IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 MACA.No. 1426 of 2004() ----------------------- OPMV.1430/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/2ND RESPONDENT -------------------- THE ORIENTAL INSURANCE CO LTD., REGIONAL OFFICE, METRO PALACE, OPP. NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS ADMINISTRATION OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENTS: 1ST RESPONDENT AND PETITIONER --------------------------- 1. AJI, S/O.KUTTAN, KANISSAMPARAMBIL HOUSE, KURICHILAKOD, KODANAD P.O. 2. M.A.VARGHESE, S/O.ANTONY, MANJALI HOUSE, KURICHILAKOD, KODANAD P.O. ADV. SRI.THOMAS M.JACOB FOR R2 SRI.G.RAJAGOPAL FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO.1426/2004 ORDER ON I.A. NOS. 3332/2004 & IA. 331/2004 IN MACA.1426/2004 DISMISSED 23.07.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1426 OF 2004 = = = = = = = = = = = = = = = Dated this the 23rd day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)1430/97. The Tribunal awarded a sum of Rs.21,900/- with 9% interest and directed the insurance company to pay the amount. The insurance company has challenged the finding of the Tribunal on the question of negligence as well as involvement of vehicle. Learned counsel for the respondents' objects the very maintainability of the appeal on the ground that an application filed under Section 170 of the M.V. Act seeking permission to contest on all the grounds was rejected by the Tribunal. When a permission is refused under Section 170 of the M.V. Act, the only ground that can be made available for the insurance company is to challenge the finding if any stipulated under Section 149(2) of the M.V. Act. So the intention and purport of Section 170 is to the effect that if the insurance company has to challenge the quantum, M.A.C.A. 1426 OF 2004 -:2:- negligence etc. it should move an application before the Tribunal and the Tribunal should be satisfied that there is a collusion between the claimant and against whom the claim is made and further that the person against whom the claim is made is not contesting the case. There is no dispute between the parties that such an application was filed and it has been dismissed by the Tribunal on the ground that the insured was contesting the case. When it is so whether an appeal is maintainable is the third question. I feel it need not detain so long for the reason it is squarely covered by the decision of the Apex Court reported in National Insurance Co. Ltd. v. Nicolletta Rohtagi (AIR 2002 S.C. 3350) which is held as follows. “Even if no appeal is preferred under Sec.173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as finding as regard negligence or contributory negligence of the offending vehicle, unless the conditions precedent specified in S.170 of 1988 Act is satisfied. Motor vehicle accident claim is a tortious claim directed against torfeasors who are the insured and M.A.C.A. 1426 OF 2004 -:3:- the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Sec.149(2) of the Act or where the condition precedent specified in S.170 is satisfied.” In the light of this decision and in the light of refusal of permission under Section 170, the insurance company is not entitled to come with an appeal on those points and therefore the appeal is dismissed as not maintainable. It goes without saying that the claimant is entitled to withdraw the amount. M.N. KRISHNAN, JUDGE. ul/-