/ ff: m1“ mm $0 armr‘aimfem uS/uou, WézWn W aiwéwa. mm am % am mm mm a‘vf’rarfnar w we mmfagTJy 30 ai mwa‘r Mam 6mm fam‘ mWsaE amrfhnnwr aa‘rmm’rm'mrfqm mmfaarmmmmm funwWIm3a§ Wm mwmmmfqm m WE mr arm‘ mm W‘f’tm amami Mam-awrMrmm WT wmaaeow ww1%mfrfaamfaa?arw 3W3$1§Ww.§am? MamygEsmg Wm KmW-Wlawi aITEaE mama W any sum. ‘ mai3/9,a‘f~2v, W am ,agam' a War m ‘ri iqwmnmgeg a3 .3 agaJaERun $3 , am Hagan : .Mxoconao .Ew gugwggawg m$ §4m$n244y£wm<§ _~\~8.w gwgagwaamnmgouwg $m$aq§1u§§§uq§$ V g§§1a§ M GARH AT BILASPQE G lilGH COURT OF CHHAT‘HS D. B: Hon’ble Hon’ble LM. N.K. Quddusi, Agarwal, JJ . A.No. 650 oi 20% W ‘ a Misc. Agggg; gls 173 Aggarance: Mr. Shrikumar Agrawal, Sr. Advocate with Mr. Sudh‘lr Agrawal counsel for the appellant. Mr. MRS. Bhatia. counsei for the respondents 1 to 5. um JUDGMENT mmm (16.12.2010) , PER I. M. QUDDUSL J, This appeal. has been med by the lnsurance Company against the award dated 08.05.2003 passed by the Motnr’ Accident Claims x (1) TribunaL Burg (cs), in‘ Claim ease No.1212c101 . m There is no permission uls 170 of the Meter Vehicies Act. The appeiiant has filed this appeai on the ground of contributory negiigence that aiso inciudes part of quantum. (3) Brief facts of the case ’ as per the version ot the ciaima i deceased Jagdish Miéhra was working as driver with Sardar Diibag Singh. On 20.5.2001 Jagdish Mishra after loading the goods in r 1 his are that Truck bearing RegnNoMPZd-CMWB ieft for and reached to Nasik (Maharashtra) where he unioaded the goods and on 26.5.2001 he was driving the said Truck to reaoh Peepalgaon for ioading purpose. . 7.30 pm, one Tempo Trax, 0n the way, at vitiage Kokan at about APPELLANT , 1 Limited Sangita Mishra and others RESPONDENTS Smt. 5g, 1333 (a. bearing Regn. No. M.O.B. 6518 which was being driven by its driver in a rash and negligent manner dashed the Truck, as a result of which, the Tempo driver and the Truck Driver Jagdish both have died, The deceaeed was earning Rs.3000/- per month. The Claimants being dependents at the deceased have tiled ciaim petition for the award of Rs.20,72,000/— as compensation on various heads. The Tribunal has held that the death of deceased Jagdish was due to rash and negligent driving of the Tempo bearing Regn.No.6518 by : its drivenand Jagdish was not jointly responsible for the accident, therefore, there was no contributory negligence. The Tribunal has further held that the deceased was earning Rs.3000/- per month and after deducting 1/3” towards personal expenses, assessed the monthly income as Rs.2000/- and the annual loss of dependency as Rs.24,000/-. After applying' multiplier 17, the total loss of dependency was worked out as Rs.4,08,000/—g(Rs.24,000 x 17). Besides this, Rs.20001- for funeral expenses and Rs.5000/- towards loss of consortium and loss of love and affection to the wife and children have been granted. Thus a total compensation of Rs.4,15,000/- in alt has been awarded to the claimants. (5) Tm»; a: With regard to contributory negligence, we have gone through the records. A.W.2 Prahlad has deposed in his evidence that he was working as conductor in Truck bearing Regn.No.M.P.24—C/4576 and he was also employed by Dilbag singh who was the owner of the Truck. According to him, on 26.05.2001 the said Truck was going to Peepalgaon from Nasik (Maharashtra) for loading purpose; deceased Jagdish was driving the Truck in a moderate speed and at / that time, one Tempo Trax having Regn.No. MOB. 6518 which was / being driven rashly and negligently by its driver struck against the/ i / i i Truck on the side 0f its driver, a$ a result of which. both the drivers of Truck and Tempo have died and the pottion of the driver side of the Truck was also damaged and he became unconscious. in' his cross examination. on a suggestion being made, he has clearly stated that it is incorrect to say that Jagdish was driving the vehicle rashly and negligently and caused the accident, Except A.W.2 Prahlad. there is no other eye-witness in this case. Hence, the Tribunal has held that ‘3’— u . since Prahlad is the’sole eye witness, there was no reason to disbelieve the version of this witness. Besides this, there is. a categorical finding of the claims Tribunal that the death of the deceased was due to rash and negligent driving of the driver of the Tempo bearing Regn. No. MOB 6518 and we do not find any reason to interfere with the said finding. Therefore, the contention that there was contributory negligence on the part of deceased Jagdish cannot be allowed to stand and the same deserves to be rejected. (6) Further learned counsel for the appellant has submitted that application for permission u/s 170 of the Motor Vehicles Act was moved but the same remained undecided till the date of the nnal award. (7) ln this regard, this Court while disposing ofMisc. Appeal (C) No.121 of 2008 (National insurance Company Ltd —vs- Smt. Neetu and others) on 18th February, 2008 followed the dictum of the Apex Court in case of National insurance Co. Ltd. Vs. Nicoletta Rohtagi and others reported in 2003 (3) TAC 293 (SC) and reiterated that it is condition precedent before granting permission ufs 170 of the Act for the Tribunal to record a finding that the owner of the vehicle either was not contesting the claim or was in collusion with the claimants. As the owner of the vehicle vehemently contested the claim, the l Tribunal could not have recorded a finding that the owner of the/ ' (8) “L‘, @ vehicie either was not contesting the claim cr was in coHusion with thé claimants. Further, the Insurance Company was sole|y responsible to see that its application should have been decided but in the instant case. it has failed to press the application and as such if an application was not pressed during the entire pendency of the claim petition, it is not open for the Insurance Company to plead that its application u/s 170 o‘fthe Act to contest remained undecided. The purpose of Wing of application u/s 170 of the Act is that the insurer may get the right to contest but in this case, the Tribunal has crossed the stage of tiling of written statement, thereafter started recording evidence and till then the insurer did not press the application. lf the insurer was not cautious from the very beginning that it should have obtained permission by pressing application which was not pressed and was not having knowledge about the proceedings of the Court after conclusion of the claim case, it is not open for the insurer to say that its application seeking permission uis 170 of the Act remained pending. l9) (10) in View of the above, the contention raised by the learned counsel for the appellant that the application of the insurance Company for permission u/s 170 remained undecided and thus it can challenge the award on the question of quantum is not sustainable. ln the result, the appeal is dismissed as not maintainable in so far as it relates to challenge on the point of contributory negligence or quantum and even on merits also, the appellant has no case. No order as to costs. / i. ' Sdl— Sdl- i LM. QUDDUSI i N. K. Agarwa‘ Judge Judge i. ii