NEW INDIA ASSURANCE- COMPANY LTD Vs. SUNIL BHOJ

JUDGEMENT

(1.) Heard Sri RAJESH Joshi counsel for the appellant and Sri Sarvesh Agarwalcoun sel for the respondents. This is insurer's appeal against the judgment and award dated 8. 7. 2003 passed by the Motor Accident Claims Tri bunal, Nainital. 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 ve hicle 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. The opposite parties contested the claim petition and filed their respective written statements and denied the alle gations made in the claim petition. 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 com pensation claimed is highly exaggerated. Both the parties have adduced evi dence. The Claims Tribunal on the ba sis 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 pay ment of compensation. Feeling aggrieved the present appeal has been filed by the Insurance Com pany. 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 In surance 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 proceed ings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that pur pose the insurance company has to ob tain an order in writing from the Tribu nal and which should be a reasoned or der by the Tribunal. Unless this proce dure 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 ex istence of the conditions precedent men tioned in Section 170, the insurance company was not entitled to file an ap peal 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 permissi ble for an insurer to file an appeal ques tioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle. 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. No appeal lies on the quantum of compensation only. Accordingly, the appeal is dismissed with costs. .