INTHEHON'RLEHIGHCOIIRTOFJUntr'ATUREAT^IA^PL^ v. India

Ramesh Chandra Sarkar, S/o Shri H.C. Sarkar, aged 48 years Occupation - Service, Permanent R/o villageCharcha, Chirrniri, P.S.andTahsil Chirmiri, District Korea (CG.) NONAPPLICANTN0.1

2. Paneshwar @ Panameshwar, S/o ShriSanuk Sai, Caste kanwar, aged about 27 years, Occupation - Driver, Permanent R/o Village Kakna, ' Patelpara, Police Chowki Banyon, P.S. Dhaurpur, DistrictSurguja (CG.) NONAPPLICANTNO. 2 Nadhiyaro Bai, Wd/o Late Bandhan Ram, Aged about 38 years, Occupation - House wife, permanent R/o Village Kakna(Nawapara), P.S. Bariyon^Tahsil ; Dhaurpur, District Surguja (CG.y

4. BifaiyaBaiD/pLateBandhahRam, Aged about 19 years, Occupation-House PermanentR/0 Village Kakna (Nawapara) P.S. Bariyoh, Ta.hsil DhaurpurDistrictSurguja(GG.) . APPLICANTS/CLAIMANTC Claim in Appeal for setting aside theaward, valued at Rs. 8,64,000 /^ Court fee affixed Rs. |5/- (Receipt regarding deposition of Rs. 25,000/-, ^^ is being attached) H3GH COURT OF CHHATTISGARH AT BILASPUR Smgle Bench: Hon'ble Shri Justice Sanjay K. Agrawal IVIisc. Appeal (C) No. 936 of 2013 APPELLANT Non-applicant No.3 United India insurance Company Limited. Versus RESPONDENTS Ramesh Chandra Sarkar & others. n—«»»-^ Miscellaneous appeal underSection 173 ofthe Motor VehidesAct.1988 Appearance ofthe Counsei: Shri Sanjay S. Agrawal, counsel for the appellant. ORDER (18.11.2013) Heard on the question of admission. (1) Thls is insurer's appeal against the award dated 19.07.2013 passed by 3rd Additionai Motor Accident Ciajms Tribunal, Ambikapur, District Surguja (for short 'the Tribunal') in claim case No. 4S/2W2. (2) As against the compensation of Rs.76,75.000/- claimed by legal representatives of deceased- Bandhan Ram, aged about 38 years by fi!ing ciaim petition under Section 166 ofthe Motor Vehictes Act for his death in the motor accident on 02.03.2013, the Tribunal awarded a tota! sum of Rs.8,64,000/- as compensation aSong with interest @ 6% per annum from the date of flling of the claim petition till the date of actual payment. (3) Learned Tribunal, on a close scrutiny of the evidence led, held; the accident had occurred due to rash and negligent driving of Scooter bearing registration No. CG 16 ZE 1778 by its driver - Paneshwar ^ Panameshwar i.e. resoondent No. 2? Bandhan Ram ^.^m^s^^sss-^. j^^rr 'y^ i Y^ died on account of injuries sustained by him in the said accident; appellant/lnsurance Company liable for payment of compensation as It could not establish the vioiation of policy conditions; assessed and awarded aforesaid sum as compensation to the claimants. (4). Shri Sanjay S. Agrawat, learned counsej appearing for the appeflant wouid submlt the amount of compensation of ? 8,64,000/- awarded by the TrSbunal is shockingly on higher side whlch deserves to be suitably reduced. (5) I have heard learned counsel for the appellant and perused the material avai}able on record including award impugned. (6) On from the learned counsel appellant/lnsurance Company whether permission under Section 170 of the MV Act was granted to the Insurance Company to contest the matter on merits, learned counsel the appellant/insurance Company submits that no such permission was granted to the appejlant/lnsurance Company to contest the matter on merits and he submits that though the Insurance Company has no right chalienge the quantum of compensation as it has got jjmited defence as provlded under Section 149(2) of the MV Act in the absence of permission from the Tribunal to avail the defence on behalf of the insurer as required under Section 170 ofthe Act. (7) The Supreme Court in case of National Insurance Co. Ltd. Vs. Nicolletta Rohtaai & Ors. has held as under: :.^ "15. It is relevant to note that Parliament, while enacting sub- section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not fjnd place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If parliament had (2002) 7 SCC 456 IN^ ^ f^. /^y%^ / i \I^"l^^s^^" •^J^ intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of condjtions of insurance policy in sub-section (2) of Section 149. If we permit the jnsurer to take any other defence other than those specified in sub-section (2) of SectJon 149, it would mean we are adding more defence to the insurer in the statute which is neither found in the Act nor was intended to be included." (8) Likewise, recently the Supreme Court in case of Josphine James Vs. United India Insurance Co. Ltd. & Anr.2 has held as ; \ under: Rs.4,20,000/- compensation "17. The said order wasrevjewed by the High Court at the instance of the appellant in view of the aforesaid decjsion on the question of maintainability of the appeal of the Insurance Company. The High Court, in the review petition, has further reduced Rs.6,75,000/- which was eariier awarded by it. This approach is contrary to the facts and law laid down by this Court. The in reducing the quantum of compensation under High Court, loss of dependency of the appellant, was the heading of required to follow the decision rendered by three judge Bench of this Court in Nicolletta Rohtagi case (supra) and eariier decisions wherein this Court after interpreting Section 170 (b) in the absence of permission obtained by the Insurance Company from the Tribunal to avail the defence of the insured, it is not permitted to contest the case on merits. The aforesaid legal principte is applicable to the fact situation in view ofthe three judge bench decision referred to supra though the correctness of aforesaid decision Is referred to larger bench. This important aspect of the matter has been overlooked by the High Court while passing the impugned judgment and the said approach is contrary to law laid down by this Court." the MV Act, has rightly held that (9) In a recent decision of the Supreme Court in case of Rekha Jain & Anr. Vs. National Jnsurance Co. Ltd.3 again it has been held that 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 ofthe 1988 Act and not more and forthat reason ifan insurer is to fiie an appeal, the challenge in the appeal would confine to only thosegrounds. 2013(10)8cale340 2013 AIRSCW 4616 .."s.":^ ^ --^) (10) Admittedly since no permission under Section 170 of the MV Act was granted to the appellant/lnsurance Company, and therefore, 1 do not flnd any infirmity in the order impugned as the Insurance Company is not entitled to challenge the quantum in absence of permlssion under Section 170 ofthe Motor Vehicles Act (11) No other point was pressed before me. (12) Consequently, the appeal fails and is hereby dismissed. (13) No order as to costs. Sd/- SanjayK.Agrawal Judge ^_Q-J'*=-?5ftt.* ;.;