Tata AIG General Insurance Company Limited vs Poornima Soni (Smt.) and Others

N.K. Agarwal, J.—Heard on admission.

The instant appeal is directed against the award dated 5-1-2009 passed in Claim Case No. 62/2008 by Motor Accident Claims Tribunal, Kanker Distt. Uttar Bastar, whereby and whereunder an amount of Rs. 5,81,200/- has been awarded as compensation to the claimant for the death of deceased Ravi Kumar in the accident dated 17-1-2008.

Shri Dashrath Gupta, learned Counsel for the appellant fairly and frankly conceded that the appellant/Insurance Company in this appeal is challenging only the quantum of compensation awarded by the Tribunal without obtaining any permission u/s 170 of the Motor Vehicles Act, 1988 (briefly "the Act") to contest the claim of all or any of the grounds that are available to the person against whom the claim has been made. However, he would submit that even without obtaining such permission, the Insurance Company can file appeal challenging quantum of compensation.

The question falls for consideration before this Court is whether it is open to the Insurance Company to prefer appeal against the award by the Tribunal questioning the quantum of compensation without obtaining permission u/s 170 of the Act.

In order to appreciate the contention raised by Shri Gupta, it would be appropriate to refer Section 170 of the Act which reads as under:

Impleading insurer in certain cases.- Where in 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) the person against whom the claim is made has failed to contest the claim,

it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in Sub-section (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.

The Supreme Court in its various pronouncements has held that unless permission u/s 170 of the Act is obtained, the Insurance Company cannot contest a case/file an appeal against award by the Tribunal questioning quantum of compensation as well as finding as regards negligence of the offending vehicle. The Supreme Court in National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, , has held in Paras 31 and 32 as under:

We have already held that unless the conditions precedent specified in Section 170 of the 1988 Act are satisfied, an 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 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 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 the 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.

For the aforesaid reasons, our answer to the question is that even if no appeal is preferred u/s 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.

The same view has been taken by Division Bench of this Court in case of National Insurance Company Ltd. v. Dashrath Pandey and Anr. reported in 2009(4) M.P.H.T. 52 (CG) : 2009 (30) CGLJ 114 (DB), where in Para 14 of the judgment it has been held as under:

In view of the above quoted dictum of the Apex Court in the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi and Ors. (supra), the appellant/Insurance Company cannot be permitted to challenge the quantum of compensation in this appeal as permission u/s 170 of the Act was not granted by the Tribunal.

In view of the above settled legal position, the Insurance Company cannot be permitted to file appeal challenging quantum of award without there being any permission u/s 170 of the Act. Shri Gupta, learned Counsel for the appellant has cited the judgment in case of New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and Others, , and submitted that in the instant case, the Supreme Court has entertained the appeal filed by the Insurance Company without there being any order u/s 170 of the Act and, therefore, the appeal preferred by the appellant is maintainable.

We have carefully gone through the judgment cited by Shri Gupta. There is no doubt the Supreme Court in exercise of its jurisdiction under Article 136/142 of the Constitution of India, may pass any decree or order in order to do complete justice between the parties, but the Apex Court in the above referred case has nowhere laid down that without obtaining any permission u/s 170 of the Act, Insurance Company can contest the claim/file appeal against the award by the Tribunal questioning quantum of compensation.

For the foregoing and in view of the settled position of law, the appellant Insurance Company cannot be permitted to challenge the quantum of compensation in this appeal as permission u/s 170 of the Act was not granted by the Tribunal. The appeal preferred by the appellant being not maintainable deserves to be and is hereby dismissed.