1 2025:CGHC:28699 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 339 of 2020 1. National insurance company limited through Divisional Manager, Divisional Office, by the side of Lal Ganga Shoping Mall, GE Road, Raipur, Chhattisgarh. ... Appellant-Insurer versus 1. Smt. Rannu Tripathi W/o Late Harihar Nath Tripathi, Aged About 48 Years Resident - Veer Sawarkar Nagar, Heerapur, Thana Kabeer Nagar, Raipur, District - Raipur, Chhattisgarh 2. Rukhmani Tripathi D/o Late Harihar Nath Tripathi Aged About 30 Years Resident - Veer Sawarkar Nagar, Heerapur, Thana Kabeer Nagar, Raipur, District - Raipur, Chhattisgarh, 3. Jyoti Tripathi D/o Late Harihar Nath Tripathi Aged About 28 Years Resident - Veer Sawarkar Nagar, Heerapur, Thana Kabeer Nagar, Raipur, District - Raipur, Chhattisgarh, 4. Shankar Dayal Tripathi S/o Late Harihar Nath Tripathi Aged About 26 Years Resident - Veer Sawarkar Nagar, Heerapur, Thana Kabeer Nagar, Raipur, District - Raipur, Chhattisgarh, 5. Bramha Dayal Tripathi S/o Late Harihar Nath Taripathi Aged About 24 Years Resident - Veer Sawarkar Nagar, Heerapur, Thana Kabeer Nagar, Raipur, District - Raipur, Chhattisgarh. 6. Brijesh Yadav S/o Ramsagar Yadav Aged About 29 Years Resident Plot Number -739, Trimurti Nagar, Deshpandey Laut Pardi Bhandiwadi, Nagar, District - Nagpur(Maharashtra) (Driver Of Vehicle Truck No. M.P. - 22 H - 0312), 2 7. Mangla Yadav S/o Shankar Yadav Aged About 29 Years Resident Through Orissa - Raipur Road Line, Behind Payal B NR Railway Crossing, Old Pardi Naka, Nagpur, District Nagpur, (Maharashtra) (Vehicle Owner of Truck No. MP22-H– 0312). ... Respondents For Appellant : Mr. Sudhir Agrawal, Advocate For Respondent No.1 to 5 : Ms.Prachi Singh, Advocate on behalf of Mr. Raghvendra Pradhan, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 27/6/2025 1. Appellant-Insurance Company has preferred this appeal challenging the quantum of compensation awarded to the claimants by the Chief Motor Accident Claims Tribunal, Raipur (for short ‘the Claims Tribunal’) vide award dated 9.12..2019. 2. Facts of the case in brief are that the claimants/respondent Nos.1 to 5 herein have claimed compensation of Rs.59,50,000/- by filing an application under Section 166 of the Motor Vehicles Act, 1988 for death of Hariharnath Tripathi, who died in the motor accident near Bhanpuri Chowk, Raipur from truck bearing registration No.MP22-H-0312 due to rash and negligent driving by its driver. 3. Non-applicant No.1 and 2 proceeded ex-parte and as such, reply has not been filed on their behalf. 4. Non-applicant No.3-Insurance Company filed its reply to claim application denying dependency of claimants on the 3 deceased as also allegation of rashness and negligence on the part of driver of offending vehicle. It was further pleaded that the offending vehicle was plied in breach of the policy conditions. 5. The Claims Tribunal upon appreciation of oral and documentary evidence of the respective parties, allowed the application in part, awarded total compensation of Rs.20,06,594/- to claimants and held the insurance company liable to pay the amount of compensation. 6. Learned counsel for appellant vehemently contended that the insurance company has filed this appeal challenging the quantum of compensation awarded by the Claims Tribunal. He submits that the Claims Tribunal has assessed age of deceased as 49 years for computing the amount of compensation overlooking the documentary evidence available in the shape of income tax return filed by claimants themselves to prove the income of deceased, in which date of birth of deceased is mentioned as ‘23.12.1960’, which means on the date of accident i.e. 22.4.2017, deceased was about 57 years of age. Thus, the Claims Tribunal committed error in adding 25% towards loss of future prospects and applying multiplier of 13. He further contended that the insurance company has been permitted to contest the claim on all grounds under Section 170 of the Act of 1988 by the Claims 4 Tribunal, therefore, it has right to challenge the quantum of compensation. 7. Learned counsel appearing on behalf of claimants/respondents No.1 to 5 vehemently opposes submissions of learned counsel for appellant and submits that the insurance company cannot challenge the quantum of compensation and as such, appeal filed by the insurance company challenging the quantum is not maintainable. 8. Heard learned counsel for the respective parties and perused the impugned award and documents available in record of the Claims Tribunal. 9. So far as objection with respect to maintainability of appeal is concerned, in case of National Insurance Co. Ltd. vs. Nicolleta Rohatgi reported in (2002) 7 SCC 456 Hon’ble Supreme Court has observed thus:- “26…...Thus, unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 are satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any 5 appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one Scheme and 8 if we give any different interpretation to Section 173 of the 1988 Act, the same would go contrary to the scheme and object of the Act." 10. In case of Josphine James vs United India Insurance Co. Ltd., reported in (2013) 16 SCC 711, the two Judges Bench of Hon'ble Supreme Court has observed that though decision in Necolleta Rohatgi’s case (supra) has been referred to Larger Bench, the same has not been overruled yet and thus the ratio in case of Nicolletta Rohatgi (supra) will be still applicable. 11. In case of United India Insurance Co. Ltd. vs. Shila Datta, reported in (2011) 10 SCC 509 the Supreme Court has observed thus:- “20.When a statutory notice is issued under Section 149 (2) by the tribunal, it is clear that such notice is issued not to implead the insurer as a party- respondent but merely to put it on notice that a claim has been made in regard to a policy issued by it and that it will have to bear the liability as and when an award is made in regard to such claim. Therefore, it cannot, as of right, require that it should be impleaded as a party-respondent. But it can however be made a party-respondent either by the claimants voluntarily in the claim petition or by the direction of the Tribunal under Section 170 of the Act. Whatever be the 6 reason or ground for the insurer being impleaded as a party, once it is a party-respondent, it can raise all contentions that are available to resist the claim.” (emphasis supplied) 12. Thus, it is well settled that an insurer is not entitled to challenge the award on the question of quantum unless permission under Section 170 of the Act of 1988 has been obtained in the proceeding before the Claims Tribunal. Once the conditions precedent embodied in Section 170 of the Act of 1988 are satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. 13. In the instant case, the Insurance Company was impleaded as third respondent. The driver and owner of the vehicle, though appeared before the Tribunal, did not contest the proceedings. They did not file the written statement nor did they choose to give evidence before the Tribunal. After the driver and owner of offending vehicle proceeded ex-parte, an application under Section 170 of the Act of 1988 was filed by the Insurance Company seeking permission to raise all the points which could have been raised by the driver and owner of the offending vehicle. Said application has been allowed vide order dated 8.5.2019 and permission was granted to the insurance 7 company. Under these circumstances, there is no impediment for entertaining the appeal preferred by the appellant insurance company on the question of quantum. Consequently, this Court does not find any force in the objection raised with respect to maintainability of appeal at the instance of insurance company challenging the quantum and it is hereby repelled. 14. As regards quantum of compensation, claimants/ respondent Nos.1 to 5 filed an application seeking compensation for the motor accidental death of deceased pleading that on the date of accident deceased was 49 years of age but in support thereof not filed any documentary evidence. The Claims Tribunal relying on the age of deceased mentioned in the inquest (Ex.P-4), postmortem report (Ex.P-7), has taken the age of deceased as 49 years on the date of accident and proceeded to compute the compensation payable to claimants. However, perusal of computation of income filed along with Income Tax returns as Ex.P-10 to Ex.P-14 by the claimants themselves to prove income of deceased, would reveal that in this document, date of birth of deceased is mentioned as “21.12.1960”. These income tax returns placed on record by claimants themselves show that the same were submitted by the deceased himself before his death. Thus, the only documentary evidence which was on record with regard to the age of the deceased was the computation of income attached with income tax return, 8 according to which date of birth of deceased was 21.12.1960. The Claims Tribunal has not considered the document showing date of birth declared by the deceased but erroneously relied on the age mentioned in the documents prepared by the police on assumption. Thus, considering the computation of total income attached with Income Tax return, it can safely be concluded that the age of deceased at the time of the accident could not have been 49 years but was 57 years. Under these circumstances, the finding of the Claims Tribunal based on the inquest (Ex.P-4), postmortem report (Ex.P-7), is erroneous and is hereby set aside. It is ordered that on the date of accident, age of deceased was 57 years. 15. For the foregoing reasons, this Court proposes to recalculate the amount of compensation. 16. Accordingly, the annual income of deceased is taken as Rs.1,58,900/- as assessed by the Claims Tribunal, and as deceased was found to be 57 years old, 10% is to be added towards loss of future prospects and after adding 10% to assessed income of deceased, the annual income of deceased comes to Rs.1,74,790/-. Out of this amount, one- fourth is to be deducted towards personal and living expenses and after deducting one-fourth, total loss of yearly dependency would come to Rs.1,31,093/-. As the deceased is found to be 57 years of age on the date of accident, as held above, multiplier of 9 would be applicable and after applying multiplier 9 of 9, total loss of dependency would come to Rs.11,79,837/-. Besides this, respondents No.1 to 5 are also entitled for a sum of Rs.40,000/-; Rs.15000/- for loss of estate and Rs.15000/- for funeral expenses. Now, the claimants/ respondents No.1 to 5 will be entitled for a total compensation of Rs.12,49,837/- in place of Rs.20,06,594/- as awarded by the Claims Tribunal. This amount of compensation shall carry interest @ 9% p.a. from the date of filing of application till actual realization. Any amount disbursed to appellants pursuant to the impugned award will be adjusted from the amount of compensation as awarded above. Rest of the conditions of impugned award shall remain intact. 17.In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge roshan/- SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI