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2007 DIGILAW 396 (UTT)

NEW INDIA ASSURANCE COMPANY LTD. v. SUNIL BHOJ

2007-07-25

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri Rajesh Joshi counsel for the appellant and Sri Sarvesh Agarwal counsel for the respondents. 2. This is insurer’s appeal against the judgment and award dated 8.7.2003 passed by the Motor Accident Claims Tribunal, Nainital. 3. Briefly stated respondent Sunil Bhoj, has filed a claim petition before the Motor Accident Claims Tribunal, for grant of compensation on account of the death of Jogaram Bhoj in a motor vehicle accident on 20.3.1999 involving maruti van No. UP 01/1457 and truck No. MNK 4507 near village Kiwrali. The Claimant has alleged that at the time of accident the truck was being driven rashly and negligently. The deceased was a retired person and was getting pension of Rs. 3,000/- per month. 4. The opposite parties contested the claim petition and filed their respective written statements and denied the allegations made in the claim petition. 5. The insurer in its written statement has denied the allegations made by the claimant in the claim petition and has stated that the insurance company is not liable to pay compensation. The compensation claimed is highly exaggerated. 6. Both the parties have adduced evidence. The Claims Tribunal on the basis of the evidence on record has held that the accident had taken place due to rash and negligent driving of the truck. So far as the amount of compensation is concerned the Claims Tribunal has assessed the compensation of Rs. 60,000/- along with pendente lite and future interest @ 9% per annum. As the vehicle was insured with the New India Assurance Co.; therefore, the insurance company was held to be liable for payment of compensation. 7. Feeling aggrieved the present appeal has been filed by the Insurance Company. 8. The appellant insurance company has filed the present appeal on the ground that the compensation awarded is exaggerated. Thus the appeal has been filed challenging the quantum of compensation. However, this defence is not available for the insurance company as no permission under section 170 of the M.V. Act has been obtained, as held by the Apex Court in the case National Insurance Co. Ltd. V. Nicolletta Rohtagi, (2002) 7 SCC 456 as under : In Shankarayya v. United India Insurance Co. However, this defence is not available for the insurance company as no permission under section 170 of the M.V. Act has been obtained, as held by the Apex Court in the case National Insurance Co. Ltd. V. Nicolletta Rohtagi, (2002) 7 SCC 456 as under : In Shankarayya v. United India Insurance Co. Ltd. (1998) 3 SCC 140, it was held that an insurance company when impleaded as a party by the court, can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation. 32. For the aforesaid reasons, our answer to the question is that even if no appeal is preferred under Section 173 of the 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. 9. In view of the above, a perusal of the record shows that no permission under section 170 of the Motor Vehicle Act having been obtained by the insurer of the vehicle. 10. No appeal lies on the quantum of compensation only. 11. Accordingly, the appeal is dismissed with costs.