• _ ? ('JSSOJi m THE HIGH COURT OF JXJDICATOKE AT BILASPUR M.A. No. _i^_L_ ot'2004 1,1. APPELLANT T National Insurance Company Ltd. Through its Branch Manager; National Insurance Company Ltd,; Bilaspur(C,0.) VERSUS '...J : 1. Raju alias Rajendra KLimar, ^ Son of Santosh Rao alias S.R. ^VBhonsle, Driver of fhe vehicle, R/o. Village Sendari (Police Station Patliariya, District Bilapur Bhai-atlal Son ofPokar Mal Nathani R/o. Chakarbhata, TehsU and District BUaspur (C.G.) (Owner of the vehicle} 3, Dhanirain Bargah fte^^-t'6'-^ -^ Son ofNankuram Bargah, R/o. 'Village Hafhkera, P.0. BawU, P.S. Pafhanya, Tehsll Mungeli, Dista-ict Bilapsur (Clainiant) MISCBLLAHBOUS APPEAL U/S 173 OF THE MOTOR VEmCLE AC-TS, 1988 ^A»i HIGH COURTOF CHHATTISGARH AT BILASPUR i. r- SinaleBench: Hon'ble Shri Justice PrashantXumarLMishra Miscellaneous Appeal No.826 of 2004 National Insurance Company Ltd. versus Raju alias Rajendra Kumar and others ORDER Postfor o9-7-2010 Sd/- Prashant Kumar Mishra Judge S"l"1" ^i ,-i* HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon^bl^Shri Justice Prashant Kumar Mishra IVIiscellaneous Appeal No.826 of 2004 Appellant Respondents versus National Insurance Company Ltd. Raju aliasRajendra Kumarand others Present: Shri Sourabh Sharma, Advocate appears on behalf of Shri Sanjay K. Agrawal, counsel fortheappellant. , Shri M.K.Bhaduri, counsel for respondent No.2. No one appears for other respondents. Miscellaneoys Appeal under Section 1 73 of the Motor Vehicles Act, 1988 ORDER (Passed on ^ July, 2010) This appeal under Section 173 ofthe Motor Vehicles Act, 1988 (henceforth 'the Act, 1988') has been preferred by the insurance company challenging the- award of compensation of Rs.1,20,000/- along with interest at the rate of 8% per annum in favour of claimant/respondent No.3. 2. Respondent No.3 preferred the claim petition claiming compensation of Rs.5,40,000/- on the pleadings that her daughter Hem Kumari, aged 12 years, was goingto school from Village Hathkera to Village Baoli when the offending vehicle bearing registration No.MR 26 B 0474 crushed his daughter on account of rash and negligent dnving by the driver respondent No.1. The vehicle was owned by respondent 'No.2. It was stated that HemKumariwas a brilliant student and vyquld 2L (^°^ [I[!!E'^i'' Jl" have contributed to the family handsomely after completing her studies. The insurance company pleaded that the vehicle was driven in breach of terms of the insurance policy and the driver was not having valid driving licence. 3. The claims tribunal framed issue No.3 regarding breach of policy at the time of driving the vehicle and recorded a finding that since the insurance company has not examined any witness nor submitted any document to prove that the driver was not having valid driving licence or that the vehicle was otherwise driven in breach of the terms of the policy, it is not proved that the insurance company is not liable for payment of compensation. 4. Learned counsel for the appellanVinsurance company submits that the finding recorded by the claims tribunal with respect to the liability of the insurance company is perverse and that in any case the compensation awarded is on extremely higher side. 5. Having gone through the material available on record, this Court is satisfied that the finding regarding failureofthe appellant/insurance company to provebreach of terms of the policy is not liable to be interfered with. The insurance company has not placed any material on record in support of its plea that the driver was not having valid driving licence or that for any other reason it should be held that the vehicle was driven in breach of terms of policy. Undisputedly, the vehicle was insuredwith the appellanVinsuranee company on the date ofaccident. i-Kiiiditta-^uUtWfrUfl ^ 6. The other ground raised in appeal is about the amount of compensation being on the higher side. In National Insurance Co. Ltd. vs. Mastan and another, (2006) 2 SCC 641 (paragraph 17)and Bijoy Kumar Dugarvs. Bidya Dhar Dutta and others, (2006) 3SCC 242 (Paragraphs 17 and 18), the Hon'ble Supreme Court has held that the insurance company is not permitted to challenge the quantum of compensation awarded by the claims tribunal unless the insurance company has sought permission to raise all defences available to the owner and driver by moving an application under Section 170 of the Act, 1988. The appellant has not stated anywhere that such permission was granted to it by the claims tribunal. Thus, relying on the above-mentioned judgmentof the Supreme Court, it is held that the insurance company cannot be allowed to challenge the quantum of compensation awarded to the claimant by the claims tribunal. 7. In view of the above, there is no force in this appeal. It deserves to be and is hereby dismissed. There shall be no order as to costs. Sdl- prashant Kumar Mishra judge G6pa|