^ ^ x.p.^. c. ^. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. HON'BLE SHRI SUNIL KUMAR SINHA, J. Misc. Appeal (C.t. No.950 of 2009. Appellant Non-ApDlicant-3 Respondents Applicants Non-Applicant-1 4 Non-Applicant-2 5 The Oriental Insurance Company Limited, Parmanand Bhawan, Rajendra Park Chouk, Durg Distt.-Durg (C.G.) Through Divisional manager, Divisional Office Durg, Durg (C.G.). VERSUS Beerbal S/o Jainu Ram Goad, aged about 46 years. Smt. Firatin Bai W/o Beerbal Goad, aged about 42 years, Both R/o Village Janjgiri, P.S. Anda, Tah. & Distt. Durg (C.G.) Ku. Karuna S/o Beerbal Goad, aged about 17 years, Minor Through Gardian Father Beerbal S/o Jainu Ram Goad All R/o Village Poplatola, P.S, & Tah. Dondilohara, Distt. Durg (C.G.) Kewal Ram S/o Sakharam, aged abut 38 years, R/o Village Revangahan, P.S. Ranchirai Distt. Durg(C.G.) Devendra Kumar S/o Late Lunkaran Golchha, aged about 33 years, R/o Village Shikashak Nagar, Durg Tah. Distt. Durg (C.G.). Misc. Appeal (Claiml under Section 173 of Motor Vehicle Act. 1988 Present: Shri Vipin Tiwari, learned counsel for the appellant. ORDER »th (13tnJuly, 2009) ^ The following order of the Court was passed by Rajeev Gupta, CJ. Shri Vipin Tiwari, learned counsel for the appellant is heard on admission. 2). This is insurer's appeal against the award dated 13.04.2009, passed by the Additional Motor Accidents Claims Tribunal, Balod, District Durg (for short "the Tribunal") in Motor Accident Claim Case No. 83/2008. 3) Respondents/ claimants No.1 to 3, the unfortunate parents and younger sister of deceased Rajesh Kumar claimed compensation of Rs.8,10,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act (for short 'the Act') for his death in the motor accident on 27.08.2008 when his Hero Honda Motorcycle was dashed by the offending vehicle Metador bearing registration No. CG-07C/3250, resulting in multiple serious injuries to Rajesh Kumar, who succumbed to those injuries during the course of his treatment in the hospital. 4) The owner, driver and insurer of the offending vehicle Metador contested the claim and denied their liability to pay compensation to the claimants on the plea that the deceased himself was responsible for the accident. The insurer took the further plea that the driver of the offending vehicle Metador was not holding a vaiid driving licence and the Metador was being plied in breach of the policy conditions. 5) The Tribunal on a close scrutiny of the evidence led before it held that deceased Rajesh Kumar died on account of the injuries f/^ 1 i» '^tea^". ^ sustained by him in the motor accident on 27.08.2008; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Metador; as the offehding vehicle Metador, on the date of the accident, was insured with the Oriental Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants. 6) The Tribunal assessed the income of the deceased at Rs.2,500/- per month and Rs.30,000/- per annum. By deducting 1/3rd of Rs.30,000/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.1,666/- per month. By multiplying the annual dependency with the muttiplier of 16, the compensation was worked out to Rs.3,19,872/-. By awarding a further sum of Rs.10,000/- under other heads, the Tribunal awarded a total sum of Rs.3,29,872/- as compensation to the ctaimants for the death of deceased Rajesh Kumar in the motor accident. The Tribunal further directed payment of interest @ 6% per annum on the above amount of compensation of Rs.3,29,872/-, from the date of filing of the claim petition till the date of actual payment. 7) Shri Vipin Tiwari, learned counsel for the appellant vehemently argued that the Tribunal has erred in holding that the driver of the Metador was solely responsible for the accident, whereas it was a case of contributory negligence wherein the deceased/ motorcyclist also equally contributed to the accident; in assessing the income of the deceased at Rs.2,500/- per month and Rs.30,000/- per annum without any cogent evidence in that :^ behalf; in deducting only 1/3rd of the income of the deceased towards his persona! expenses; and in selecting the higher multiplier of 16. 8) Shri Vipin Tiwari, learned counsel for the appellant fairly and frankly conceded that the application filed by the appellanV Insurance Company under Section 170 of the Act was dismissed bythe Tribunal vide order dated 13.04.2009. 9) The Apex Court while considering the permissibility of challenge by the Insurance Company in its appeal to the quantum of compensation awarded by the Tribunal and the finding about the negligence/ contributory negligence recorded by the Tribunai; in the absence of permission under Section 170 of the Act, in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) observed in paras 31 &32asunder: "31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, Insurance Company has no right of appeal to chailenge the award on merits. However, in a situation where there is a coltusion 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 -L'*^:- •^^^" against an award on merits, jf aggrieved. In any case where an application for permissjon is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (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 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 findings as regards negligence or contributory negligence of the offending vehicle." 10) The appellant/ Insurance Company, in the present appeal, is challenging the award on the following grounds: "1. Because the impugned award passed by A.M.A.C.T. (FTC) Balod Dist-Durg (C.G.) Dated on 13.04.09 M.A.C.C. No. 83/2008 is contrary to law being unjustifjed by the facts of the case. 2. That the Hon'ble Supreme Court of India has held that if the claimant are the father & Mother and the deceased was unmamed the multiplier can not be exceed more than 10 but in the instant case the Learned Tribunal had considered the Multiplier of 16 which is illegal & contrary to Law. 3. Because the Learned Tribunal has deducted 1/3 of Monthly income of the deceased white the Hon'ble Supreme Court had held if the claimants are Father Mother in this case the expanses of deceased ^ of monthly income. This fact had not be considered by the Learned Tribunal and a made a mistake. 4. Because the Learned Lower Court had Not considered the contributing Negligence of the deceased/Motorcycle driver & made a mistake 5. Because the claimant had Not produced any proof of Income of the deceased. This fact has not been considered by the Learned Tribunal & made a mistake." 11) From the above quoted grounds taken by the appellanV Insurance Company in this appeal, it becomes apparent that only the quantum of compensation awarded by the Tribunal and the finding about the negligence/ contributory negligence recorded by the Tribunal are under challenge in this appeal. 12) From the order dated 13.04.2009, a copy of whereof has been filed along with the memo of appeal, it becomes apparent that the application filed by the appellant/ Insurance Company for grant of permission under Section 170 ofthe Act was rejected by the Tribunal as the owner and driver of the offending vehicle Metador were seriously contesting the claim and there was no material available before the Tribuna! to indicate that there was :^<s) any collusion between the owner and driver of the offending vehide Metador and the claimants. 13) The rejection of the appellant's application under Section 170 of the Act by the Tribunal cannot be found fault with as the owner and driver of the offending vehide Metador were contesting the claim and the appellant/ Insurance Company couid not produce any material before the Tribunal to indicate that there was any collusion between the owner and driver of the offending vehicle Metador and the claimants. 14) As permission under Section 170 of the Act to contest the ciaim on all availabie defences was not granted to the appellanV Insurance Company by the Tribunal, the appellant/ Insurance Company cannot be permitted to challenge the quantum of compensation awarded by the Tribunal and the finding about the negligence/ contributory negligence recorded by the Tribunal, in view of the above quoted dictum of the Apex Court in the case of National Insurance Co. Ltd. Vs. Nicoiletta Rohtagi and others (supra). 15) For the foregoing reasons, the appeat filed by the appellant/ Insurance Company against the impugned award is liable to be dismissed and is hereby dismissed summariiy. Sd/- Chief Jusdce subbu Sd/- Sunil Kumar Sinha judge