C.W.P. No.13812 of 2011 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.13812 of 2011 Date of Decision.02.08.2011 The Oriental Insurance Company Limited, Regional Office, SCO No.109- 110-111, Sector 17-D, Chandigarh through Shri Ram Avtar Deputy Manager .....Petitioner Versus Anita Kumari widow of Shri Jatinder Kumar and others .....Respondents Present: Mr. D.P. Gupta, Advocate for the petitioner. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J.(ORAL) 1. The petitioner-company seeks to challenge an award passed by the Motor Accident Claims Tribunal, Rupnagar in a motor accident claims case under Section 166 of the Motor Vehicles Act. The petitioner- company had admittedly filed an application for contesting the case on all grounds under Section 170 of the Motor Vehicles Act but the permission was not granted since the Tribunal was of the view that there was no collusion between the owner and the private respondents and there was no ground made under Section 170 of the Motor Vehicles Act to allow for such permission. 2. Learned counsel appearing on behalf of the insurance company states that he is not aggrieved against the order rejecting the petition for taking up defence on all grounds under Section 170 of the Motor Vehicles Act. Section 171 of the Motor Vehicles Act allows for preferring C.W.P. No.13812 of 2011 -2- an appeal by a person, who is aggrieved, within a particular time and the persons aggrieved in that context must be only such persons, who have legal grounds to prefer an appeal. The grounds on which the insurance company could make its defence are laid down under Section 149 of the Motor Vehicles Act and the issue of quantum can not be a subject of defence for the insurance company to plead for, unless the insurance company could make out a sufficient ground to allow such a defence to be taken by express permission granted under Section 170 of the Motor Vehicles Act. What the law specifically provides, an insurance company cannot circumvent by a resort to jurisdiction under Article 226 of the Constitution. 3. Learned counsel for the petitioner relies on a judgment of the Full Bench of Himachal Pradesh High Court in National Insurance Co. Ltd. VS. Soma Devi and others 2003 ACJ 1919, to say that an insurance company cannot normally challenge the award on quantum under Section 149(2). Raising a question whether the insurance company could challenge the quantum of compensation in a petition under Article 226/227 of the Constitution on the ground of being high, excessive or unreasonable, the Court held that it was not possible to do, except where the award is perverse or is based on fraud or a nullity in the eyes of law or that either the Tribunal had no jurisdiction to pass an award or it could not stand judicial scrutiny. In this case, there is no issue that there was any fraud or nullity of the award in the eyes of law nor there is a ground that the Tribunal would not have a jurisdiction while passing the order. The issue is whether the quantum as assessed by the Tribunal would fall within judicial scrutiny, must be again considered in the context of the facts adverted to by the Tribunal. In C.W.P. No.13812 of 2011 -3- this case, the Tribunal was considering the claim for compensation for the death of the 1st petitioner's husband, who was said to be earning Rs.25,000/- per month. It was stated that he was running a timber store and the deceased was aged 58 years at the time of his death. The claimants had also produced proof of payment of income tax through PW6. The Tribunal reasoned that the copy of the Permanent Account Number had not been produced, which if produced, would have shown the actual age of the deceased. The Tribunal found that the best evidence available with reference to the age had not been produced, took the age of the deceased between 55 to 60 years and proceeded to determine the compensation as per law laid down by the Hon'ble Supreme Court in Sarla Verma Vs. DTC 2009(6) SCC 121. It was stated in the evidence that the deceased was a partner in M/s Agnihotri Timber Store, Nangal and that he had two partners by names Ashwani Kumar and Upinder Kumar. PW6, an Income Tax Practitioner, gave evidence that the business was being run in partnership and the Tribunal held that the deceased must be taken as having 1/3rd share in the partnership business. It was stated through PW6 that the deceased was also a sole proprietor of M/s J.K. Furniture and found his total income from both the sources at Rs.2,70,940/-. 4. The insurance company contests this assessment of income as wholly without basis. While challenging the award passed by the Tribunal as perverse, the learned counsel seeks to contend that the income for the financial year ending with 31.03.2007 could not have been Rs.2,70,940/- . Actually, Tribunal had excluded the interest income on some deposits at Rs.34,140/- and took the income that constituted the loss to the estate as Rs.2,34,000/-. The argument is C.W.P. No.13812 of 2011 -4- that by a proper consideration of the income tax return, which had been filed, it could have seen that out of Rs.2,70,940/-, Rs.2 lacs was the income surrendered in M/s Agnihotri Timber Store and the surrendered income could not have been taken as the income of the deceased, which was earned in the financial year. Rather it was the income of many years prior to the said year, put together and the surrendered income was not disclosed by the deceased for several years and it could not be taken as the basis for determining the dependency. All these arguments have a direct bearing to the assessment of the income as undertaken by the Tribunal and I am not prepared to address the issue of the adequacy of compensation and so long as the order of the Tribunal was not illegal and did not suffer for want of jurisdiction, the manner of assessment of the income and the quality of appreciation of evidence shall not be subject of challenge in a writ petition to make the award susceptible for being treated as one passed without inherent jurisdiction. 5. I decline any interference for the assessment already made and dismiss the writ petition. (K. KANNAN) JUDGE August 02, 2011 Pankaj*