7 IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR nfl.A.(C)No.- ^jo^ /20f>8^~. • - ^ — !rlk. [''•S?'7 g^r~\ \'"", tjiiiilUai 1 ^ APPELLANT / JHE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE AMBEDKAR CHOWK AMBIKAPUR, DISTRICT - SARGUJA (C.G.) Vrs, RE&PONDENTS/CLAIMANT8:- 1. SUDAMA WIDOW OF MANIKCHAND, AGE35YRS., 2. ^ jy .<^-; .•i''^^; ^^^ BINOD KUMAR S/0 MANIKCHAND, AGE 17YRS., LATE r^- \ 5..-- 7. KU. SAPANA D/0 LATE MANIKCHAND, AGE 13 YRS., KU. KALPANA D/0 LATE MANIKCHAND, AGE 11 YRS., KU. ARCHANA D/0 LATE MANIKCHAND, AGE9YRS., KU. RANJANAD/0 LATE MANIKCHAND, AGE6YRS., KU. ANJANA D/0 LATE MANIKCHAND, AGE 4 YRS., . . . NO.-2 TO 7, MINOR THROUGH GUARDIAN MOTHER SUDAMA WIDOW OF MANIKCHAND . ALL ORIGINAL RESIDENT - VILLAGE RAGHUNATH NAGAR, THANA- RAMKOLA, TAHSIL- PRATAPPUR, DISTRICT-SARGUJA (C.G.) RESPONDENTS/NON-APPLICANTS :- 8. ANIL KUMAR JAISAWAL S/0 RAMBILAS JAISAWAL, RESIDENT VILLAGE- RAGHUNATH NAGAR, DISTRICT-SARGUJA (C.G.), (OWNER & DRIVER OF OFFENDING VEHICLE MOTOR CYCLE) ^ ..2... APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 APPEAL VALUED Rs. 7,45,0007- ( APPEAL BY INSURANCE) COMPENSATION CLAIMED BEFORE TRIBUNALRs. 13,33,5007- <-•-'' AWARDED AMOUNT BY TRIBUNAL Rs. 7,45,000/- ^F'A- HIGH COURT OF CHHATTISGARH : BILASPUR M.A. (C)No. 12 of 2009 Appellant The Oriental Insurance Company Limited Versus Respondents Sudaraa 8s others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri I. M. Quddusi & Hon'ble Shri Prashant Kumar Mishra, JJ Shri Sudhir Agarwal, Advocate for the appellant. Shri D. N. Prajapati, Advocate for the respondents No. 1 to 7. Shri V. K. Agarwal, Advocate for the respondent No.8. ORDER(Oral) ( Passed on this 12th day ofJanuary, 2011 ) Per I< M. Quddusi, J. Heard. This appeal has been filed by the appellant/Insurance Company only on the question of quantum against the award dated 31.7.2008, passed by the Addidonal Motor Accident Claims Tribunal (FTC), Pratappur, in Claim Case No. 62/2007. Brief facts, in nutshell, as projected by the claimants, are that on 19.2.2007 deceased Manikchand <was conaing from Wadrafnagar on a motorcycle, bearing registration No. C.G. 15-E/9154, which was being driven by the non-applicant No.2 (Anil Kumar Jayaswal), who was owner of the vehicle. It is alleged that due to the rash and negligent driving of the non-applicant No.2 an accident occurred and as a result of that accident Manikchand died. The respondents No. 1 to 7, being legal heirs of the deceased, filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 13,33,500/- under various heads. -e5""K;:RS^S3">i®^SS^s;^S£WS'y.5E:&3^S4 The case of the non-applicant No. 1 Insurance Company was that the deceased was a. pillion rider and the Insurance Company is not liable to pay the ainount of compensation. The case of the non-applicant No.2, owner of the vehicle was that the deceased was standing near a transformer at Raghunathnagar in a drunken condition and he was not sitting on the motor cycle as pillion rider. Leamed Claims Tribunal, having regard to the facts situation and the evidence on record awarded a sum of Rs. 7,45,000/- as compensation with simple interest at the rate of 7.5% from the non-applicants, jointly and severally. Being aggrieved, the appellant insurance company has filed the instant appeal on the ground of quantum. Indisputably, fhe appellant - Insurance Company has not obtained the permission under Section 170 of the Motor Vehicles Act, 1988, which reads as under : "170. Inapleading insurer in certain cases.—Wherein the > course of any inquiry, the Claims Tribunal is satisfied that - (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) fhe person against whoin the claiin is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who inay be liable in respect of such claim, shall be iinpleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-secdon (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made." It appears that the application for permission under Section 170 was filed by the appellant/Insurance Company on 3.9.2007. The Tribunal \ fixed the date as 19.9.2007 for orders on the application under 'wn^ i'yy:'SK-&;\ /f^"t 1 ^^^^ 3 7. 8. Section 170 of the Act, 1988, on which date the case was adjourned for 22.9.2007 for hearing on that application. On 22.9.2007 the Tribunal was busy in another case and therefore the next date was fbced for 29.9.2007 on which date the application under Section 140 of the Act, 1988 was considered and the interim conipensation was granted but no order was passed with regard to fhe application under Section 170 of the Act, 1988. It was the duty of the learned counsel appearing for the appellant/Insurance Company before the Tribunal to press the application at that time but it was never pressed, though several dates were fixed thereafter i.e. 12.10.2007, 24.10.2007, 2.11.2007, 28.11.2007, 26.12.2007, 6.1.2008, 29.1.2008, 12.2.2008, 14.2.2008, 23.2.2008, 10.3.2008, 24.3.2008, 15,4.2008, 3.5.2008, 7.5.2008, 17.6.2008, 8.7.2008, 17.7.2008, 24.7.2008 and 31.7.2008, and therefore it remained undecided till the disposal of the claim petltion. The Insurance Company was also granted opportunity to adduce evidence.but the same was not availed by it. Therefore, when the Insurance Company failed to press the application during the entire pendency of the claira petition, it was not open for it to plead in this appeal that the application under Section 170 of the Act, 1988 remained undecided. Therefore, we are of the opinion that fhe insurer was not conscious from the very beginning that it should have obtained permission under Section 170 of the Act, 1988 by pressing the application. Hon'ble Apex Court in National Insurance Coinpany Ltd. Vs. Nicolletta Rohtagi and others 2003 (3) TAC 293 (SC) has held that unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, Insurance Company has no right of appeal to challenge the award on merits. ^.f*""'^\ ^;^\ "*•>..^~< '•*-"'-.FX^"^'' At this stage, learned counsel for the appellant has submitted that the award is excessive and the income of the deceased was not assessed properly. However, though the appellant has no right to question the income of the deceased as it covers the question of quantum but we have seen that the deceased was a trained tailor, got training of tailoring from Modern Embroideiy & Tailoring Training Centre, registered by the Chhattisgarh Government, having Registration No. 54/02, Pedia Pent Surguja, and it has come in evidence of the widow of the deceased that the deceased was having a tailoring shop in the name of Gupta Tailors, having three machines and engaged two tailors, experts of stitehing. It has not come in the cross-examination made by the Insurance Company that the deceased was not a tailor or he was not having the income of Rs. 300/- per day. However, in the cross-examinadon of the owner of the vehicle a suggestion had coine that the income has been shown excessive and the deceased was not a tailor but was a labour. Therefore, it appears that the owner has contested the case more seriously in comparison to the Insurance Company and in such case it cannot be said that the owner of the vehicle remained negligent in contesting the case or made collusion with the claimants. Besides this a neighbour of the deceased Sunil Kumar Jayaswal (AW2) had also stated that the deceased was a tailor and was getting Rs. 300/- per day after deducting the expenses. In the cross-examination for appellant/Insurance Company he has stated that he knows about the income of the deceased. He was having helper also and was successfully stitching three pants and three shirts per day. In the cross-examination made by the owner of the vehicle he has admitted that the deceased was in the habit of consuming liquor. However, he has denied the suggesdon that he had consumed the liquor on the ..^•'"as^,v /^~^€ K'tss^..'' 'l ^::'^ • ~ ^ •% i ^--^^ 10. date of accident and collided with the motorcycle and fell down. He was the eye witaiess and himself seen that the non-applicant No.2 (Anil Kumar Jayaswal) was driving the motorcycle in the speed of 40 per k.m. The Tribunal assessed the income of the deceased as Rs. 5000/- per month, though on the basis of Rs. 300/- per day income the monthly income ofthe deceased comes to Rs. 9000/- per month. Besides this, the Tribunal has made standard deductions for personal living expenses as l/4th , whereas in the case of Sarla Verina (Sint) and others Vs. Delhi Transport Corporation and aaother1 when number of dependents is more than sbt then the deduction towards personal living expenses should be l/5th of the incorae. However, a multiplier of 16 was made applicable but we are of the opinion that in a case on hand the multiplier of 15 should have been niade applicable. Besides this, under the other heads i.e. loss of estate only Rs. 2500/- was awarded, Rs.2000/- for funeral expenses and for sus claimants, except widow, only Rs. 10,000/- and for loss of love and affection has been awarded and only Rs. 5000/- to the widow for loss of consortium was awarded, which are also very less. Any how, we are of the opinion that this appeal is not maintainable on the ground that there is no permission under Section 170 of the Motor Vehicles Act, 1988 and on this ground alone the appeal is Uable to be dismissed. Therefore the appeal is dismissed. No order as to costs ~—^~—-—. —-— I.M.Quddusi Judge Prashant Kumai: Mishra Judge Thakur (2009)6 SCC 121