ss % •S' 'S!i^.. ^cr':7T~? y".^'".,. ESLTBE fflGH COURT OF JUDICATURE AT BILASPUR CflHATTISGARH MISELLANEOUSAPPEAL(C)NO.- ^ OQ) OF 2010 g5anga-'@ (MEMORANDUM OF AFPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988) PELLANT ia.R. Ks. •••1.6..0^.i° , -The New India Insurance Company Limited, *' Through, Branch Manager, Branch Office, Sattigudi Chowk, Raigarh, Tahsil & District °.....,...... . Raigarh (C.G,) (t^.^W/Cv CNon-appIicant No. 3) RESPONDENTS J/. VERSUS Marshal Lugun S/o Rezan Lugun, Aged abourt 45 years, R/o - Village - Tuna Pahad, Police Station - Hathibadi, District - Sundergarh (Orissa) (AppBcant/Claimant) Present R/o - Chakradhar Nagar, Raigarh, District - Raigarh (C.G.) Shambhu Mahato S/o Harihar Mahato, Aged about 32 years, R/o - Village - Gerwani, Munna Agriculture Farm, Gerwani, Police Station - Kotwali, Raigarh, District - Raigarh (C.G.) (Noa Applicant No. 1) 3, Shri Umashankar Singh S/o A.B. Singh, Occupation - Vehicle Owner, aged about (not mentioned), R/o - Munna Agriculture Farm, Gerwani, Police Station - Kotwali, Raigarh, Tahsil & District - Raigarh (C.G.) (Non-applicant No. 2) Appeal Value at - Rs. 1.62,500/- MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 HIGH COURT OF CHHATTISOARH AT BILASPUR MA (QNo. 509 OF 2010 Appellant Respondents The New India Insurance Company Umited Versus Marshal Lugun & Others APPEAL UNDER SECTION 173 OF MOTOR VEHtaLES ACT. 1988 (SB: Hon'ble Mr. N.K. Aaamal. J.l resent : Shri Shivendu Pandya, Advocate for appellant. 1. 2. 3. 4. ORAL ORDER (Passed on 4 day of May,2010) Heard on IA No. 1, application for condonation of dday. On due consideration, 1 am satisfied that the counsel for appellant is succeeded In explaining the delay caused in filing the appeal. Accordingly IA No. 1 ts allowred and detay is accordtngly condon«l. Heard on admission. The instant appeal is directed by the appeltanVinsurance company challenging the award dated 25.08.2009, passed by the Ist Additional Motor Accidents Claims Tribunal, Raigarh (for short 'the Tribunal') in claim case No. 11/08, whereby and whereunder an amount of Rs. 1,62,500/- has been awarded in favour of claimant against the appellant/lnsurance company. 'lndisputably, the appellant/insurance company has rrot obtained any permission under Section 170 of Motor Vehicles, Act, '\3S8 (for short 'MV Act') from the Tribunal in order to contest the claim on the grounds Which are available to the person against whom the claim has been made. In this appeal, the appellant Insurance company wants to assail the quantum of compensation and finding regardlng negligence of the offending vehicle. 8. Section 170 of the MV Act reads as under: "170. Impleading insurer in c©rtaincases-Where in the course of any inquiry, the Claims Tribunat is satlsfied that- i. there is collusion between the person maMng the claim and the person against whom the claim is made, or ii. the person against whom the clalm is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shatt be impteaded as a party to the proceedlng and the insurer so impleaded shall 'thereupon have, without prejudice to the provtsions contained in sub- section (2) of Section 148, Uie right to contest e claim on all or any of the grounds ttiat are available to the person against whom the claim has been made." The aforesaid provision provides that in course of inquiry of a claim if the Tribunal is satisfied that there is a colluston between the claimant and the insured or the insured fails to contest the claim, the Tribunal for reasons to be recorded in writing, may direct that the insurer who may be liable in respect of such claim, shatl be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-sedion (2) of Section 149, the right to contest the claim on all or any of the grounds that are avallable to the person ^ainst whom the claim has been made. The Supreme Court, in 'rts various pronouncemert has taken a consistent view that the insurer has no right to file an appeal to ehaltenge the quantum of compensation or findings of the Tribunal as regards the negligence or contributory negligence ofthe offending vehicle. The Supreme Court in case of National Insurance Co. Ltd. Chandigarh v. Nicolletta Rohtagi and Others has observed in para 31 as under: 12002(7)SCC456 W'yiitlEE'"!>b»li«>t**liA«>*.! f tfc... Sk '-; , r "31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the tribunal does not implead the insurance company to contest the claim, in such cases it is open to an insurer to seek permission of the tribunal to contest the claim on the ground avaitable 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 mertts,.in that case it is open to the insurer to file an appeal again^ an award on merits, if aggrieved. In any case where an application for permi^ion is erroneously rejected the insurer can challengeonly that part of the order while filing appeal on grounds specified in sub-sections (2) of Section 149 of 1988 Act. But such applteation for permisston has to be bona fide and filed at the stage when the insured is required to tead his evidence. So far as obtaining compensation by fraud by the claimant is concemed, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to appty to the Tribunal for rectification ofaward." 9. In vlew of the above, there is no iota of doubt in my mind that the instant appeal flled by the insurance company challenging the amount of compensation and/or negligence ofthe offending vehicte, is not maintainable slnce no permission has been obtained under Section 170 of the MV Act. 10. In view of above, the appeal Is dismissed as not maintainable. No order asto costs. - N.K. Agar.val Sahu 1