NATIONAL INSURANCE CO. LTD Vs. SULO DEVI

JUDGEMENT

(1.) THE appellant, National Insurance Company Ltd., insurer of the offending vehicle has preferred an appeal challenging the impugned order dated 15.03.2007 passed by the learned MACT. The impugned award has arisen out of the claim petition filed by respondent Nos.1 to 7 against the appellant as well as against respondent Nos.8 & 9 claiming compensation for the death of Shri Vishnu Dev Mandal. The brief facts which are necessary for deciding the present appeal inter alia are that respondent Nos.1 to 7 are the legal heirs of deceased Shri Vishnu Dev Mandal who died on 19.09.2004 in the hospital. On 10.09.2004 while waiting for the TSR in which all of them were travelling while moving towards New Delhi Railway Station the deceased was hit by the offending bus bearing registration no. DL 1PA 4351 driven by respondent No.3 rashly and negligently. As a result of the said accident, the deceased Sh. Vishnu Dev Mandal received serious injuries and was admitted to the hospital where ultimately he succumbed to his injuries. The Tribunal after taking into consideration the facts of the case as well as evidence led by the parties had passed an award in the sum of Rs. 6,28,000/-along with interest at the rate of 8% per annum payable from the date of the institution of the petition till the date of realisation. The said order passed by the Tribunal is now under challenge in the present appeal.

(2.) I have heard learned counsel for the parties at considerable length. Counsel appearing for the respondent has taken a preliminary objection to the very maintainability of the present appeal on the ground that the appellant cannot assail the findings of the Tribunal on the quantum of compensation as determined by the Tribunal. Counsel contends that the appellant had not taken over the defence of the owner and driver as envisaged under Section 170 of the Motor Vehicles Act and, therefore, is debarred from challenging the impugned award so as to assail the findings of the Tribunal on the quantum of compensation. Counsel for the respondent has placed reliance on the following judgments of the Apex Court:

(3.) AFTER having given my thoughtful and conscious consideration to the issue involved in the present case, I am of the view that the issue is no more res integra as in the judgments cited by the respondent, the Hon'ble Supreme Court has authoritatively held that in the absence of permission sought from the Court as envisaged under Section 170 of the Motor Vehicles Act, the insurer has no right to file an appeal to challenge the quantum of compensation or finding of the Tribunal as regards the negligence or contributory negligence of offending vehicles is concerned. It would be appropriate to refer Section 170 of the Motor Vehicles Act as under: