JUDGMENT S.P. Srivastava, J.
1. Heard the learned counsel for the Insurer/ appellant. Sri Pankaj Bhatia, the learned counsel for the claimant-respondents, who has put in appearance at this stage, has also been heard.
2. The Insurer-appellant feels aggrieved by the award of an amount of Rs. 12,80,000 as compensation to the claimants on account of the untimely death of the husband of respondent No. 1 and the father of the respondent Nos. 2 and 3, in an accident involving the offending motor vehicle--a Tempo-insured by the present appellant.
3. The Tribunal after carefully considering the facts and circumstances as brought on record has returned all the findings on crucial facts against the present appellant. The amount of compensation has been determined taking into account the income of the deceased to be about Rs. 8,000 per month and holding the extent of dependency to be Rs. 6,500 per month. The age of the deceased was found to be 38 years at the time of the accident and a multiplier of 16 has been utilised for determining the quantum of compensation. The total amount awarded as compensation includes an amount of Rs. 30,000 towards loss of consortium, etc. and an additional amount of Rs. 2,000 was awarded for meeting the funeral expenses.
4. It may be noticed that it is not disputed that no steps for obtaining permission as envisaged under Section 170 of the Motor Vehicles Act to contest the claim on all or any of the grounds that are available to the owner of the offending motor vehicle had been taken by the present insurer-appellant. However, the appellant has moved an application during the pendency of this appeal, purporting to be under Section 170 of the Motor Vehicles Act on 31.10. 2002, i.e., before the dated fixed for preliminary hearing of the appeal requesting to grant permission to the appellant to contest the award on merits and on all grounds which were available to the owner of the vehicle.
5. In the aforesaid connection, it may be observed that such an application is entertainable only during the continuance of an enquiry proceeding before the Tribunal where the claim under Section 166 of the Motor Vehicles Act has been made and not thereafter. This position in law was clarified by the Apex Court in its decision in the case of National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors., JT 2002 (7) SC 251, where it was indicated that such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. In the present case, the aforesaid stage was crossed by the appellant long back.
6. In the circumstances, we are not inclined to grant the permission at this belated stage and the application deserves to be and is hereby rejected.
7. The learned counsel for the appellant has tried to assail the findings returned by the Tribunal against it on the question relating to the quantum of compensation and has urged that taking into consideration the nature of the business said to have been carried on by the deceased, his income could not have been assessed at Rs. 8,000 per month.
8. So far as the aforesaid aspect of the matter is concerned, the evidence on the record indicates that the deceased was carrying on different nature of businesses, which have been referred to in detail by the wife of the deceased examined as P.W. 1. The wife had further stated in her cross-examination that her husband used to give her an amount of Rs. 10-12,000 per month. The Tribunal taking into consideration the oral and documentary evidence brought on the record has not discarded the oral testimony of the wife treating it to be entirely unworthy of credence but has accepted the income of Rs 8,000 per month only.
9. Much stress has been laid by the learned counsel for the appellant on the failure of the claimants to produce any evidence showing that the deceased was paying any income tax.
10. In this connection, it was also pointed out that the witness of the accident, P.W. 2, Aditya Mishra examined by the claimant had stated in the cross-examination that the deceased did not pay income tax. So far as this aspect of the matter is concerned, the Tribunal has rightly not given any importance to the aforesaid statement as he was examined only as a witness 6f the accident and neither had nor could have any personal knowledge about the extent of the income of the deceased from the various sources as pointed out by the wife of the deceased.
11. In any view of the matter, the non-payment of the income tax cannot rule out the possibility of the income of the deceased as claimed by his wife and if there was any default under the provisions of the Income-tax Act, that would have entailed in the penal consequences but could not nullify altogether the effect of the statement of the wife that she actually received an amount of Rs. 10-12,000 per month from the deceased.
12. Taking into consideration the totality of the circumstances, the findings returned by the Tribunal on this aspect of the matter specially in the absence of any evidence worth the name having been brought on the record to rebut the statement of the wife, the income of the deceased as found cannot be taken to be excessive and unconscionable.
13. There is another aspect of the matter. This appeal at the instance of the insurer challenging the quantum of compensation determined to be just compensation by the Tribunal in the absence of the requisite permission as contemplated under Section 170 of the Motor Vehicles Act which is to be granted after recording the reasons in writing, is not maintainable as the insurer has to remain confined to the statutory defences made permissible for it to be raised. The ratio of the decision of the Apex Court in the case of National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors., JT 2002 (7) SC 251, is squarely attracted to the facts and circumstances of the present case.
14. In the aforesaid view of the matter, no interference is called for in the impugned award at the instance of the appellant.
15. This appeal consequently fails and is dismissed in limine.