A.^-^ HIGH COURT OF CHHATTiSGARH AT BILASPUR DIVISION BENCH Coram HON'BLE SHRI RAJEEVGUPTA, CJ.& HON'BLE SHRS R.N.CHANDRAKAR, J. Appellants ul*.i, l'. ; . .... i.:..-X. "^' Non-apDellants M.A. C. No. §63of2009 1 National insurance Company limjted Branch Kamptee Line, Rajnandgaon, Through the Divisional Manager, iNationa! tnsurance Company, Divisiona! Office, 495, Marhafal, Jabalpur NA No.3 2 S Raminder Singh Grewai, resident of Mahesh Nagar, Rajnandgaon Owner VERSUS 1. SinghaJSykhJaiJain,sonjofShri Phooichand Jain, aged about 58 years 2. Smt N^ Jain, Wife of Shri Singhaj Sukhiaj Jain, aged about 50 years 3. Ku. Seema Singhai, Daughter of Shri Singhai Sukhlai Jain, aged about 32 years 4. Sandeep Singhai, son of Shri Sjnghai Sukhiai Jain,aged about 26 years Claimants No.1 to4. Ail residents ofHouseNo.16/234, Amdj Mandir Ward, Behind Digambar Jain Mandir, MaM Nagar, Durg, MP 5. indrajeet Singh, son of Shri Dilip Singh (Driver) NA No.1 APPEAL U/S 173 OF 5VIOTOR VEHICLE ACT '':^ •^. ::^., ^ f Prestent: Shrl Saurabh Sharma, counsel for the appeilants. ^ •1-'"'^ ORDER (7th November,2009) The following order of the Court was passed by Rajeev Gupta, C.J.: On due consideration, IA No.1/2009 is allowed and appeiiant No.2 S Raminder Singh Grewal, owner of the offending vehicie truck is permitted to be deleted as appeilant No.2 and impleaded as respondent No.6 in the memo of appeal. 2) Shri Saurabh Sharma,iearned counse! for the appeilant is heard on MCP No.935/2001, a petition for condonation of the delay in filing the appeal. 3) On due consideration of the submissions of iearnedcounsel for the appeilant and the grounds taken in the condonation application, we are satisfied that the appellant has succeeded in showing sufflcient cause for the delay in filing the appeat. 4) MCP No.935/2001, therefore, is aliowed and the delay in fiiing the appeal is hereby condoned. 5) Learned counsel forthe appellant is heard on admission. 6) The appeliant, insurer of the offending vehicle truck has filed this appeal against the award dated 30.03.2000, passed by the Fifth Additional Motor Accident Ciaims Tribunai, Durg, in Ciaim Case No.99/1999, whereby the Tribunal awarded a total sum of Rs.8,36,000/- as compensation to the claimants for the death of deceased Sanjay Singhai in the motor accident on 14.04.1999. 7) Shri Saurabh Sharma, iearned counsel for the appellants fairly and frankly conceded that the appellant in the present appeal 1 ; 1.. is chaElengingonly thequantum of compensation awarded by the Tribunal and the appeitant / Insurance Company did not file any appitcation under Section 170 of the Motor Vehides Act before the Tribunal for grant of permission to contest the ciaim on all available defenses. 8) The Apex Court while considering the permissibility of challenge by the insurance Company to the quantum of compensation in the absenceof permission underSection 170 of the iVtotor Vehicles Act in the case of National Snsurance Co. Ltd. Vs. NicollettaRohtagi and others, reported in 2003 (3) T.A.C. 293 (SC), observed in paras 31 and 32 as under:- "31. We have already he!d that uniess the Conditions precedent specified in Section 170 of 1988 Act is satisfied, an Insurance Companyhas no rightof appeal to chailenge the award on merits. However, in a situation where there is a coilusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not, impiead the insurance Companyto contestthe ciaimin such cases it is open to an insurer to seek permissipn 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. !f permission is granted and the insurer is aiiowed to contest the claim on merits in that case it is open to the insurer to flle an appeal against an award on merits, if aggrieved. In any case where an application for permission is erroneousiy rejected the insurer can chailenge only that part of the order while flling appeal on grounds specified in sub-section (2) of Section 149 of 1988 Act. But such appHcation for Dermission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far asobtaining compensation by fraud bythe claimant is concemed, 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 appea! 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 fiie an appeal questioning the quantum of compensation as weli as findinas as reaards nealiaence or contributory negligence of the offendina vehicle." 9) Now, reverting to the present case, the present appeal has been filed by the appellant / Insurance Company on the foltowing grounds and prayer: "i) For that the learned Claims Tribunal committed a grave legal error in amving at the annuai figure of Rs.69,018/-. The income keeps on fluctuating and therefore, atleast three years income tax returns ought to have been looked into which the daimants did not fiie and that being so the learned Claims Tribunal ought to have held that no cogent evidence as regards income of the deceased was filed. ii) For that the award of medical expenses to the tune of Rs.63.500/- was excessive been without any basis and so also the award of compensation on other heads. iii) Forthat the annual dependencyat therate of Rs.46,012/- is too high a figure as there is absoiuteiy no basis for the same.In this view of the 7 •T" ^ ^' r ; padma matter the annual dependency deserves to be substantially reduced. iv) For that the impugned award has been passed illegally and with material irreguiarity and needs to be interfered. Praver It is, therefore prayed that the quantum of compensation of the impugned award be substantiaily reduced." 10) From the above mentioned grounds and prayer ofthe appeal it is apparent that the appellant / Insurance Company is challenging only the quantum of compensation awarded by the Tribunal. 11) As permission under Section 170 of the Motor Vehicles Act was neither sought by the appeilant / Insurance Company nor granted by the Tribunal, the appeliant / Insurance Company cannot be permitted to challenge the quantum of compensation in this appeal in view ofthe above quoted dictum ofthe Apex Court in the case of Nationai Insurance Co. Ud. Vs. Nicolletta Rohtagi and others (supra). 12) The appeal fiSed by the appeiiant / Insurance Company, therefore, is liable to be dismissed and is hereby dismissed summarily. 13) Consequently, MCP No.642/2001 also stands dismissed. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge )