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2010 DIGILAW 48 (CHH)

Oriental Insurance Co. Ltd. v. Kiran Devi

2010-02-15

R.L.JHANWAR, RAJEEV GUPTA

body2010
JUDGMENT : Rajeev Gupta, J. By allowing LA. No. 2 of 2009, the documents filed along with this application are taken on record. 2. Learned counsel for the appellants are heard on admission. This is insurer's appeal against the impugned award dated 27.4.2009 passed by the Motor Accidents Claims Tribunal, Korea (Baikunthpur) (for short 'the Tribunal') in Motor Accident Claim Case No. 39 of 2008. 3. The appellant insurance company has been directed by the Tribunal to pay a sum of Rs. 15,55,624 as compensation along with interest at the rate of 7.5 per cent per annum from the date of filing of the claim petition till the date of actual payment, for the death of deceased Ramakant Tiwari, an assistant teacher in Government School, in the motor accident on 1.3.2008. 4. The Tribunal assessed the income of the deceased at Rs. 14,352 per month on the basis of the salary certificate (Exhs. P3 and P4). The claimant's dependency was assessed at Rs. 11,482 per month, that is, Rs. 1,37,784 per annum. By multiplying the annual dependency of Rs. 1,37,784 with the multiplier of 11, the compensation was worked out to Rs. 15,15,624. By awarding further sum of Rs. 40,000 under other heads, the Tribunal awarded a total sum of Rs. 15,55,624. 5. Mr. Abhishek Sinha and Mr. G.S. Patel, learned counsel for the appellant insurance company, fairly and frankly conceded that the appellant insurance company in present appeal is challenging only quantum of compensation awarded by the Tribunal and application filed by appellant insurance company before the Tribunal u/s 170 of the Motor Vehicles Act was rejected by the Tribunal vide order dated 22.10.2008. 6. The Apex Court while considering permissibility of challenges by the insurer of the offending vehicle to the quantum of compensation awarded by the Tribunal, in absence of permission u/s 170 of the Motor Vehicles Act, in the case of National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others (2002) 7 SCC 456 , observed in paras 31 and 32 as under : (31) We have already held that unless the conditions precedent specified in section 170 of the 1988 Act is satisfied, insurance company has no right of appeal to challenge the award on merits. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others (2002) 7 SCC 456 , observed in paras 31 and 32 as under : (31) We have already held that unless the conditions precedent specified in section 170 of the 1988 Act is satisfied, insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is 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 is 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 allowed 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 has erroneously been 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 if no appeal is preferred u/s 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. 7. Now reverting to the present case, admittedly the owner and driver of the offending vehicle contested the claim before the Tribunal. The appellant insurance company could not demonstrate before the Tribunal that there was any collusion between the claimants and owner and driver of the offending vehicle. As such, the order passed by the Tribunal rejecting the appellant's application filed u/s 170 of the Motor Vehicles Act cannot be found fault with. The appellant insurance company could not demonstrate before the Tribunal that there was any collusion between the claimants and owner and driver of the offending vehicle. As such, the order passed by the Tribunal rejecting the appellant's application filed u/s 170 of the Motor Vehicles Act cannot be found fault with. 8. The appellant insurance company, in the absence of permission u/s 170 of the Motor Vehicles Act, cannot be permitted to challenge the quantum of compensation in this appeal, in view of the above quoted dictum of the Apex Court in the case of National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others (2002) 7 SCC 456 . 9. As the appellant insurance company has not challenged the impugned award on any other ground, the appeal is liable to be dismissed and is hereby dismissed summarily.