^, BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH, AT BILASPUR fCG) M.A.(C)NO. ^^ /2010 ?_ .* ..• yiwjgj APPELLANT flnsurer - N.A. :: ^THE BRANCH OFFICE, 2) THE NEW INDIA ASSURANCE CO. LTD., SHAHDOL (MP) \^ii^r': ^. THROUGH THEDIVISIONAL MANAGER, ;.R. Ss...-'-;:;;'{in;.W'-'/::^""\NEAR BUS STAND, BILASPUR ^ " "S^^^ ""'TBHSIL & DISTRICT BILASPUR (CG) ^ui.---"" VERSUS ESPONDENTS (Applicant No.l) (Applicant No.3) No.' '...-"^ANo.l) ^r 4. 5. SMT. URMILA BAI, AGED 33 YEARS, W/0 LATE BISAHULAL YADAV, MITHLESH KUMAR YADAV, AGED 15 YEARS (MINOR), S/0 LATE BISAHULAL YADAV, RAKESH KUMAR YADAV, AGED 12 YEARS (MINOR), S/0 LATE BISAHULAL YADAV, KU.POOJA YADAV, AGED 10YEARS (MINOR), D/0 LATE BISAHULAL YADAV, MUKESH KUMAR YADAV, AGED 7 YEARS (IVGNOR), S/0 LATE BISAHULAL YADAV, S.NO. 2 TO 5 MINOR THROUGH THEIR MOTHER AND NATURAL GUARDIAN SMT. URMILA BAI ALL R/0 VILLAGE LOHASARA, TEHSIL KOTMA, DISTRICT ANUPPUR (MP) CHHEDILAL KEWAT, AGED ABOUT 45 YEARS, S/0 NITYANAND KEWAT, R/0 RAM LOHASARA, BIJTIRI, DISTRICT ANUPPUR (MP) \ 886T 'iov sa^^maA aoiOM SHI so £LIs/a T^aj.iv •^^^^^^-^^?^^^^^^^^^^^^'^^'^^ mGH COURT OF eHHAmSQAaH ATBIIASPUR M.A. (Ct N0. 577 OF 2010 APPBLLANT [Insurer K.A. No.2t The Branch Office, The New India Assuranc-e Com.pan3? Liinited. Versus Sjait. Urmila Bai aiid otliers. APPEAL UNDES SBCTION 173 GF THB MOTOR VEHICLSSS ACT. 1988 D.3.: Hon'bie Snri I.M. Quddusi & Hon'ble Shri G. BaiahaiEddin, JJ. Presents Shri Mahavir Bhatnagar, coi.uiseffor the appeUant. Smt. Bhagwati Kashyap & SttK'i N.P. Chandi-avaiislii, counsel for the caveators/respondents No. 1 to 5. Shri Vlvek Sm-ivastava, comisel for respondent No.6. OKALORDER SPassed on 14th day ofSsptember; 2011^ Per I.M. Ouddusi.J. The appeuaiit - Insui'ai'ice Compaiiy lias filed tl-iis appeal lUider Section 173 of the Motor Velilcles Act, 1988 agaiiist the Impugned award datecl 31-03-2010 passed by the Motor Accident Claims Tribm-ial {Fa,st Ti-ack Com-t), Pendi'a Road, DistTict BUaspur (for' short the Claims Triburial'j in Clalai Case No. 30/2009, m so far as it relates to quantum fiart ority. 2. Brief facts of the case are fliat fhe deceased Bisahulal Yadav was an employee of S.E.C.L., KapUdhara Colliery, Bijm'l as Categoiy-4. On 15-12-2008, tlie deceased Blsaliulal Yadav was traveluig on Motorcycle bearing registi'ation No. M.P. 18-M.A./5682 along wltii one CMiedflal - non-appllcant No.l fl'om VUl^e Lohsai'a to Amai'pur, as pUlion rider. Neai* the tuming of village Madvakot, fhe saiu motorcycle, wUch was belng driven by the non-applicant No. 1 ui a rash and negligent manner, dashed against a dt'mn lymg on fhe road side tliereby Bisaliulal Yadav sustamed •^ 2 \ grievous injui-les and he died after two days dm'lag tiie coui'se of fhe treatment 3. The claLuiaiits belng legal heirs of fhe deceased had filed a pefition under Section 166 ofttie Motor Vehicles Act (for short thie Ac-f) before (he Clauns Tribunal clakalng a total compensatlon of Rs.59,48,304/- for (he deatli of fhe deceased. 4. Learned Claims Tribiinal on a close scrutmy of the evidence led, ruaterial placed aiid submlssions made by flie parties, has awarded a total amount of Rs.46,74,020/ agakist the appeUant/Insurance Coinpaay along wifh mterest @ 6% per aiinum fi'om the date of appllcation tiU its paymenfc 5. We have perused the impugned award passed by tfae Claims TribuiiaL 6. Learned counsel for the appeUant Iias submitted that the Clauns Tribunal wliUe assesslng future prospects of promotion of flie deceased has not deducted tlie amount of Family Penslon Q'om flie futi.u'e mcome of the deceased, wl~dch was beuig received due to his death. Had fhe deceased alive, he would liave got flruits of promotion aiid that future prospects would not have been hicluded ftie amount of famUy pension but fhe ainount of famfly pension Which is belng received by the clalmants has not been noticed by the Tribunal. He has furfher submitted that tliough permlssion under Section 170 ofthe Act was rejected as fhere was no c-oBision between tlie owner of the veliicle aiid ti-ie clakaants and fhe owner has contested fhe case but it wfll be too hai'sh to loose the opportunity to cliatlenge tfae quantum pail of the award when the same has wrongly been calculated, wifhout followir^ tlie principles laid down by HonTsle tlie Apex Court. 7. Iii tlie case uf Shxmkeerayga v. I/rdted India. Insunance Co. UcL reporled m AIR 1998 SC 2968, Hou'ble B?i'i "s the Supreme Coui-t lias held that fhe Insm'aiice Compaiiy when unpleaded as parly by the Tribunal can be permitted to contest fhe proceedlngs on merits only If the conditions precedent mentioned ui Section 170 are foiind to be satisfled and for that pui-pose flie Insu'ance Company has to obtalii order in writmg from the Tribunal wUch should be a reasoned order by the Tribuiial and iirdess tliat pixicediu'e is followed flie Iiism'ance Company cannot liave a widei defence on merits tliaii what is avaUable to it by way of statutoi'y defence. The same view was reiterated ui series of oi.lier decisioiis iiicluduig Ritd. Deui fS»nt.^ and others vs. New IfwH.d. Asswvcmce Co. Ltd. tuwl cuwther! luported iii (2000) S SCC 113 wherem flie Apex CoLU-t held tliat if fhe tosurance Company had not obtauied permission from fhe Tribuiial befoi-e Qluig flie appeal, the appeal preferred by the Insm'ance Compaiiy before tlie Higli Coiu-t would not be maiiilauiable ui law. Fiu-Uier ni tlie uiatter of Jfadwuii Insiwnce Coinpcmy Ltd. ws. Mcolletta jRohtugi suul others; i-eporled ui (2002) 7 SCC 456, HuiiTjle Uie Supreme Couit has obseived that "we liave already held that unless the conditions precedent specl&ed in Section 170 of 1988 Act is satlsfied, Insm-ance Company has no riglit ofappeal to chaUenge the award on merits". 8. As has been held by Honttle fhe Apex Comt m the dbove cited judgments and suice we are bound to foUoiy fhe law lald down by HonTjle the Supreme Court, we hold flie instant appeal against the qiiantum part 1s not mauitainable. 9. Resultantly, flie appeal flled by ttie appellant/Insurance Coinpany is disinlssed as not maintainable. Kw Sd/- l.M.QUddusl Judge Sd/- . G. Minhajuddin Judge