A • ^--J^ 2"7. ^ r^ \6l HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J. M.A. (C)No.l 164 of 2008 The Oriental Insurance Company Limited, Through Divisional Manager, Divisional Office No.2, Chawla Complex Devendra Nagar Road, Sai Nagar, Raipur (C.G.) APPELLANT RESPONDENTS/ CLAIMANTS RESPONDENTS/ NON-APPLICANTS Versus 1. Raju Kesharwani @ Durgesh, age 25 years, S/o. Shri Pannalal Kesarwani, Resident of Khamhardih, Behind of Bunglow of Shyamacharan Shukla, Shankar Nagar, Raipur, District Raipur (C.G.) 2. Subhash Chand Mehara, Son of Shri Lalaram Mehra, age about 28 years, Occupation-Driver, R/o. Kesinga Bagad, Rugudipada, P.S. Kesinga, District Kalahandi (Orissa) 3. Shri Shital Kumar Jain, S/o. Shri Rishabh Kumar Jain, Resident of Village Kesinga, Ward No.4, Thana - Kesinga, District Kalahandi (Orissa) MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 Present: Shri Sudhir Agrawal, learned counsel for the appeliant. ORDER (17th October, 2008) The foltowing order of the Court was passed by Rajeev Gupta, C.J. s Shri Sudhir Agrawal, learned counsel for the appetlant. 2. By allowing I.A. No. 02/2008, the documents filed along ^jth this application are taken on record. ^.£i2-3i'-'~a??3 "'a y'^^ '''%> ^^'".'^ ~^^'^ .'^^'i;x @ 'w'uSS!-S» iS ^. %^/ 3. Shri Sudhir Agrawal, learned counsel for the appellant is heard on admission. 4. This is insurer's appeal against the award dated 09-05-2008, passed by the 12th Additional Motor Accident Claims Tribunal, Raipur (for short "the Tribunal") in Claim Case No. 151/2007. 5. As against the compensation of Rs.46,90,000/- claimed by respondent No.1 Raju Kesarwani @ Durgesh by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 01-03-2007, the Tribunal awarded a total sum of Rs.7,69,861/- as compensation along with interest @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment. 6. Shri Sudhir Agrawal, leamed counsel for the appeilant frankly and fairly conceded that the appellant/ Insurance Company in this appeal has not taken any ground under Section 149(2) of the Motor Vehicles Act and the sole challenge in this appeal is to the quantum of compensation awarded by the Tribunal. Learned counsel for the appellant further conceded that the appellant/ Insurance Company did not even file an application under Section 170 of the Motor Vehicles Act before the Tribuna! for grant of permission to contest the claim on all available defences. 7. It is also relevant here to menflon that the owner and driver of the offending vehicle contested the claim and filed their written statement before the Tribunat. 'tii '^w^^ •^.rl (3 8. The Apex Court in the case of National Insurance Company Limtted Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) while considering the permissibility of challenge by the Insurance Company to the quantum of compensation in the absence of permission under Section 170 of the Motor Vehicles Act observed in paras 31 & 32 : "31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act is 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 Tribuna! to contest the claim 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 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 erroneously rejected the insurer can challenge pnly that part of the order while filing appeal on grounds specified in sub-section (2) of Section 148 of 1988 Act. But such application for permission has to be bona ffde and filed at the stage when the insured is required to lead 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 4 ^iiiiiiiiiiiliim", is open to an insurer to apply to the Tribunal for rectification of award. 32. For the aforesaid 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 negligence or contributory negligence of the offending vehicle." 9. As admittedly the appellant/ Insurance Company neither sought nor was granted permission by the Tribunal under Section 170 of the Motor Vehicles Act to contest the claim on all available defences, the appeliant/ Insurance Company, in view of the above quoted dictum of the Apex court cannot be permitted to challenge the quantum of compensation awarded by the Tribunal in this appeal. 10. As the appellanV Insurance Company has not taken any other ground for challenging the impugned award, the appeal is liabie to be dismissed and is hereby dismissed symmarily. nimmi Sd/- Chief Justice Sd/- SunU Kumar Sinha Judee