k^,^- BBPORE^THE HIGH CQURT OF CHHATTISGARH AT BILASPUR MANo.(0 Ug^Qf 2006 APPELLANT : ^ RESPONDENT No.3 ^ RESPONDENTS APPLICANT .ff ^ \M, w Ay ,^<r j1 y ^ ^ %?' The Oriental Insuran^ce Coaipany Ltd. By Divisional Manager, the OIC Ltd., Anibikapur, Aiabedkar Chowk, Thaaa & TahsU : Ainbikapur, Dist: Surguja (CG). VBRSU8 .< "? 1,^ Shri Khatlu Ram Birjiya, S/o Shri Padru, Aged 55 years Resident of Graia-Khapartala [DumerkhoU] Thana & Tahsil: Kushmi, Dist: Surguja (CG) ^ Smt. Soinni W/o Shri KhaUu Birjiya, Aged 50 years, Resident ofGram-Khapartala [DumerkhoU] Thaaa & Tahsil: Kushnii, Dist: Surguja (CG) ,3. j^ Shri Dilip S/o Late Phoolchandra, \ Aged 01 year [Miaor] Through : Khatlu Biijiya Smt. GuthU Bai W/o Late Phoo- Chandra, Aged 28 years, Resideut OfGram-Jario, PS: Bhauda, TaIisH: Kushmi, Disfc Surguja (CG) Shri Ramviaay Siagh S/o Saiju Smgh Aged 50 years, Profession: Contractor, [Vehicle owner], Residcnt of Kenabaadh, Thaiia & Tahsil; Ambikapur, Dist: Surguja (CG) 6, Shri Diuyoudhaa Alias Babloo, Aged ^ 35 years, Driver, Resident of Grain- Sargaon, Thaaa & Tahsil: Anibikapur, Dist: Surguja (CG) 7. , Shri MahaatRam S/o Raja Ram, ^ Aged 35 years, Resident of Grain & PO : Karmaha, Thaaa & Tahsil: Rajpur, Dist; Surguja (CG). ...2 -2- \^ MISC. APPBAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT, 1988. \ .^" i;i ^, HI&H COURT OF CHHATTISe^RH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QU&DUSI A HON'BLE MR.NAWAL KISHO ASAKWAt. JJ ApDellant Respondents M.A.fe) No.489/2006 The Oriental Insurance Company Ltd. Vs Khatlu Ram Birjiya & 6 others Present: Mrs. Chitra Shrjvastava, Advocate for the appellant. Mr. V. Rathore, Advocate for respondent No. 1, 2 d 3. ORbER fOraft (28th October, 2010) I.tt. Quddusi. J: 1. Heard. 2. The appellant- Insurance Company has filed this miscellaneous appeal against the award dated 17.7.2006 passed in Claim Case No.62/2004 whereby the learnecf 1st Additional Motor Accident Claims Tribund, Sarguja/ Ambikapur (for short ^he TribunaO has allowed the claim petition of the claimants and awarded a sum of Rs.6,24,000/- as compensation along with interest @ 9%p.o. Qnd fastened the liabijity on the appelJQnt herein to satisfy the award. . Brief facts of the case are that on 22.5.2004 at about 12.00 in the noon the deceased Phoolchand, on the instruction of non-applicant No.2, was trying to put the truck bearing registration number C615-ZC-1138 on jack and in that process, he cameunder the rear tyres of the said truck and died on the spot. The claimants, who ore four in numbers i.e. widow & minor child of the dec^QSed and parents of the deceased, have claimed a sum of Rs.20,00,000/- as compensort-ion on account of death of the deceased under various heads. 4. The Tribunal on the basis'of the pleadings of the parties framed, as many as, eight issues and aft-er considering the fad-s and cjrcumstances of fhe case as also the evidence brought on recorct by the respective pOTtJes, \ ^..^:^ ^k^ <%^././ awarded a sum of Rs.6,24,000/- as compensation to the claimants under various heads alongwith interest © 9% p.a 5. We have heard learned counsel for the parties and perused theimpugned oward as also records of the tribunal below. 6. From perusal of the recorcf jt appears that on 28.11.2005 the appellant- snsurance company has moved an Qpplication under Section 170 of the Motor Vehicles Act, 1988 (for short the Act, 1988') for permission to contest the cose on all the available grounds but the same remained pending for disposal. In the meantime, the appellant-Insurance Company moved another application on 3.7.2006 stating therein that proceedings against the owner and the driver ofthe offending vehicle remdn ex-parte, therefore, it is necessary to allow the Insurance Company to contest the case. On the saicf application, the Tribunal vide order dated 3.7.2006 ordered that the application under Section 170 of the Act, 1988 shall be considered at the time of decision of the cbim case. However, while disposing of the claim case, no order in respect of the opplication filed under Section 170 of the Act, 1988 has been passed and thus, the applicatjon under Section 170 ofthe Act, 1988 remained undecided even at the time of disposal of the claim case. 7. Section 170 of the Act, 1988 reads thus:- "Section 170 ofthe Motor Vehicles Act, 1988 reads as under : "170. Impleading insurer in certain cases.—Where in the course of any inquiry, the Claims Tribunal is satisfied that - (a) there is collusion between the person making the claim and the person against whom the clQim ismade, or (b) the person against whom the claim is made has failed to contestthe claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liQble in respect of such cldm, shQll be jmpleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right / ^—.; ^::. &^.^ l"*^*. to contest the claim on all or any of the younds that are available to the person cigGi'mst whom the clajm hos been made." 8. In the matter of National Insurance Co. Ltd., Chandigarh Vs, Nicolletta Rohtagi <& Others repor^ed in (2002) 7 SCC 456 the Hon'ble SupremeCourt in Para-31 has held thus:- "31. We have already held that unfess the conditions precedent specified in Section 170 of the 1988 Act are satisfied, an insurance company hos no right of appeal to challenge the award on merits. However, in Q situation where there is a collusion between the claimants ancf the insured or the insured does not contest the claim and, further, the Tribunal does not implead the insurance companyto contestthe claim, in such cases it is open to an insurer to seek permission of the Tribunal to contest the clQim on the ground avdlQble to the insured or to a person against whom a claim has been made. If permission is gronted and the insurer is allowed to contest the claim on merits, in that case, it is open to the insurer to file an oppeal against an award on merits, if aggrieved. In any case where an application for permission is erroneouslyrejected the insurer con challenge onlythat part of the order while filing appeal on grounds specified in sub- section (2) of Section 149 of the 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to leod his evidence. So far as obtajning compensation by fraud by the clajmant is concerned, jt is no longer res /nfegra-t^at fraud vitjoites the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award." 9. A bare reading of Section 170 of the Act, 1988 would reveal that the intention of the legislation is that in case there is collusion between the par-ties or person against whom the case is filed, the insurer shall be dllowed to be impleaded and to contest the case from that stage. In the y 4 instant case, ex-parte order was passed agoiinst the owner and the driver of the offending vehjcle, but at that stage the provisions of Section 170 were not followed in the instant case. Thus, jn such a situation, first of all, the application filed under Section 170 ofthe Act, 1988 should have been decided by the Tribunal and thereafl-er the parties should have been allowed to adduce further evidence. Therefore, the Tnbunaf has committed an error in passing the order that the application under Section 170 of the Act, 1988 would be decided at the tjme of final decision. 10. On the basis of above Qnalysis, we allow the appeal in part, set aside the impugned award and remit the matter back to the Tribunal for decision afresh. The Tribunal, after restoring the claim case to its origmal number, shall issue fresh notice to the parties and the appliccrt-JQn filed under Section 170 of the Act, 1988 by the appeliant-Insurance Company shall be decided first and therecifj-er only the porties shall be allowed to adduce evidence. The parties shdl also be allowed to amend the pleodings or to file or verify the documents. 11. Neecfless to mention that the Tribunalshall decide the claim petition as early as possible, preferably within a period of six months from the date of receipt of the record from this Registry. The Registry is direct-ed to transmit the record of the Tribunal concerned without further delay. Further, the amount, which has already been deposited by the appellant, shall not be refunded till the disposal of the claim petition. 12. Certified copy as per rules. __^__ Roshan/- Sd/- I.M. Quddusi Judge Sd/- N. K. Agarwal Judge