JUDGMENT : P. Rajamanickam, J. (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and decree dated 17.12.2019 made in M.C.O.P.No.2300 of 2017, on the file of the Motor Accidents Claims Tribunal cum VI Additional District Judge, Madurai.) 1. This Civil Miscellaneous Appeal has been filed by the Insurance Company/2nd respondent against the Order/Award passed by the Motor Accident Claims Tribunal (VI Additional District Judge), Madurai in M.C.O.P.No.2300 of 2017, dated 17.12.2019. 2. The respondents 1 to 3 herein have filed a claim petition in M.C.O.P.No.2300/2017 on the file of the Motor Accident Claims Tribunal (VI Additional District Judge), Madurai under Sections 140, 141, 142, 166 and 182(A) of the Motor Vehicles Act, 1988 (hereinafter referred as MV Act) r/w Rule 3(1) of the Motor Vehicle Rules, claiming compensation of Rs.40,00,000/- for the death of one Maruthupandi in a motor accident. The learned tribunal, by the Order/Award dated 17.12.2019, has partly allowed the said petition and directed the second respondent/Insurance Company to pay a sum of Rs.32,48,215/- as compensation with interest at the rate of 7.5% from the date of filing of the said petition and also directed the second respondent/Insurance Company to pay costs. Aggrieved by the same, the second respondent/Insurance Company, has filed the present civil miscellaneous appeal. 3. For the sake of convenience, the parties are referred to as described before the Tribunal. 4. The averments made in the claim petition are in brief as follows: The first petitioner is the father and the petitioners 2 and 3 are the sisters of the deceased Maruthupandi. The said Maruthupandi is a bachelor. On 23.08.2017, at about 9.30 p.m, when the deceased Maruthupandi was returning home from his shop namely 'Kala Automobiles' by his two wheeler, namely TVS XL bearing Regn.No.TN-59-BL-7006, he was riding the said vehicle in a responsible manner in a moderate speed by observing the traffic rules. When he was coming from east to west direction in Sellur-Thathaneri main road, near Senthil Andavar Two Wheeler Spare Parts, Bharathi Nagar at Madurai, the first respondent's TATA 407 four wheeler viz., Milk Van bearing Regn.No.TN-51-W-2899, driven by the third respondent in a very rash and negligent manner in the opposite direction and dashed against the Maruthupandi's vehicle. When he was coming from east to west direction in Sellur-Thathaneri main road, near Senthil Andavar Two Wheeler Spare Parts, Bharathi Nagar at Madurai, the first respondent's TATA 407 four wheeler viz., Milk Van bearing Regn.No.TN-51-W-2899, driven by the third respondent in a very rash and negligent manner in the opposite direction and dashed against the Maruthupandi's vehicle. In the result, the said Maruthupandi sustained serious head injuries and he was taken to the Government Rajaji Hospital, Madurai and admitted there as an inpatient. But, he succumbed to his injuries on the next day i.e on 24.08.2017. With regard to the said accident, the first petitioner has lodged a complaint before the Sub-Inspector of Police, Traffic Investigation Wing-II Police Station, Tallakulam, Madurai and an F.I.R was registered against the third respondent in Cr.No.229/17 under Section 279 and 337 of I.P.C and altered into under Sections 279 and 304-A of I.P.C and the investigation is pending. At the time of accident, the deceased Maruthupandi was 27 years old and he was hale and healthy. He was self-employed and running an Automobiles Spare Parts Shop in the name and style of 'Kala Automobiles' and earning a sum of Rs.30,000/- per month. The petitioners were depending upon his income and since he suddenly died by accident, the petitioners suffered a lot. At the time of accident, the TATA 407 vehicle, which was responsible for the accident belonged to the first respondent, was duly insured with the second respondent and hence, the respondents are jointly and severally liable to pay Rs.48,21,000/- as compensation, but the petitioners restricted their claim to Rs.40,00,000/-. Hence, the petition. 5. The first respondent/owner of the TATA 407 vehicle remained ex-parte. The second respondent/Insurance Company alone contested the claim petition by filing counter. 6. The averments made in the counter statement filed by the second respondent/Insurance Company are in brief is as follows:- The petitioners have suppressed the manner in which the accident occurred and they have furnished a false and distorted version to shift the responsibility on the driver of the van, while as a matter of fact the accident was due to the negligence of the deceased himself. The second respondent understands that the third respondent had driven the van bearing Regn.No.TN-51-W-2899 at a moderate speed on the proper side of the road by taking necessary precautions. The second respondent understands that the third respondent had driven the van bearing Regn.No.TN-51-W-2899 at a moderate speed on the proper side of the road by taking necessary precautions. While so, the deceased, who was not holding any driving licence was riding a motor cycle from the opposite direction without wearing helmet at a very high and uncontrollable speed. On account of the very reckless driving, the deceased came to the wrong side of the road, fell down and sustained head injuries. The van was stopped on the spot and the injured was taken to the hospital. The criminal case referred to in the petition has been registered on the basis of a belated complaint given by the first petitioner and the same cannot be a basis for deciding the issue regarding negligence. Since the driver of the van was not responsible for the accident, the respondents are not liable to pay any compensation. The averments with regard to the age, occupation and monthly income of the deceased are denied. The petitioners were not dependents of the deceased. Hence, they are not entitled to claim any compensation and in any event, the compensation amount claimed in the petition is highly excessive and therefore, the second respondent/Insurance Company prayed to dismiss the petition. 7. During enquiry, on the side of the petitioners, the first petitioner examined himself as P.W.1 and also examined one more witness as P.W.2. They have marked Exs.P.1 to P.10 as exhibits on their side. On the side of the respondents, neither oral nor documentary evidence has been adduced. 8. The learned Tribunal, after considering the materials placed before it, found that the accident was occurred due to the rash and negligent act of the third respondent. It also found that at the time of accident, the TATA 407, which was driven by the third respondent belongs to the first respondent and the said vehicle was duly insured with the second respondent. It also found that the deceased Maruthupandi was a self-employed and by running an Automobiles Spare Parts Shop, he would have earned a sum of Rs.30,000/- per month and accordingly, directed the second respondent to pay a sum of Rs.32,48,215/- as compensation with costs and also with interest at the rate of 7.5% from the date of filing of the petition. Feeling aggrieved, the second respondent/Insurance Company has filed the present civil miscellaneous appeal. 9. Feeling aggrieved, the second respondent/Insurance Company has filed the present civil miscellaneous appeal. 9. When this Civil Miscellaneous Appeal came up for admission, this Court has raised a query as to the maintainability of the appeal by the Insurance Company on the ground that it has not obtained permission under Section 170(b) of the Motor Vehicles Act (M.V.Act) from the Tribunal to avail the defence of the insured. 10. Mr.K.Bhaskaran, the learned counsel for the appellant/Insurance Company, relying upon a decision of the Hon'ble Supreme Court in United India Insurance Company Limited Vs Shila Datta and Others, reported in 2011 (2) TNMAC 481 (SC), has submitted that since the Appellant/Insurance Company is already a Respondent (having been impleaded as party) in the claim petition, there is no necessity for the Insurance Company to obtain permission before the Tribunal under Section 170(b) of the M.V. Act to avail the defence, which are available to the insured/owner of the vehicle. 11. The issue as to whether the Insurance Company can file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle without obtaining permission under Section 170(b) of the MV Act was came up for consideration before a Three Judge Bench of the Hon'ble Supreme Court in National Insurance Company Limited Vs Nicolletta Rohtagi and others reported in 2002 (7) SCC 456 . The Three Judge Bench of the Hon'ble Supreme Court, after referring to the decisions in Shankarrayya -Vs- United India Insurance Company Ltd., 1998 (3) SCC 140 , Narendra Kumar Vs Yarenissa, 1998 (9) SCC 202 , Chinnamma George Vs N.K.Raju, 2000 (4) SCC 130 and Ritu Devi Vs New Delhi Insurance Company Ltd., 2000 (5) SCC 113 , held as under: “It was urged by learned Counsel appearing for the Insurance Company that if an insured has not filed any Appeal, it means he has failed to contest the claim and that the right to contest include the right to contest by filing an Appeal against the award of the Tribunal as well, and in such a situation and Appeal by the Insurer questioning the quantum of compensation would be maintainable. We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the Insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the Insurer cannot escape from its liability to pay compensation on any exclusionary clause in the Insurance Policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied. For the aforesaid reasons, an Insurer if aggrieved against an award, may file an Appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, implead the Insurer and in that case it is permissible for the Insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the Tribunal permitting the Insurer to avail the grounds on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the Insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 is satisfied and award is adverse to the interest of the Insurer, the Insurer has a right to file an Appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any Appeal against the quantum of compensation. Sections 149, 170 & 173 are part of one Scheme and if we give any different interpretation to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act.” 12. Sections 149, 170 & 173 are part of one Scheme and if we give any different interpretation to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act.” 12. The same issue again came up for consideration before another three Judge Bench of the Hon'ble Supreme Court in United India Insurance Company Limited -Vs- Shila Datta and Others (cited supra). In that case, the Hon'ble Supreme Court, has answered the reference that if the insurer is already a respondent (having been impleaded as a party respondent), it need not seek the permission of the Tribunal under Section 170 of the MV Act to raise grounds other than those mentioned in the ground raised under Section 170(2) of the Act and that the joint appeal filed by the insurer along with the insured is also maintainable. But, with regard to the issue whether the insurance company alone can file an appeal, challenging the quantum of compensation or negligence or contributory negligence, without obtaining permission under Section 170(b) of the Act is concerned, in view of the decision in National Insurance Company Limited Vs Nicolletta Rohtagi and others (cited supra), the Hon'ble Supreme Court has issued a direction to place the matter before the Hon'ble Chief Justice for constituting a Larger Bench to consider the aforesaid points. 13. Taking into consideration the aforesaid decisions, the Hon'ble Supreme Court in Josphine James -Vs- United India Insurance Company Limited and Another, (2013) 16 SCC 711 , has held that in the absence of permission obtained by the Insurance Company from the Tribunal under Section 170(b) of the MV Act, to avail the defence of the insured, it is not permitted to contest the case on merits. The relevant portion of the said decision is extracted herein. “10. Aggrieved by the impugned judgment and award passed by the High Court in MAC Appeal no. 433/2005 and the review petition, the present appeal is filed by the appellant urging certain grounds and assailing the impugned judgment in allowing the appeal of the Insurance Company without following the law laid down by this Court in Nicolletta Rohtagis case (supra) and instead, placing reliance upon the Bhushan Sachdevas case (supra). Nicolletta Rohtagis case was exhaustively discussed by a three judge bench in the case of United India Insurance Company Vs. Shila Datta[3]. Nicolletta Rohtagis case was exhaustively discussed by a three judge bench in the case of United India Insurance Company Vs. Shila Datta[3]. Though the Court has expressed its reservations against the correctness of the legal position in Nicolletta Rohtagi decision on various aspects, the same has been referred to higher bench and has not been overruled as yet. Hence, the ratio of Nicolletta Rohtagis case will be still applicable in the present case. The appellant claimed that interference by the High Court with the quantum of compensation awarded by the Tribunal in favour of appellant and considerably reducing the same by modifying the judgment of the Tribunal is vitiated in law. Therefore, the impugned judgments and awards are liable to be set aside. .......................................................................................... ......... 19. The Insurance Company has challenged the correctness of the judgment of the Tribunal before the High Court by filing an appeal. The same was partly allowed vide judgment dated 8.1.2007 by reducing the monthly contribution given by the deceased son to his mother at Rs.3750/- for her maintenance holding that the mother would not be entitled to more than 50% of the income of the deceased. The sisters of the deceased did not join the appellant as claimants. Hence, the High Court held that no compensation could be awarded to them. Therefore, the High Court awarded a compensation of Rs.6,75,000/- by applying a multiplier of 15 to the multiplicand. 20. The said order was reviewed by the High Court at the instance of the appellant in view of the aforesaid decision on the question of maintainability of the appeal of the Insurance Company. The High Court, in the review petition, has further reduced the compensation to Rs. 4,20,000/- from Rs.6,75,000/- which was earlier awarded by it. This approach is contrary to the facts and law laid down by this Court. The High Court, in reducing the quantum of compensation under the heading of loss of dependency of the appellant, was required to follow the decision rendered by three judge Bench of this Court in Nicolletta Rohtagi case (supra) and earlier decisions wherein this Court after interpreting Section 170 (b) of the M. V. Act, has rightly held that in the absence of permission obtained by the Insurance Company from the Tribunal to avail the defence of the insured, it is not permitted to contest the case on merits. The aforesaid legal principle is applicable to the fact situation in view of the three judge bench decision referred to supra though the correctness of the aforesaid decision is referred to larger bench. This important aspect of the matter has been overlooked by the High Court while passing the impugned judgment and the said approach is contrary to law laid down by this Court. 21. In view of the aforesaid reasons, the Insurance Company is not entitled to file appeal questioning the quantum of compensation awarded in favour of the appellant for the reasons stated supra. In the absence of the same, the Insurance Company had only limited defence to contest in the proceedings as provided under Section 149 (2) of the M.V. Act. Therefore, the impugned judgment passed by the High Court on 13.1.2012 reducing the compensation to 4,20,000/- under the heading of loss of dependency by deducting 50% from the monthly income of the deceased of Rs. 5,000/- and applying 14 multiplier, is factually and legally incorrect. The High Court has erroneously arrived at this amount by applying the principle of law laid down in Sarla Verma v. Delhi Transport Corporation instead of applying the principle laid down in Baby Radhika Guptas case (supra)regarding the multiplier applied to the fact situation and also contrary to the law applicable regarding the maintainability of appeal of the Insurance Company on the question of quantum of compensation in the absence of permission to be obtained by it from the Tribunal under Section 170 (b) of the M.V. Act. In view of the aforesaid reason, the High Court should not have allowed the appeal of the Insurance Company as it has got limited defence as provided under section 149(2) of the M.V. Act. Therefore, the impugned judgment and award is vitiated in law and hence, is liable to be set aside by allowing the appeal of the appellant.” 14. As already pointed out that in this case, the appellant/Insurance Company did not obtain permission from the Tribunal under Section 170(b) of the Motor Vehicles Act and as such, in view of the aforesaid decision of the Hon'ble Supreme Court, the appeal filed by the Insurance Company is not maintainable. Even otherwise, a perusal of the Order/Award passed by the Tribunal shows that on facts also, the said award does not require any interference by this court. 15. Even otherwise, a perusal of the Order/Award passed by the Tribunal shows that on facts also, the said award does not require any interference by this court. 15. Insofar as negligence is concerned, the learned Tribunal, taking into consideration the oral evidence of P.Ws.1 & 2, F.I.R, rough sketch, Motor Vehicle Inspector's report and charge sheet, came to the conclusion that the accident occurred due to the rash and negligent act of the third respondent (driver of the TATA 407 vehicle). Inso far as quantum is concerned, the tribunal, taking into consideration the age mentioned in the post mortem certificate, fixed the age of the deceased as 27 years. Further, relying upon the Income Tax Return (Ex.P.6), it has fixed the annual income of the deceased as Rs.2,69,850/-. Further, relying upon a Constitution Bench decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs Pranay Sethi and Others reported in 2018 (1) LW 331 , since the deceased was self-employed, the tribunal has added 40% of the salary towards future prospects and accordingly, calculated the annual income of the deceased as Rs.2,69,850 + 1,07,440 = Rs.3,77,290/-. Further, since the deceased was a bachelor, the learned Tribunal, relying upon the decision of the Hon'ble Supreme Court in Amrid Sali and others Vs National Insurance India Company Limited and others, reported in 2013 (2) LW 337, deducted 50% towards his personal expenses. Accordingly, it has fixed Rs.1,88,895/- as the amount which might have been given by the deceased to his family. Further, relying upon the decision of the Hon'ble Supreme Court in Sarla Verma (Smt) and Others Vs Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 , the learned Tribunal has applied the multiplier and arrived at Rs.32,11,215/- towards loss of income to the family. Further, it has awarded a sum of Rs.2,000/- towards damage to the clothes and articles, Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate and totally, awarded a sum of Rs.32,48,215/- as compensation. This Court does not find any infirmity in the above said findings of the learned Tribunal. Therefore, looking from any angle, we are of the view that this appeal is liable to be dismissed. 16. In the result, this appeal is dismissed at the admission stage itself, confirming the Order/Award passed by the learned Tribunal. No costs. Consequently, connected miscellaneous petition is closed.