- (1.) THIS appeal is made by the insurance company against an award of the Motor Accidents Claims Tribunal dated 14. 8. 2007 under section 166 read with section 140 of, the Motor Vehicles act, 1988 (hereinafter called as 'the Act')on account of wrong fixation of quantum of compensation and negligence of the deceased. An application was made by the insurance company under section 170 of the Act to contest the claim on the ground of collusion between owner of the vehicle and claimant of the compensation which was rejected by the Tribunal on or about 2. 7. 2007. A limited observation has been made by the Tribunal which implies that since owner has already filed his objection against the claim of the claimant, the application of the insurance company cannot be entertained. Therefore, on the ratio of the judgment in United India Insurance Co. Ltd. v. Jyotsnaben Sudhirbhai Patel, 2003 acj 2107 (SC), followed by this Division bench in United India Insurance Co. Ltd. v. Krishna Kumar, F. A. F. O. No. 2087 of 2007; decided on 1. 8. 2007 and circulated to all District Judges of the State of Uttar pradesh, we can construe that minimum reason as above will suffice the cause of disposal with reasons to meet the technicality.
(2.) THE appellant insurance company slept with the order of the Tribunal with-out taking any step and has preferred this appeal when the Tribunal finally passed the award on 14. 8. 2007 taking both the plea of rejection of his application as well as the award ignoring laid down principle by the three-Judge Bench of the Supreme court in National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC), followed by Division Bench judgment of this court in Oriental Insurance Co. Ltd. v. Manju, 2007 ACJ 1538 (Allahabad ). In the case of Nicolletta Rohtagi (supra), the supreme Court has categorically held as follows: " (31) We have already held that unless the conditions precedent specified in section 170 of 1988 Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not implead the insurance company to contest the claim in such cases it is open to an insurer to seek permission of the tribunal to contest the claim on the grounds available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case, where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing an appeal on grounds specified in subsection (2) of section 149 of 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res Integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award. (32) For the aforesaid reasons, our answer to the question is that even if no appeal is preferred under section 173 of 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. "
(3.) THE Division Bench of the High court specifically considered the issue that if the application under section 170 of the Act is rejected, whether the insurance company will be remediless or not and ultimately held either the appellant insurance company will go for rectification of the award if it is victim of circumstances before the Tribunal by establishing such fact or it can take out an application under article 227 of the Constitution before the high Court challenging the order passed in the application under section 170 of the act. The present appeal is in the teeth of such judgments. Learned counsel appearing for the appellant contended that in spite of rejection of the application under section 170 of the Act, it can prefer appeal from the judgment and award of the Tribunal as a matter of course being an aggrieved under section 173 of the Act. He placed reliance on New India Assurance Co. Ltd. v. Shanti Pathak, 2007 ACJ 2188 (SC), by saying that the three-Judge Bench of the apex Court entertained the appeal on merit in spite of rejection by the High Court on the ground of not having permission to contest the claim.;