B.S.VERMA,J. - (1.) HEARD learned counsel for the appellant. This appeal, preferred under Section 173 of Motor Vehicles Act, is filed on the ground that learned Tribunal vide order dated 25.03.2011, has awarded compensation in excessive, which is grossly erroneous and not in conformity with the provisions of Motor Vehicles Act. Learned counsel for the appellant contended that learned tribunal has wrongly assessed the income of the deceased on the basis of the income tax returns, which are not proved by any witness of the concerning Income Tax Department. He further contended that learned tribunal has erred in law by not passing any order on the application under Section 170 of Motor Vehicles Act, filed on behalf of the appellant. I have perused the impugned judgment and award passed by the Tribunal.
(2.) LEARNED counsel for the appellant has also assailed the impugned judgment and award on the question of quantum of compensation and it has been submitted that the amount of compensation awarded by the Tribunal is excessive. This argument is not at all tenable in the eye of law. It is now well settled law that the scope of defence available to the Insurance Company in the present case is limited as covered by the provisions of Section 149(2) of the Act and it is not open to the appellant to challenge the quantum of compensation in appeal. The Apex Court in National Insurance Co. Ltd. Chandigarh Vs. Nicolletta Rohtagi and others, (2002) 7 Supreme Court Cases, 456, in the concluding para 18 has observed that “the consistent view of this Court had been that the insurer has no right to file an appeal to challenge the quantum of compensation or finding of the Tribunal as regards the negligence or contributory negligence of offending vehicle.” It has further held in paragraph 19 that “In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation. Therefore, the appeal is liable to be dismissed in view of the law laid down by the Apex Court in National Insurance Co. Ltd. Chandigarh Vs. Nicolletta Rohtagi and others, (2002) 7 Supreme Court Cases, 456. Even otherwise the learned tribunal on the basis of Income Tax Return has calculated the income of deceased by relying upon cogent evidence and dependency has been rightly calculated. I find no error in calculation of the compensation on the basis of income of deceased since the tribunal has dealt this issue in detail. Therefore, the appeal on this count also is devoid of merit. No other ground has been raised or pressed in this appeal. Appeal is dismissed summarily. The statutory amount deposited by appellant in appeal shall be remitted to MACT concerned.;