FAO No. 1191 of 1992 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 1191 of 1992 (O&M) Date of decision: 17.3.2010 United India Insurance Co. .. Appellant v. Joginder Singh and others ..Respondent. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Piyush Bansal, Advocate for Mr. Alok Jain, Advocate for the appellant. Mr. S. K. Singla, Advocate for respondent No. 1. ... Rajesh Bindal J. The Insurance Company is in appeal before this Court challenging the award dated 1.2.1992, passed by Motor Accidents Claims Tribunal, Patiala, whereby it has been directed to pay compensation of Rs. 1,50,000/- to the claimant on account of injuries suffered by him. Briefly, the facts are that on 28.9.1989, respondent No. 1- claimant along with Gurdial Singh was coming back to his village on his cycle on correct side of the road and when he reached near the turning of village Bhagwanpura, a Maruti van bearing No. DDA-8273, being driven by its driver rashly and negligently, came from behind and struck against the cycle of respondent No. 1, as a result of which he fell down and received injuries. The claim petition filed by respondent No. 1-claimant was allowed by the Tribunal. It is against this award that the insurance company is in appeal before this court. Learned counsel for the appellant-insurance company submitted that the award is sought to be challenged on two counts – firstly the amount of compensation determined by the learned Tribunal is on higher side considering the material produced on record by the claimant and secondly, the driving licence of the driver of the vehicle, as was produced before the learned Tribunal, was fake. In that eventuality, it would the owner and driver who will be liable to satisfy the award and not the appellant. On the other hand, learned counsel for respondent no. 1 submitted FAO No. 1191 of 1992 [ 2] that challenge to the award by the insurance company on quantum is not maintainable, considering the fact that no permission under Section 170 of the Motor Vehicles Act, 1988 (for short, `the Act') was sought by the insurance company before the Tribunal. As far as the issue regarding driving licence of the driver being fake is concerned, even the same also cannot be raised at this stage, considering the fact that the Insurance Company did not lead any evidence before the Tribunal in that regard, even though the onus thereof was on it and no effort was made even subsequent thereto. The fact that the insurance company did not seek permission under Section 170 of the Act is not even denied by learned counsel for the appellant. Heard learned counsel for the parties and perused the record. As far as challenge to the quantum of compensation is concerned, the appeal on behalf of the insurance company on that ground is not maintainable considering the admitted position on record where the insurance company- appellant had not sought permission from the Tribunal under Section 170 of the Act to defend the claim petition. Hon'ble the Supreme Court in National Insurance Co. Ltd. Vs Nicolletta Rohtagi and others (2002-3) 132 P.L.R. 621, dealing with the issue as to whether an appeal by the Insurance Company under such circumstances is maintainable or not, held as under:- “24. We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied. 25. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that; (a) there is a collusion between the person making a claim and the person against whom the claim has been made FAO No. 1191 of 1992 [ 3] or (b) the person against whom the claim has been made has failed to contest the claim, the tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, 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 a claim has been made. Thus where conditions precedent embodied in Section 170 is satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed by appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one Scheme and if we give any different interpretation to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act.” In view of the authoritative pronouncement of Hon'ble the Supreme Court in the aforesaid judgment, once there is no permission to the Insurance company before the Tribunal in terms of Section 170 of the Act, the appeal on quantum of compensation cannot be entertained. As far as argument regarding driving licence of the driver being fake is concerned, in my opinion, even that also does not carry any weight considering the fact that the owner and the driver had produced on record registration certificate, insurance policy and the driving licence of the driver before the Tribunal. The insurance company did not lead any evidence to prove that the licence held by the driver was fake. It is only one typed copy of the certificate allegedly issued by Licencing Authority, Hyderabad dated 16.3.1992 placed on record with the appeal before this court, on the basis of which an argument is sought to be raised that the driving licence of the driver was fake. During the course of proceedings before the Tribunal, in the claim petition which was filed way back on 6.11.1989 and decided on 1.2.1992, the appellant had ample FAO No. 1191 of 1992 [ 4] opportunity to lead evidence to show that the driving licence held by the driver was not genuine. Even before this court, there is no prayer for leading additional evidence. It is only a typed document in the form of a certificate, which has been placed on record on the basis of which the argument is sought to be raised that the driving licence was fake, which cannot be accepted as such. Accordingly, even on that account, there is no merit in the present appeal. For the reasons mentioned above, the appeal is dismissed. (Rajesh Bindal) Judge 17.3.2010 mk