. ,,,,,^^^^---^wl--:^y^^^ J PAGE No .. 1. L (^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C) No. /2009 y3: ^i 1.1@1©-' ^ ';^^^^^ APPELLANT DEFENDANT N0.2 ...-^y^ ^^•^^^T^?'^ ^^w:^^ :1. IFFCO- TOKIO GENERAL INSURANCE COMPANY LIMITED, 34 Nerhru Place, New Delhi -110019 through the Branch Manager, Iffco- Tokio General Insurance Co.Ltd, 3rd Floor 345-347, Lalganga Shopping Mal, G.E Road Raipur (CG) VERSUS RESPONDENTN0.1 CLAIMANT ^ 1. Smt. Geeta Bai Widow of late Vinod Kumar Dewangan, Aged about 22 years.Resident of Village - kachche, Police Station - Bhanupratapur, District - Kanker (C.G.) Presentty Residing at: Village - Jaggannathpur, ( Sankra), Tehsil - Balod, District - Durg (C.G.) RESPONDENT N0.2 DEFFENDENT N0.1 ^ 2. Devendra Kumar Mishra S/0 Jagdish Prasad Mishra , Aged about 20 years Resident Of Shikari Para , Balod District - Durg (C.G.) (Owner & Driver - Vehicle No. CG 07/LB/2901) ^ MISCELLANEOUS APPEAL UNDERSECT10N 173 OF THE MOTOR VEHICLE ACT. 1988 ___- -£1^-^—•—— HIGH COURT OF CHHATTISGARH AT Appellarit Defendant No. 2 Respondent No. 1 CLASIl4ANTS MA(C)No. 158 OF 2009 !FFCO' . TOKJO GENERAL INSURANCE COMPANY LIMITED, 34 Neh.ru Piace, New Deihi-110019 through tiie Branch Manager, Iffco Tokio Genera! insurance CQ. Ltd. 3rG Fioor 345-347, Laiganga Shopping Mai, GE Road, Raipur (CG). Versus 1. Smt. Geeta Bai Wjdow of !ate Vinod Kumar Devv'angan, Aged about 22 yea.rs, Resident of VJiiage Kachche, Police Station Bh^nupratappur, District Kanker (CG). Presently Residing at : VIJIage Jaggannathpur (Sankra) Tehsil Balod District Durg (CG). 2. Devendra Kumar Mishra, S/o jagdlsh Prasad Mlshra; Aged about 20 years, Resident of Shikari Para, Baiod District Durg (CG). (Owner & Driver- Vehicle No. CG 07/LB/2901). APPEAL_y^DER^SECTiON^1730F_MOTORVEHjCLES^ACT,,1988 fSB: Hon'ble IVIr. N.K. AaanA/al, J.) Present : Shri YS Thakur, Advocate for appetlant. OR.AL on 15th day ofApril, 2010) Heard on admissjon. The instant appea! is directed by the appeilant/insurance company chailenging the award dated 09.05.2008, passeri by the Additionai IViotor Accldents Ciaims Tribuna! (FTC) Balod, Dlstt. Durg (for short 'the Tribuna!') in clalm ca?e No. 52/07. The brief facts ofthecase are as under: a. On 02.11.2005, colJusion took place between motorcycje TVS Suzuki bearing reglstration No. CG-07AS-3B77 and ; Sm ^(m^! ?^ teKffl»< A. 4. ^ Bajaj Discover bearing reglstration No. CG-07/LB-2901 as a result of which Vinod Kumar Dewangan, who was sitting as a piliion rider on TVS MotorcycJe, seriousiy injured and succumbed to the injuries sustained in the said accldent on 01.04.2006. b. The cSaimants i.e. wife of deceased fited an appiicatlon under Section 166 of the MV Act claiming compensation of Rs. 22,95,000/- for the death of deceased in the said accident. c. The parents also preferred an application for compensation against the respondents for the death of deceased in the said accident. The Tribuna! on close scrutiny of evidence led, materia! piaced and submissions made, held death was caused due to injury sustained in the said accident:. assessed the total compensation of Rs. 2,62,000/-; distributed it between the wife i.e. ciaimants in the instant case and the parents in other ciaim case, holding also the insurance company tiable for its payment to the claimants. indisputably, the appellant/insurance company has not obtalned any permission under Section 170 of Motor Vehides, Act, 1988 (for short 'MV Act') from the Tribunal in order to contest the ciaim on the grounds which are avallabie to the person against whom the ciaim has been made. !n this appeal, the appeilant insurance company wants to assaii the quantum of compen^ation and finding regardlng negfigence of the offending vehicie. Section 170 of the MV Act reads as under: "170. Jnipleadlng snsurer in certain cases- Where in the course of any inquiry, the Ciaims Tribunal is satisfied that- <%^^S^^;%51^^ 'B*^^ ^ 8. (a) there is collusion between th.e person making the daim and the person against whom the claim is made, or (b) the person agasnst whom the ciaim is rnade has faiied to contest the daim, it may, for reasons to be recorded in writlng, direct that the insurer who may be Ilabie in respect of such claim, shall be impieaded as a party to the proceedlng and the jnsurer so impieaded shail 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 availabie to the person against whom the ciairn has been made." The aforesaid provision provides that in course of inquiry of a claim if the Tribuna! is satisfied that there is a coiluslon between the daimant and the insured or the insured faite to contest the claim, the Tribunal for reasons to be recorded in writing, may direct that the insurer who may be liabie in respect of such claim, shall be impieaded as a party to the proceeding and the insurer so jmpleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Sectlon 149, the right to contest the claim on a!l or any of the grounds that are available to the person against whom the clalm has been made. The Supreme Court, in its various pronouncement has taken a consistent view that the insurer has no right to file an appeal to chailenge the quantum of compensation or findings of the Tribunal as regards the negligence or contributory negligence of the offending vehicle. The Supreme Court in case of Nationa! insurance Co, Ltd. Chandigarh v. Nicoiletta Rohtagl and Others has observed In para 31 as under: 4 2002 CT SCt? 45^ r'" L.. ^^ ? ?5^?^^^ y- ..^:?-^. ^ ^-^,'? 1 "t s ^^'^" 10. 11 "31. We have atready held that unless the condltlons precedent specified in Section 170 of 1988 Act are satisfied, an insurance company has no right of appeai to chailenge the award on merits. However, In a situation where there is a coilusion bet/veen the daimants and the insured or the jnsured does not contest the claim and, further, the tribunal does not implead the insurance company to contest the ciaim, in such cases it is open to an Insurer to seek permission of the tribunai to contest the claim on the ground avaiiabie to the insured or to a person agalnst whom a cSaim has been made. If permission is granted and the insurer is 'ailowed to contest the claim on merits, in that case jt js open to the insurer to file an appeai against an award on merits, if aggrieved. in any case where an application for permission js erroneousiy rejected the insurer can chaiienge only that part of the order whiie fiiing appeal on grounds specified in sub-sections (2) of Section 149 of 1988 Act. But such appiication for permission has to be bona fide and fiied at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the ciaimant 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 Tribuna! for rectification of award." In view of the above, there Is no iota of doubt in my mind that the instant appea! fiied by the insurance company challenging the amount of compensation and/or negligence of the offending vehicle, is not maintainable since no permission has been obtained under Section 170 of the MV Act. jn view of above, the appea) is dismjssed as not maintainable. No order asto costs. Sd/- N.K. Agrawal 1 Judge Sahu