri CK Sahu, learned counsel appearing for the claimant would submit the Tribunal has erred in awarding low amount of compensation on the heads of medical expenses and loss offuture income, and thereby fallen in error in awarding low amount ofcompensation. We have heard the counsel appearing for the parties and perused the record ofTribunal including award impugned. Indisputably, the appellant/The New India Insurance Co. Ltd. (in MA No. 977/05) has not obtained any permission under Section 170 of MV Act from the Tribunal in order to contest the claim on the grounds which are available to the person against whom the claim has been made. 9. !n the above appeal, the appellant/The New India Insurance Co. Ltd. wants to challenge the findings regarding negligence of driver of Maruti Van bearing registration No. MP-24-G-1358. 10. Section 170 ofthe MVAct reads as under: "170. Impleading insurer in certain cases- Where in the course of any inquiry, the Claims Tribunal is satisfied that- i. there is collusion between the person making the claim and the person against whom the claim is made, or ii. the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub- section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made." 11. The aforesaid provision provides that in course of inquiry of a claim if the Tribunal is satisfied that there is a collusion between the claimant and the insured or the insured fails to coniest the claim, the Tribunal for reasons to be recorded in writing, may direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any ofthe grounds that are available to the person against whom the claim has been made. 12. The Supreme Court, in its various pronouncement has taken a consistent view that the insurer has no right to file an appeal to \/ challenge the quantum of compensation or findings of the Tribunal as regards the negligence or contributory negligence of the offending vehicle. 13. The Supreme Court in case of National Insurance Co. Ltd. Chandigarh v. Nicolletta Rohtagi and Others has observed in para 31 & 32 as under: "31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act are safisfied, 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 appiication for permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-sections (2) of Section 149 of 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 proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award. 32. For the reasons, our answer to the question is that even if no appeal is preferred under Section 173 of MV Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questipning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle." \' 2002 (7) SCC 456 14. In view of the above, there is no iota of doubt in our mind that MA No. 977/05, filed by the insurance company/The New India Insurance Co. Ltd. challenging the findings regarding negligence ofdriver of Maruti Van bearing registration No. MP-24-G-1358, is not maintainable since no permission has been obtained under Section 170 of the MV Act. 15. Now we shall examine sufficiency or otherwise of the arr ''unt of compensation awarded by the Tribunal in claim case No. 'i39/04. 16. The claimant/Kanhaiya Lal Sahu, aged about 64 years, sustained multiple injuries including fracture offibula and femur bones is not in dispute. As per disability certificate (Ex. P/12), due to fracture in left leg the claimant sustained disability to the extent of 60 percent, but it is not clear whether the above disability was permanent or temporary. The certificate has not been issued by the medical board. According to the statement of Dr. APS Dubey (AW-3) he issued the above certificate by seeing the X-ray taken at pre-plaster stage. As per statement of Sohan Lal (AW;2) i.e. Accounts Officer, Chandulal Memorial Hospital, Bhjlai, the claimant has paid Rs. 1,12,948/- and Rs. 28,254/- towards medical expenses. The appellant is a retired person. 17. The Tribunal awarded Rs. 2,34,105/- towards medical expenses as claimed by the appellanVclaimant; Rs. 50,000/- towards pain and suffering, Rs. 25,000/- towards loss of income during treatment and Rs. 30,000/- for permanent disability, and thus, awarded a total sum of Rs. 3,39,105/- as compensation to the claimant/Kanhaiya Lal Sahu for the injuries sustained by him in the said accident. 1\J iJW 18. The above amount of compensation of Rs. 3,39.105/- awarded by the Tribuna!, when examined in the light of above broad features of the case, in our considered opinion, is adequate and there is no scope of enhancement in the amount of compensation whatsoever. 19. For the forgoing, both the appeals i.e. MA No. 977/05, filed by the New India Insurance Co. Ltd., and MA No. 1062/05, filed by the claimant-Kanhaiya Lal Sahu, being devoid of substance are liable to be and are hereby dismissed. No order asto costs. Sd/- Chlef Justice Sd/- N.K. Agrawal Judge Sahu