A.^-^. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISiONBENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. HON'BLE SHRI SUNIL KUMAR SINHA, J. IViisc. Appeal (C.). No. 952 of 2009 Appellant Non-ApDlicant-3 ^.. Respondents ADDilcants Non-Applicant-1 5 Non-Applicant-2 6 Non-Applicant-4 7 Non-Applicant-S 8 The Oriental Insurance Company Limited, Parmanand Bhawan Rajendra Park Chouk, Durg Distt.-Durg (C.G.) Through DMsional manager, Divisional Office Durg, Durg (C.G.) VERSUS Murli Lal Verma S/o Late Shri Ubhaya Ram Verma, aged about 50 year, Keshar bai W/o Murli Lal Verma, aged about 45 years, Chela Ram S/o Murli Lal Verma aged about 18 years, Ku. Shantoshi D/o Murli Lai Verma aged about 16 years, Minor Kumari Shantoshi through guardian father - Murli Lai Verma all R/o Shilkola Basti P.S. Mohan Nagar, Tah. & Distt. Durg (C.G.) Shantosh Kumar Sahu S/o Ram Das Sahu, aged about 29 years, R/o Makroniya, P.S. Padmakar Nagar, Distt. Sagar(M.P.) Smt. Sapna W/o Narendra Kumar, R/o - 17/6 Mathura Road Faridabad DIst. Faridabad Hariyana Postal address F.G.152 Block-G, Rohinj Sector 18, Delhi 154-155 T.P.T. Centor New Sabji Mandi Azadpur Delhi, 110033. Ritesh Tiwari S/o Rajendra Prasad, Tiwari House No. 469 Sai Niwas Near to Dr. Shobha Rajput, Subhas Nagar, Kasaridih Durg (C.G.) The New India Insurance Co. Through Divisionai Manager - Thakkar Chambers In front to Project Automobile Power House G.E. Road Bhjlai, Tah. & ^^ \.^ h'*"N"""«ft Distt. Durg (C.G.). Non-ApDlicant-6 9 Smt. Lakshmi Bai W/o Late Bablu Verma, aged about 22 years, R/o Shikola Basti P.S. Mohan Nagar, Tah. & Distt. Durg Through - Father Kanta Prasad, R/o Bagredi P.0. Dewarbeeja, P.S. Saja Tah. Saja, Distt Durg (C.G.). jVIisc. Appeal (Ciaim) under Section 173 of Motor Vehicle Act. 1988 Present: Shri Vipin Tiwari, learned counsel for the appeliant. Shri Santosh Yadu, iearned counsel for respondent No.1. ORDER (13th July, 2009) The foliowing order of the Court was passed by Rajeev Gupta, C.J. Shri Vipin Tiwari, learned counsel for the appellant is heard on admission. 2). This is insurer's appeal against the award dated 22.04.2009, passed by the Eighth Additional Motor Accidents Claims Tribunal, District Durg (for short "the Tribunal") in Motor Accident Claim Case No. 104/2008. 3) Respondents/ claimants No.1 to 4, the unfortunate parents, sister and brother of deceased Bablu Kumar filed a claim petition under Section 166 of the Motor Vehicles Act (for short 'the Act') claiming compensation of Rs.11,88,000/- for the death of Bablu Kumar in the motor accident on 04.02.2007 when the Metador bearing registration No.CG-07C/4383 in which he wastravelling '^-t <^) ^-. was dashed by the offending vehicle Truck bearing registration No.HR-38/D-8070, resulting in multiple serious injuries to Bablu Kumar, who succumbed to those injuries on the spot itself. The claimants further pleaded that deceased Bablu Kumar was aged about 25 years and used to earn Rs.3,000/- per month as driver and was also getting daily allowance of Rs.50/- per day. 4) The owner, driver and insurer of the offending vehicle Truck contested the claim and denied their liability to pay compensation to the claimants. The insurer took the further plea that the driver of the offending vehicle Truck was not holding a valid driving licence and the Truck was being plied in breach of the policy conditions. 5) The owner and driver of the Metador also contested the claim and denied their liability to pay compensation to the claimants. 6) The Tribunal on a close scrutiny of the evidence led before it held that deceased Bablu Kumar died on account of the injuries sustained by him in the motor accident on 04.02.2007; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Truck; as the offending vehicle Truck, on the date of the accident, was insured with the Oriental Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants. 7) The Tribunal assessed the income of the deceased at Rs.3,000/- per month and Rs.36,000/- per annum. By deducting 1/3rd of Rs.36,000/- towards the personal expenses of the .^^^^, /•^, ^ ^ y ^ ^.?l^ ^^.i^.-S^?:. % i ^.^tsft;. i3 l':T?.J ^ "•'^•^-^ ^- ^. "'y^ ^' '<^K^^' deceased, the claimants' dependency was assessed at Rs.24,000/- per annum. By multiplying the annual dependency of Rs.24,000/- with the multiplier of 18, the compensation was worked out to Rs.4,32,000/-. By awarding a further sum of Rs.14,500/- under other heads, the Tribunal awarded a total sum of Rs.4,46,500/- as compensation to the claimants for the death of deceased Bablu Kumar in the motor accident. The Tribunal further directed payment of interest @ 6% per annum on the above amount of compensation of Rs.4,46,500/-, from the date of filing of the claim petition till the date of actual payment. 8) Shri Vipin Tiwari, learned counsel for the appellant vehemently argued that the Tribunal has erred in holding that the accident occurred due to sole negligence of the driver of the Truck, whereas in fact, it was a case of contributory negligence where the deceased who was driving the Metador also equally contributed to the accident; the Tribunal has erred in assessing the income of the deceased at Rs.3,000/- per month without any cogent evidence in that behalf. 9) Shri Vipin Tiwari, learned counsel for the appellant fairly and frankly conceded that the application filed by the appellant/ Insurance Company under Section 170 of the Act was dismissed by the Tribunal vide order dated 06.04.2009. 10) The Apex Court while considering the permissibility of challenge by the Insurance Company in its appeal to the quantum of compensation awarded by the Tribunal and the finding about the negligence/ contributory negligence recorded by the Tribunal, .^^^^. .•^-tfl?'- -^^ I ^ ^.^gS^. 1 "^""•"'l ^ '^s -^^•^- s (:.... 1 in the absence of permission under Section 170 ofthe Act, in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) observed in paras 31 & 32 as under: "31. We have already held that unless the conditions precedent spedfied in Section 170 of 1988 Act is satisfied, 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 js open to an insurer to seek permission of the Tribunal 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 aliowed 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 only 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 obtaining 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 jf 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 quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle." 11) The appellant/ Insurance Company, in the present appeal, ischallenging the award on the followjng grounds: "1. Because the impugned award Dated on 22.04.09 passed by 8th A.M.A.C.T. (FTC) Durg (C.G.) in M.A.C.C. No. 104/08 is contrary to law being unjustified by the facts of the case. 2. Because the Learned Tribunal has not considered that the contributory Negligence of the driver ofthe vehicle Metador while the Metador was driven by the deceased him self this fact had not been considered by the Leamed Tribunal & made a mistake. 3. That claimant witness namely Vikash Kumar had stated in his cross examination that both the vehicles had collided on the driver side of both the vehicle, which shows the contributory Negiigence of the driver of the matador this fact had not been considered by the Learned Tribunal and a made a mistake. 4. Because the Learned Lower Court had Not considered the contributing Negligence of the deceased/Metador driver & made a mistake 5. Because the claimant had Not produced any proof of income of the deceased. This fact has not ^^^^^ ^ ^. .^^ \ ^^'^. ^, ^^i^^^ '] ^y' jj ^ff^^ :<^^ been considered by the Learned Tribunal & made a mistake." 12) From the above quoted grounds taken by the appellant/ Insurance Company in this appeal, it becomes apparent that the appellant/ Insurance Company is challenging onlythe quantum of compensation awarded by the Tribunal and the finding about the negligence/ contributory negligence recorded by the Tribunal. 13) From the order dated 06.04.2009, a copy of whereof has been filed along with the memo of appeal, it becomes apparent that the application filed by the appellant/ Insurance Company for grant of permission under Section 170 of the Act was rejected by the Tribunai as the owner and driver of the offending vehicie Truck were seriously contesting the ciaim and there was no material availabie before the Tribunal to indicate that there was any collusion between the owner and driver of the offending vehlcle Truck and the daimants. 14) The rejection of the appellant's apptication under Section 170 of the Act by the Tribunal cannot be found fault wlth as the owner and driver of the offending vehicle Truck were contesting the claim and the appellant/ Insurance Company could not produce any materia! before the Tribunal to indicatethat there was any collusion between the owner and driver of the offending vehicle Truck and the ciaimants. 15) As permission under Section 170 of the Act to contest the claim on all available defences was not granted to the appellant/ Insurance Company by fhe Tribunal, the appellant/ Insurance g 1 v^w" 'J i Company cannot be permitted to challenge the quantum of compensation awarded by the Tribunal and the finding about the negiigence/ contributory negligence recorded by the Tribunal, in view of the above quoted dictum of the Apex Court in the case of Nationa! Ensurance Co. Ltd. Vs. Nicolletta Rohtagi and others (supra). 16) For the foregbing reasons, the appea! filed by the appeilant/ Insurance Company against the impugned award is liable to be dismissed and is hereby dismissed summ§irily. subbu Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge