HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, "MA N0.2450004 a APPELLANT RESPONDENTS Llnited India InSURance Company Limited. Versus Mariharanlal and others. ORDER For Pronouncement of Order SdA L-L. Jhanwai^ Judge f Sd/- R.L. JhanwaF Judge, iih"i: / '^"'\ 'SSX ^&^"'. '^. ^- t HjGKCOURT OF CHHATTSSGARH AT BiLASPU^ SB: Hon'ble Shri Justlce R. L. Jhanwar, • Mlsc. ADpeai HQ. 245 of 2004 (NON-APPLICANT N0.31 United fndia Insurance Company L^ited, Through its Divlsionai Manager, Divisiona! Offlce ~ Main Road - Korba, Tehsil & Dlstrict - Korba (C.G.) Versus RESPONDENTS 1 (APPLICANT N0.2) (NON-APPLICANT No.1 ) (NON-APPLSCANT NO.2'1. Manharanla!. S/o Budlfram age - 32 years, Caste - Kawat, Occupation - Labour, R/o Siora, P.S. & Tehsil Katghora, District - Korba (C.G.) At Present - Dondaro, P.S. Balko, District - Korba (C.G.) 2. Mukhari Bai, w/o Manharanial, age - 30 years, Caste - Kewat, Occupation - House Wife - Labour. 3. Neeraj Prasad, S/o Rameshwar Prasad Pandey, age - 22 years, R/o Katghari, P.S. Akaitara, District ~ Champa/Janjgir, at present- Lalpur, P.S. Bango, Dsstrict- Korba (C.G.) 4. Durga Prasad Chaturvedi, s/o Shri Ganesh Prasad Chaturvedi, age 38 years, R/o Dhetvadih, P.S. Katghora, D[strict-Korba(C.G.) 173 OF THE IVIOTORVEHICLES ACT. 1988 AppearancQ: Shri Dashrath Gupta, counsel for the appeilant. Shri Abhijeet Sarkar, counsei for respondents No.1 & 2. Shri S.N.Nande, counsei for respondent No.4 None for respondent No.3. ORDER (Passedon^.04.2011) In this appeai under Section 173 of the Motor Vehicles Act preferred by the United Indla Insurance Company Limited, a chailenge has been thrown , to the award passed against the appeliant/lnsurance company by the iVlotor Accldents Claims Trlbunal (in short 'the Tribunai') awardlng compensation of Rs.1JO,000/~ to the respondents No.1 & 2/ciaimants in ciaim cs.se No. 93/2002. te»;'\ ~-^. ^;..^^ise^' .;.y > .;>- 2. As against the compensation (Sf Rs.5,40,000/-claimed by the claimants by filing claim petition under Section 166 ofthe Motor Vehicles Actforthe death ofNirasha.Kumari inthe motor accident on 2.1.2002,the Tribunal, onclose scrutinyofthe evidence, materiai placed and respectiye submissions, held that on account of rash and negligent driving of driver of offending vehicle Mahindra Utiljty beanng No.C.G. 12/9452, death of Nirasha Kumari'took place and as the appellant/insurance company insured the offending vehicle, the appellanyinsurance company was held liable for payment of eompensation and awarded Rs.1 ,70,QOO/- aiong with interest at 9% per annum payable from the date of filing 6f ciaim petition tilt the realization ofactuai amount. The Tribunal has fastened liability to pay compensation on the appellant / insurer. 3. Shri Dashrath Gupta, learned counseiforthe appellanVinsurer, argyed that the policy is not related with the offending yehicle because numberof offending vehicle has not been mentioned in the policy; driver of the oiTendingvehiciewas not holding a valid and eifect driving licence and the deceased was 7 years old child, and therefore.the compehsation awarded bythe Tribuna!, ison highersideandfhesame.maybereduced. 4. On the other hand, Shri Abhijeet Sarkar and Shri S.N.Nande, learned counse! appearing for the Tespondents, opposed the arguments and argusdinsupportofthe impugned award. 5. Having heard riva! submissions, 1 have perusedthe recordof the Court beiow including impugned award. First of alt, there is no ipermission under Section 170 of the M.V. Act to eontest the appeal on all the dsfence avaslable to the insurance company. Section 170of the R/iotor Vehicles Actreadsasunder: ,1''\70. Impleading insurer in certam eases.—Where in the cfiurse of any inquiry, the Claims Tribunal is satisfied that— (a) thera is collusion between the person making the claim and fhe person against whom the claim is rnade,or (b) l the person against whom the claim is made has failed tocontest the claim, i ; it mayl for reasons'tp be recorded in writing.idirect that the insureij who may be liable in respect of sychiclaim, shalt be . impleaded as a party to the proceeding anditiie^insurer so impleaded shali thereiUppn have, without prejudice to the pr6visipnseontained insub-sectiori (2) ofsectioh?149,thieright to contest "the claim on all or any pf^ the grounds ttiat are availgBle to the personagainst whom the ciaim Has been |made. "^l ^ VK y .* •! From the above quoted Section 170 of the Act, it becomes crystal clear that permission under Section 170 of the Act to contest the claim on all available defences can be granted pniy when the Claims Tribunal is satisfied that either there isollusion between the pereori"mak§the claimn (clalmants) and the person against whomtheclaim is made (ownerofthe offending vehicle) or when the persop against whom the claim is made (owner ofthe offending vehicle) has failed to contestthe ciaim. In the absence of permission yrider Section 170 ofthe Act, it is not permissible for the insurer of the offending vehicle to challenge the quantum of Compensation and/or the finding about the negligence/contributory negligence, in view ofthe dictum ofthe Apex Court in the case o'S Natiqnal Insurance Co.Ltd.,Chandigarh v. Nicoletta Rohtagi And Others, (2002) 7SCC456, whereinit was categoricallyheld in paras31 & 32 as under: "We have already held that ynless fte conditions precedent specified in Section 1 TOspfthe[1S88 Act are satjsfied, an insyrance company has no right ofappeal to^challengethe awarcl on merlts; However, in a situation where there is collusion between the claimants and the insured or the insured does not CQntestthe claim and,furtl»er,the Tribunal does riot impleadthe jnsurance Gompany -tocontesttheclaim.insuchcasesitisopehtoaninsurertpseek permission ofthe Tribunar t6 contest the claiml on the ground available to theinsured or to a persbn against whom a claim has been made. If permission is granted and the insurer is altowed t6 contest the claim on merits, in that case it is open the insurer to filean appeal against an award pn merits, if aggrjeved. In any casewhere an applieation for permission is errone6us!y rejected the insurer can challenge only tRat part of the order while filing appeal oh grounds specjfied in sub-section (2) ofSection] 149 of the 198& Act. But such application for permissiori has to be bpna fide and filed at the stage whep the insured is required to lead his evidence; So far as obtairijng compensation by fraud by the claim is concemed, it is no longer res mfegrathat fraud vitiates the entire proceeding and i in such cases it is open to an insurer to appiy to fhe Tribpnal fbr rectifieation of award." - 32. For the reasons, <?ur answer tothequestion is thatleven if no appeal is preferred un^er Section 173 of 1998 Act by an insured against the award of a Tribunal, it is npt permissibleft>ranlinsurer tofileaniappealiquestiontliequantumofcompensationasfwellas findings as regards negligence or Gbntributory negtigence of the offending vehicle." • In view oi the above, the appellaht/insurance company fcannot be :.^)ermitted-to tehallenge the quantum of compensatjo awarded by the Tribunal, in the absence pf permission underSection 170 ofthe M.V.Act. ?^ ^ |i'i. 6. As regards the question of not holding a valid and effective driving licence by the driver, a perusal of evidence of A.W.1 Manharanlal and A.W.2 IVIukhari Baiclearly revealedthat their Nirasha Kumari died in the motor accident caused by the driver of offending vehicl&.- On behalf pf the insurer one D.D.Poptani has entered witness box and has deposed that he is working asAsstt. Administrative Officer in the sppeliant/insurance company, therefore, he cannot prove the validity ofdrivinglicence held by the driver atthe time ofaccident. He has onlystated aboutthe condition ofpolicy. N.A.W.2 AmarChourasia is an investigator who has stated that he verified about the driving licenceand found that thesame was issued for non-transport vehic!e whereas at the time of accident the offending vehicle was regtetered as a transport vehicle and was running so. However, the insurancecompany had not produced any person from R.T.O. concerned byt it has produced onecertificate Ex.D.5 issued by Licensing Authority, Korba but he had not produced any person from that office to prove as to whether it is correct or not. Therefore, the ciaimants and the owner had nota chance to cross-examine the insurer on that point. In this manner, the insurer has failed to prove the validity of the drivinglicence. 7. So far as the offending yehicle invoived in the accident is concerned, it is clear from perusal of F.I.R. that number of that offending vehicle has been mentioned in the F.I.R. and also in seizure memo. As against this, nothing has been produced by the insurahce company that the offending vehicte is involved in this case. Thus, the argument advanced bythe leamedcounsel forthe appellant has no force. 8. For the foregoing reasons, 1 am ofthe considered opinion that the tearned Trib^inal'has not erred in fastening liability on the insurance compan^ to pay compensation. 1 do not find any illegality in the impugned order. -.» 9. Cbnsequently, the aflpeal being devoid of merit and substance, is liabie to be and is hereby dismissed. R.L. JhaBwar Judge