A.F-^- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISIONBENCH CORAM: Appeilant NA No.3/tnsurer 1-c HON'BLE SHRI RAJEEVGUPTA, CJ. HON'BLE SHRI SUNIL KUMAR SINHA, J. MA(CLNo. 787 of 2009 The National Insurance Company Limited, Divisional Office Transport Nagar Korba District Korba CG Through Divisional Manager Divisional Office Transport Nagar Korba District Korba CG Through Divisionaj Manager The National Insurance Company Limited, Divisional Office Taha Complex Vyapar Vihar Road, Priya Darshani Nagar, Bilaspur (C.G-). Respondents Clalmants & Owner&Driver VERSUS Dashrath Pandey S/o Ved Pandey aged about 49 years. Prasad Naveen Pandey S/o. Dashrath Pandey aged about 25 years, bofh R/o. Village Sagar P.S. Him' Tehsil Bilha DJstrict Bilaspur(C.G.) Samiulfa S/o Aashad Ali aged about 46 years R/o Pratapgarh P.S. Mandhati District Mandhati (U.P.), Presently residing at Aii Ahemad Transport & Company, Station Road Chapa P.S. & Tehsil Champa District Janjgir - Champa (C.G.) Ms/ Rajdhani Bus Service, Through Owner/ Director Rajesh Kumar Shukla, aged about 33 years S/o Heeralat Shukla R/o Station Road Champa P.S. & Tehsil Champa District Janjgir Champa (C.G.) jVlemo ofAppeai under^ection 173 ofthe Motor Vehicies Act. 1988 4 Present: Shri B.N. Nande, learned counsel forthe appeliant. ^ ORDER (16th June, 2009) The foltowing order of the Court was passed by Rajeev Gupta, C.J. By allowing I.A. No. 02/2009, the documents fiied along with this application are taken on record. 2) Learned counse! for the appeliant is heard on I.A. No.01/2009, an application for condonation of the delay in filing the appeal. 3) On due consideration of the submissions of learned counsel for the appeltant and the grounds taken in the application, we are satisfied that the appeliant/insurance Company has succeeded in showing sufficient cause for the delay in filing the appe^l. 4) I.A. No.01/2009, therefore, is ailowed and the delay in filing the appeal is hereby condoned. 5) Shri B.N. Nande, learned counsel for the appeltant is heard on admission. 6) This is insurer's appeal against the award dated 10.09.2008, passed by the Ninth Additional Motor Accidents Claims Tribunal, Biiaspur (for short "the Tribunal") in IVIotor Accident Claim Case No. 75/2008. 7) Respondent No.1 Dashrath Pandey and respondent No.2 Naveen Pandey, unfortunate husband and son of deceased Sarojani @ Saroj Pandey clajmed compensation of Rs.7,28,000/- by filing a claim petition under Section 166 of the Motor Vehicles :^. Act ( for short 'theAct') for his death in the motor accident on 25.09.2007. 8) The Tribunal on a close scrutiny of the evidence led by the parties held that deceased Sarojani @ Saroj Pandey died on account of the injuries sustained by her in the motor accident on 27.09.2007; the accident occurred due to rash and negjjgent driving of the driver of the offending vehicle Bus; as the offending vehicle Bus on the date of the accident was insured with the National Insurance Company Limited, the Insurance Companywas liabie to pay compensation to the claimants. 9) The Tribunal assessed the income of the deceased at Rs.3,000/- per month and Rs.36,000/- per annum. By deducting 1/3rd of Rs.36,000/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.24,000/- per annum. By multiplying the annual dependency of Rs.24,000/- with the multiplier of 13, the compensation was worked out to Rs.3,12,000/-. By awarding a further sum of Rs.15,000/- under otherpermissible heads, the Tribunal awarded a total sum of Rs.3,27,000/- as compensation to the ciaimants for the death of deceased Sarojani @ Saroj Pandey in the motor accident. The Tribunal further directed payment of interest @ 6% per annum from the date of filing of the ctaim petition till the date of actuai payment. 10) Shri B.N. Nande, learned counsel for the appeitant fairly and frankly conceded that the appellant/ Insurance Company in ^^ffis^^ i€ this appeal js challenging only quantum of compensation awarded bythe Tribunal. 11) The application fiied by the appellant/ jnsurance Company under Section 170 of the Act for grant of permission to contest the claim on all availabledefences was dismissed bythe Tribunal vide order dated 27.08.2008 on the ground that the owner and driver of the Bus were contesting the claim petition and there was no material to indicate any collusion between them and the ctaimants. 12) The Apex Court whjle considering the permissibility of challenge to the quantum of compensation by the Insurance Company jn the absence of permission under Section 170 ofthe Act in the case of National Insurance Co. Ltd. Vs. Nicoltetta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) observed in paras 31 & 32 as under: "31. We have already held that unless the conditions precedent specifjed in Section 170 of 1988 Act is satisfied, Insurance Company has no right of appeal to challengethe award on merits. However, in a situation where there is a collusjon between the claimants and the insured or the insured does not contest theclaim and, further, the Tribunal does not, implead the insurance Company to contest the claim in such cases it is open to an jnsurer to seek permissjon of the Tribunal to contest the daim 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 t...- that case it is open to the insurer to file an appeal against an award on merits, if aggrieved.In any case where an application for permission is erroneousiy rejected the insurer can chatlenge oniy that part ofthe orderwhile filingappeal 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 atthe 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 appeai 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 negiigence or contributory negligence of the offending vehicle." 13) Now reverting to the present case, admittedly the Tribunal did not grant permission under Section 170 of the Act to the appellant/ Insurance Company to contest the claim on ali available defences. On a perusai of the order dated 27.08.2008 whereby the Tribunal rejected the appellant's application under Section 170 of the Act, we are satisfied that the appellant's application was rightly rejected by the Tribunal as the owner and driver of the offending vehicle Bus were contesting the claim and subbu there was no material to indicate any colfusion between the owner and driver of the Bus and the claimants. 14) 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) the appellant/ Insurance Company eannot be permitted to challenge the quantum of compensation in this appeal as permission under Section 170 of the Act was not granted by the Tribunal. 15) As no other ground is pressed into service in this appeal, we are left with no other option, but to dismiss the appeal. 16) The appeal, therefore.is dismissed summarily. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha judge