^ IN THE HON'BLE CHHATTtSSARH HIGH COURT OF JUDIGATURE AT BILASPUR (C.G.) ?- • M.A. (C) N0. /2011 (D.B.) ARPELLANT ...^y. f^^y <b-'') /•• ^' -^" RESPONDENTS (1.2 <& 3 are Claimants) ^Phe New India Assurance Co. Ltd. A..-''" ..••' /• Branch Office, Baloda Bazaar, C/o Divisional Manager, The New India Assurance Co. Ltd. Commercial Complex Transport Nagar, Korba Tahsil & Distt. Korba (C.&.) VERSUS 1.^ Smt. Neetu Singh Thakur, W/o Late Shri Surendra Singh Thakur, aged about 24 years, k^' f^ Z^Aniketan Singh Thakur, S/o Late Surendra Singh Thakur, aged about 4 years, ^3.^-Ku. Nikita Singh Thakur, S/o Late Shri Surendra Singh Thakur, aged about 3 years. Respondent' No. 2 & 3 Minor through Natural Guardian Mother Smt. Neetu Singh Thakur, All by caste-Rajput, R/o New Risda, Badrapara, Balco Nagar, Korba Tahsil & Distt. Korba (C.6.) ~«^w. i~ ^ Owner Cum Driver ^ $ 4^/ Saheblal Nayak S/o Amaru Nayak, aged about 35 years, R/o Village Post Chilhati, Tahsil Masturi, bistt. Bilaspur (C.6.) MISC APPEAL U/S 173 OF THE MOTOR VEHICLE ACT. HI©HCOURT OF CHHATTES&WM AT BILASPL® &IVISION BENCM: HON'BLE MR. I.M.QU&&USI & HON'BLE MR.6ULAM MINHAJU&DBM. JJ Aooellant Resoondarts M.A.IC1 No.80/2011 The New India Asairanee Co. Ltd. Vs Smt. Neetu Singh ThakurA ottwrs Presents Mr. Raj Awasthi, Advocate for -ttie oppeltant. , None for the respondents. Even in •tne second ctrii none appeafed on behalf of Ihe respondents. •*; ORDER (Oral) (8* Juiy, 2011) <a-^; 1M. CSUddtffi. J; 1. Heard. .,< 2. The appetlant-Insurance Company has filed this miscelloneeus <ippeal against the cuuard dated 7.9.2010 passed by the leumed Atotor Accident Ckiims Tribunul, Korba (for short- the Ctaims Tribunar) tn Claim Case No.281/07. 3. Facts of the case. in brief, are that on 22.09.2005 5urendra Singh Thakur was going towards Bilaspur on his motorcyele bcxiring registroction number C610-BB-3569 and when he reached near on Atain Rood of Vtlhge Chakarbeda, CEt -that time driver ef motorcycte bearing registration number C604-CL-2682, who wasdriving -the said vehicle in rush and negligent manner", dadied his motorcycle as a result he fell down and sualuined grtevous iRjuries over his head & hsgs ond became unconscious. He was t<rf»n to ihe ^iolte Hospital, Bila^iur foc treatment where He dfed en 24.9.2(X)5 while undergoing •treatment. Report of The accidsnt was lot^ed in the Police Oirtpost Malhar, Police Station Atesturi. The chiamanta, who ore widow and children of the deceased, have filed ckiim application Sfekmg campwisation to the lune of Rs.33,10,000/- along with uiterest @ t8% pA on •the grcMjnd •that. they were dependent pn the deceased, who uns sole eaming member m the family, and due to his dealh they have suffered loss of income. 'v .^y^ /^ts. '•;I- -» 4. The Claims Tribunal vide imfwgned awurd allowal claim of the ckijfflants, awarded cm amount of Rs.9,58,674/- as compaisation ond fastened Ihribjttly on Ihe appeltant-Insurance Compahy to sort-isfy the award. 5. We have heard teamed counsel for •the appellant. We (wve also perised ttie records of -the Claims Tribunal. 6. The appellant-Insurance Company has filed the instant appeol questionin9 the quontum and Iwbility fixed by the Claims Tribunal vide impuyied award. 7. In -the matter of Natienal Insunmce Co. ,Ltd.. Chandigarh Vs. NicoNctt'a ftohtagi & Otkers reported in (2002) 7 SCC 486 the Hontle Supreme Court- in Para-31 has also held thus:- "31. We have already held that untess the conditions ppecedent specified in Section 170 of the 1988 Act ane sirfisfied, an insurance company has no right of <ypeal to chaUenge •rfie award on merits. However, m a situation where •there is a collusion between the ckiimcnts and the insured er the insured does not contest the ckiim ond.furlher, the Tribunat does not implead the insurance comptmy to contest the claim, in sucn casss it is open to an inairer to seek (wrmissibn-of the Tribanal to contest Ihe claim on the grdund avaitable to -tte inaired or to a person against whom o ckiim has been made. If permission is granted cmd the msurer is allowed to contest the claim on merits, in -riiat case, it is open to the insurer to fite <m appeal againstan awurd on merits, if aggrieved. In ony caae where an application for permission is erroneously rejected the insurer can chaltenge on(y •Hiat parl- of the order while filir^ oppeal on grounds specified in sub-section (2) of Sectian 149 of the 1988 Act. But such cyplication for permission has to be bona fide and filed at the stage when the insuped is required to lead his evidence. So far <ss obtaining compenfiation by fnud t»y -the cfaimont is concerned, it is no bnger res witegrvs thnt fraud vitiates the entire proceedmg and in aich cases it is open te cn insurer to apply to the Tribunal for rectification ofawarcl." 8. Therefore. dfw\tenge of the oippelkuit^Insunonce Company to •the qucmtum part of the impugned auurd cannot be considered by •this Court because no application under Section 170 of the Motor Vehictes Act, 1988 was mowd by the appeltant-Insuronce Company seeking permisa'on to contest- the case on all the- avaikible ground*. Even otherwise, Ihe Chims Tribunal has not proceeded ex-parte against the owner' and •the driver of •the offendina vehicle. Thus, the instnnt appeul on the ground of quan'him includfng contributory negligence is not maintainable. V ^ r' •"'""^*^,Si\ 9. So far as the liability part- ef 1fie impugned award is concemed, the appellcnt-Insurunce Company is the insurer of offaiding vehicle bearing registration ninnber C604-CC-2682 and contBntion®fleamed counsel fop Ihe oppellant is that at the time of accjdent -three persons were sMmg wn -ttie motorcycle ond llierefere the Insurarice Company is not Twtole to pay any compensation. But, we nre not in ogreemenf with the contBitwn raiaed by •the teamed counsel for •the oppetlant-insuronce company for the reason that to fix the liability, it is necessary to oficerl-ain as To wtether the accident has taken ptace due to rash ond negligent drivm9 of Ihe offending vehicle or not and on this point, The Claims Tpibunal has frumed Issue No.l and after dealing wilh it in great de-tail has nached to a conclusion that the driver of offending vehicle was driving the offending whicte rashfy and negligently. tO. For the foregoing discusstons, the appeat has no foree, the aime dsse.rvesto be dismissed and it is didmissed. No order as to costs. s<u- Sd/- I.M.Quddusi Judge .^^: °•s?'ll*3ud6e Adi^ ftoshan/- <s-.