JUDGMENT V.M. Sahai and Sanjay Misra, JJ.
1. This appeal has been filed by the Oriental Insurance Company Ltd., the insurer of Tempo No. UP-13A-3185. The claimants/respondents filed M.A.C. No. 169 of 1996 claiming compensation of Rs. 3,45,500/- on account of the death of Bhaktu Dass. The allegations in the claim petition was that on 21.2.1996 at about 9.30 A.M on Roorkee Road, the deceased and his brother Guddu Dass were returning on a Rickshaw. After leaving the Rickshaw while they were crossing road, the aforesaid tempo hit the deceased due to which he died. An F.I.R. was lodged at P.O. Sadar Bazar, Meerut Cantt. At the time of death the deceased was aged about 44 years and he was working as Head Clerk in the office of C.D.A, Meerut and his monthly salary was Rs. 3,046/-.
2. The owner of the tempo did not appear in spite of service of notice. The claim was contested by the appellant insurance company. It was denied that accident took place with the tempo. It was admitted that the tempo was insured by the appellant and it was pleaded that the accident took place due to negligence on the part of deceased. The Motor Accident Claims Tribunal held that the accident took place due to rash and negligent driving of the offending tempo. The income" of the deceased from the salary certificate was found to be Rs. 3705/- and multiplier of 15 was applicable. From the annual income of the deceased 1/3rd amount was deducted and the dependency was found to be Rs. 29,640/: per annum. The tribunal awarded Rs. 4,54,100/- as compensation with 12% interest per annum from the date of petition till realization.
3. We have heard Shri Rajeev Chaddha, learned Counsel for the appellant and Shri Swetashwa Agarwal, learned Counsel appearing for claimants/respondents No. 1 to 4. Learned Counsel for the appellant has urged that the quantum of compensation awarded was excessive, the dependency has wrongly been worked and incorrect multiplier has been applied. It was further urged that the accident took place due to negligence of the deceased. On the other hand learned Counsel for the claimants has urged that in this appeal the appellant can only raise the questions permissible under Section 149(2) of the Act as no permission under Section 170 of the Act had been granted by the tribunal.
4. In Rita Devi v. New India Assurance Company Ltd. it was held by two judges of Hon'ble Apex Court that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against the award given by the Tribunal on merits. In another two judges decision of the Apex Court in United India Insurance Company Ltd., v. Bhushan Sachdeva it was held that where the insured fails to file an appeal to the High Court against the quantum of compensation awarded by the Tribunal, the insurer is entitled to file an appeal as the insured has failed to contest the claim and in that view of the matter, the insurer could be a person aggrieved. The Apex Court in three judges Division Bench decision in National Insurance Company Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. has resolved the conflict and has held that United India Insurance Co. Ltd. case does not lay down correct law. It held in paragraph 16 as under:
For the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in Sub-section (2) of Section 149 of the 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds.
5. The Court further in paragraph 32 held as under:
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 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.
6. The law has been settled that the Insurance Company can file an appeal challenging an award of the Tribunal only on limited grounds available to the insurer under Section 149(2) of the Act in absence of any permission granted by the tribunal under Section 170 of the Motor Vehicle Act. The insurance company could not challenge the quantum of compensation or negligence of parties etc. From the records, we do not find that any ground had been taken by the Insurance Company that there was any breach of insurance policy. We have also examined the records. We do not find that any permission had been applied by the Insurance Company under Section 170 of the Act and the same was either refused or granted by the Tribunal.
7. Thus, the appeal fails and is dismissed.
8. Office is directed to send back the records of the court below within one month.
9. The parties shall bear their own costs.