w^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISIONBENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Appellant (Insurer) Respondents (No.1 to 3 Claimants) (Driver) (Owner) M.A.(CyNo. 303 of 2010 National insurance Company Ltd., Branch Office, Kosa Badi, Korba, DisttKorba-(CG). VERSUS 1. Smt Janki Bai Wd/o Late Ashique Ram, Aged about;48 years 2. Manoj Kumar S/o| Late Shri Ashique Ram, Agedabout!21 years 3. Ku. Om Bai, D/o Late Ashique Ram Agedabout 19years Ail are R/o Kaveri Bihar, NTPC Cotony, Jamnipati, Katghora, Distt . Korba(CG) 4 Vishram Singh; S/o Ramadhar Singh, Aged about 38 years, R/o Tharahakpur, Nargorh, Seepat Bitaspur, Distt Bilaspur (CG) 5 Smt Rajni Rishi W/o Gulshan Rishi, R/o Green Park, Jarhabhata, Bilaspur, Distt Biiaspur (CG) Misc Appeal u/S 173 ofthe Motor Vehicles Act, 1988 Present: Shri Raj Awasthi, counsel for the appellant. ORDER (22nd IVtarch, 2010) ri.i The foltowing order of the Court was passed by Rajeev Gupta, C.J. As the Tribunal did not pass any order under Section 170 of the Motor Vehicles Act, 1988 (for short, 'the Act') because no application under Section 170 of the Act was filed by the appeliant/lhsurance Company, IA.No. 2 of 2010 is atlowed and the appellant/lnsurance Company is granted exemption from filing the certified copy of the order under Section 1 70 of the Act. 2) Shri Raj Awasthi, learned counsel for the appellant is heard on admission. 3) This is insurer's appeal against the award dated 17.12.2009, passed by the Additional Motor Accident Claims Tribunal, Katghora, District Korba (for short "the Tribunal") in ^ Claim Case No. 297 of 2007. 4) As against the comp^nsation of Rs.24,60,000/- claimed by respondents No. 1 to 3 (claimants), unfortunate mother, brother and sister of deceased Bhushan Lal Dongre, by filing a claim petition under Section166 ofthe Act for his death in the motor accident on 5.11.2006,the Tribunal awarded a total sum of Rs.3,26,000/- as compensation along with interest @ 8% per annum from the date of filing of theclaim petition till the date of actual payment. 5) Shri Raj Awasthi, learned counsel for the appellant/lnsurance Company frankly and fairly submjtted that the appellant/lnsurance Company is challengingonly the quantum of -.,. ^. compensationawarded by the Tribunal in this appeal. Learned counsef further fairly conceded that in fact, no application under Section 170 ofthe Act for grant of permission to contest the ciaim on allavailable defences was filed by the appeliant/lnsurance Company before the Tribuna! and as such, there was no occasion for the Tribunal to pass any order under Section 170 of the Act. Learnedcounsel, however, submitted that in fact such an applicatjon was got prepared by the appeltant/Insurance Company before the Tribunai, but the same was not fi!ed by the counsel ofthe appeSlant/insurance Company. 6) Be that as it may, the fact remains that neither the appellant/lnsurance Company submltted any application before the Tribunal for grant of permission to contest the claim on all available defences nor such permission was granted by the Tribunai. Even otherwise, as the owner and driver of the offending vehicle were represented and contested the claimants' claim, permission under Section 170 ofthe Actcould not have been legally granted to the appelJant/lnsurance Company. 7) The Apex Court while considering the permissibility of challenge to the quantum of compensation by the Insurance Company in the absence of permission under Section 170 ofthe Act in the case of National Snsurance Co. Ltd. Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) observed in paras31 &32asunder: "31. We have already heid that unless the conditions precedent specified in Section 170 of ^ 1988 Act is satisfied, Insurance Company has no right of appeaito 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 ciaim and, further, the Tribunal does not, implead the Insurance Company to contest the ctaim in such cases it is open to an insurer to seek permission of the Tribunat to contest the claim on the ground available to the insured or toa person against whom a ciaim has been made. If permission is granted and the insurer is allowed to contest the claim dn merits in that case it is open to the insurer to fite an appeal against an award on merits, if aggrieved. !n any case where an application for permission is erroneously rejected the insurer can challenge oniy that part of the order while filing appeal 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 at the stage when the insured is required to lead his evidence. So far as obtalning 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 appeal 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 qyantum of compensation as wel! as findings as regards '"'^. ^; ^. negligence or contributory negligence of the offending vehicle." 8) Now reverting to the present case, admittedly the Tribunal did not grant permission under Section 170 ofthe Act to the appellant/lnsurance Company to CQntest the claim on atl available defences. The owner and driver of the offending vehicle contested the claim before the Tribunal. Therewas no material before the Tribuna! to demonstrate that there was any collusion between the claimants and owner and driver of the offending vehicle. As such, the appellant/lnsurance Company inthis appeal cannot be permitted to challenge the quantum of compensation in view ofthe dictum ofthe Apex Court in the case t of National Insurance Co. Ltd. Vs. NicoEletta Rohtagi and others (supra). 9} As no other grounds are raised in this appeal for challenging the impugned award, the appeal filed by the insurer of the offending vehicle is liable to be dismissed and is hereby dismissed summarily. Sd/- Chief Justice Subbu Sd/- R.N. Chandrakar Judge