Decided on December 20,2007

Jyoti Malhotra Respondents


- (1.) By way of this appeal, the appellant insurance company seeks to challenge the impugned award mainly on the ground that the offending vehicle bearing registration No. DL-1PA-1920 was never involved in the alleged accident and secondly, the Tribunal by ignoring the judgments of the Apex Court has wrongly applied the multiplier of 16. The award is also assailed by the appellant on the ground that the Tribunal has committed illegality in deducting 1/4th income of the deceased towards self expenses. The brief summary of the facts necessary for deciding the present appeal are set out as under:- On 06.01.2003 at about 9.00 p.m. near Monastery, ISBT, within the jurisdiction of PS Civil Lines, Sh. Rakesh Kumar Malhotra was driving his scooter bearing registration No. DL 1 SM 4500 and was hit by a bus bearing registration No. DL 1 PA 1920, being driven in the most rash and negligent manner by its driver, Sh. Prithviraj, who ran away along with the bus after hitting Sh.Rakesh Kumar Malhotra. Sh. Malhotra was removed to Sushruta Trauma Centre, from the site of the accident, where he succumbed to his injuries on 17.1.2003. A claim petition was filed on 05.06.2003 and award was made on 29.11.2005. Aggrieved with the said award, present appeal is preferred by the appellant insurance company.
(2.) I have heard learned counsel for the parties and have perused the records.
(3.) The present appeal has been preferred by the insurance company without taking over the defence of the owner to contest the claim on all or any of the grounds that are available to the owner insured. Mr.L.K. Tyagi, Advocate appearing for the respondents/claimants has taken a preliminary objection to the very maintainability of the present appeal in the absence of there being any permission in favour of the appellant under Section 170 of the Motor Vehicles Act to contest the case on any of the grounds as are available to the insured not merely confining to the statutory defences available to the insurer under Section 149(2) of the Motor Vehicles Act. In reply to the said objection of the respondents, counsel for the appellant vehemently submitted that respondent Nos.1 and 2, owner and driver of the offending vehicle were ex-parte and thereafter they were thoroughly cross-examined by the appellant insurance company and, therefore, even in the absence of any specific application moved by the appellant or permission granted by the Tribunal under Section 170 of the Motor Vehicles Act, the present appeal challenging the award on the ground of quantum can be maintained by the insurance company. Counsel also contended that in the written statement filed by the insurance company, this stand has already been taken by the appellant that in the event of the owner and driver willfully abstaining from the proceedings or on account of their failure to contest the claim the insurance company shall have the right to contest the claim petition by taking up all the defences as are available to it under the law.;

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