?M OY Aooellant Non-applicant H!GH COURT OF CHHARTTISGARH AT BILASPUR Coram:- H.on'bSe IVIr. Sunil Kumar Sinha & Hon'bSe Mr. R.N. Chancirakar. JJ IVi.A.C. No.960/2009 The Nationa! Insurance Company, Maiviya Nagar, Durg through the Assistant Manager, 3rd T.P. Ceil, The Nationa! Insurance Company Limited, B-1, Taha Complex, Priyadarshini Nagar, Bilaspur (CG) Versvs 1. Vinod, S/o Pardeshi Ram Yadav, aged about 23 years, Occupation-Driver, R/o Ward No.4, Brahman Para Bemetara, Tahsii and P.S.-Bemetara, District-Durg(CG) ResJNon- : 2. Naveen Jai, S/o Trilok Jain, aged appljcant about 20 years, R/o Jn front of Krishi Upaj Mandi, Bemetara, Tahsil and P.S- Bemetara, District Durg (CG) Mlsc. appeal under Section 173 ofthe Motor Vehides Act Resppndents Applicant Present: Shri S.C. Verma, counsei for the appeiiant. OraJ Order (Passed on 1st of December, 2009) Per Sunii Kumar Sinha. <J Learned counsel for the appeilant is heard on I.A. No.1/2009, which is an appiication for condonation of delay in filing theappeai. (2) -According to the office report, the appeal is barred by 159 days of limitation. (3) On due consideration of the submissions made by learned counsel for the appeilant, we are satisfied that the appellant has succeeded in showing sufficient cause for delay in filing the appeai. (4) I.A. No.1/2009, therefore, is ailowed. Delay in fiting the appeal is hereby condoned. (5) Learned counsel for the appellant is heard on admission. (6) This is an insurer's appeal against the award dated 4.4.2008 passed in claims case No.07/2007 by the Additional Motor Accidents CIa.ims Tribunal (F.T.C.) (henceforth the 'Tribunal'),Bemetara, Distt. Durg (CG) (7) The facts briefly stated are as under:- ^N»»». Respondent Vinod,S/o Pardesi filed claim petition under Section 166 ofthe Motor Vehicles Act, 1988 (henceforth the 'Act') claiming compensation of Rs.21,77,000/- on account of personal injuries sustained by him in the motor accident on 17.10.2006. On this day, his vehicle was dashed by offending truck bearing No.CG.04J/8411 on account of rash and negligent driving of the said truck by its driver. The respondent pleaded the he sustained many injuries including fracture of his right leg and he also suffered permanent disability to the extentof 35%. (8) The respondent examined himseif as A.W.1 and also examined Dr. Akhitesh Yadav, A.W.2 in support of his claim petition. The Tribunal allowed the claim petition and awarded a sum of Rs,5,43,000/- as compensation to the respondenVciairnant Vinod Kumar for the injuries sustalned by him In the motor -^"S^XTs^ ifes A :<a-^a ^ %J^ ^^^" 1 accident. The Tribunal also awarded interest @ 6% per annum from the date offiiing ofthe claim petition tili its realization. (9) Admittedly, permission under Section 170 of the Act to contest ciaim on all available defences was not granted to the appellant/ insurance company. In the absence of permission under Section 170 of the Act, it is not permissibie for the insurer of the vehicie to chalienge the quantum of compensation In view of the dictum of the apex Court In the case of Nationa! insurance Companv Limited Vs. Nicoletta Rohatai reported in 2003 (3) T.A.C. 293 (SC) wherein it was categoricalty held in para 31 & 32 as under:- We have already held that unfess the conditions precedent spedfied in Sectson 170 of the 1988 Act are satisfied, an insurance company has nq right of appeai to challerye the award on merits. However, in a situation where there is a coiluston bet/veen the claimants and the msured or fhe insured does noi contest the claim and, further, the Tribuna! does not implead the insurance compsny to contest the claim, in such cases it is open to an insurer to seek permission of the Tribunal to confesf the claim on the ground available to the snsured or to a person againsi whom a claim has been made. If permission /s granted and the insurer ss aibwed to contest the claim on merits, in that case it fe open to the insurer to fffe an appea! against an award on menis, sf aggrieved. Sn any case where an appl!caik>n for permissk>n is erroneously rejected the insurer can challenge only ihat part of the order while flUng appeal on grounds speci^ed in sub-^tion (2) ofSection 149 of the 1988 Act But such appHcatson for permlssion has to be bona fide and fi!ed at the stage when the insur^ is required to lead hls evktence. So far as obtasn'sng compensation by fraud by the daimant ss concerned, it is no longer res mtegra that fraud vitsates the enilre proceeding and in such cases it is open to an insurer to appty to the Tnbuna! for rectifioation ofaward. For the aforesaid reasons, our answer to the question is ihat even if no appeal is preferred under Section 173 of the 1988 Act by an mswed against the award of a Tribunal, it is not permissible for an insurer to ffie an appeal questioning the quantum of conipensailon as well as findings as regards negiigence or contributory neg!!gence of the oifending vehicie." (10) Since there was no permission under Section 1 70 of the Act, the Insurance Company cannot file this appea! challenging the quantum of compensation as is held by the Supreme Court. Moreover, that apart, we are satisfied that the compensation of Rs.5,43,000/- awarded by the Tribunal to the respondent/claimant on account of injuries sustained by him and permanent disability to the extent of 35% appears to be just and proper compensation In the facts and circumstances of the case. (11) The appeai filed by the insurance company, therefore, is jiable to be dismissed and is hereby dismissed summarily. No order as to costs. Sd/- Sunil Kumar Sinha Judge Sd/- R.N. Chandrakar Judge rr