// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Appeal No.480/2005 With S.B. Civil Misc. Stay Application No.405/2005 The New India Assurance Company Limited Versus Rajasthan High Court Bench Jaipur through Registrar General & Another Date of Order ::: 15.12.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Tripurari Sharma, Counsel for appellant Shri Sudhanshu Kasliwal with Shri K. Verma, Counsel for respondent #### By the Court:- Heard learned counsel for the parties. Admit. At the request of both the parties, the appeal was heard finally and is being disposed of. The appellant – New India Assurance Company Limited has preferred this appeal against the impugned Award dated 4th December, 2004 passed by the Additional District Judge (Fast Track) No.7, Jaipur City, Jaipur, in Claim Application No.893/2004, whereby a sum of Rs.1,76,994/- with interest at the rate of 6% per annum from the date of claim application i.e. 3rd May, 2002, has been awarded as // 2 // compensation under Section 166 of the Motor Vehicles Act, 1988, in favour of the claimant- respondent No.1. The only submission of the learned counsel for the appellant is that the amount of compensation awarded in the present case is on higher side and the same is liable to be reduced. The learned counsel for the respondent No.1-claimant has raised a preliminary objection that the present appeal, on behalf of the Insurance Company, challenging the quantum of compensation, is not maintainable as no permission was granted by the Tribunal under Section 170 of the Motor Vehicles Act, 1988, to contest the claim application on merits, therefore, without going into merits of the case, the present appeal is liable to be dismissed as not maintainable. The learned counsel for the appellant admits that no permission under Section 170 of the Act of 1988 was granted to the appellant Insurance Company by the Tribunal to contest the claim application on merits. I have considered the submissions of the learned counsel for both the parties and examined the impugned Award passed by the Tribunal. // 3 // It is a settled proposition of law that an insurer cannot avoid its liability on any other grounds except those mentioned in sub- section (2) of Section 149 of the Act of 1988. The three-Judges Bench of the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Nicolletta Rohtagi & Ors. - (2002) 7 SCC 456, has held that Section 149(2) of the 1988 Act limits the insurer's appeal on the grounds enumerated in Section 149(2) only. The Hon'ble Apex Court further held that unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom the claim has been made. Admittedly, no permission was granted in the present case by the Tribunal to the insurer/appellant under Section 170 of the Act of 1988, and, therefore, the appellant cannot be allowed to prosecute its appeal on other grounds except the grounds enumerated in Section 149(2) only. It is also not in dispute that there is no violation of any terms and conditions of the insurance policy and no other // 4 // ground enumerated in Section 149(2) of the Act of 1988 is available to the appellant in the present case; thus, I find force in the submission of the learned counsel for the respondent that the present appeal, on behalf of the insurer challenging the quantum of compensation, is not maintainable. In view of the above discussions, the present appeal is liable to be dismissed as not maintainable and the same is hereby dismissed as such with no order as to costs. Consequent upon dismissal of the appeal itself, the stay application, filed therewith, does not survive and the same is also dismissed. (Narendra Kumar Jain) J. //Jaiman//