Appeal filed by Insurance Company held not maintainable.

P. SATHASIVAM, J.

The owner and insurer of the lorry bearing registration No. TAN 4334 are the appellants in the above appeal.

2. In respect of the death of one Dr. S.K. Chockalingam in a motor vehicle accident that had taken place on 25.01.1992, the respondent herein, who is the mother of the deceased filed a claim petition, praying for compensation of Rs.9,04,000/-. Before the Tribunal, the claimant examined herself as P.W.1 and three more witnesses as P.Ws.2 to 4 and also marked Exs.A.1 to A.29 in support of her claim for compensation. On the side of the respondents therein, neither anyone was examined nor any document marked in support of their defence. The Tribunal, on appreciation of the oral and documentary evidence and after holding that the accident was caused due to the negligence of the driver of the lorry in question, passed an award for Rs.3,10,000.00 with interest at the rate of 12% per annum from the date of petition till the date of deposit. Questioning the said award, the insured and the insurer of the lorry have preferred the present appeal questioning the quantum of compensation determined by the Tribunal.

3. Heard the learned Counsel for the appellants as well as the respondent.

4. Mrs. Pushpa Sathyanarayanan, learned counsel for the respondent - claimant raised an objection regarding maintainability of the above appeal, since the appellants question only the quantum of compensation determined by the Tribunal. According to her, inasmuch as the first appellant - owner of the lorry was set ex parte before the Tribunal and did not contest the claim petition, in the absence of specific permission by the Tribunal under Section 170 (b) of the Motor Vehicles Act, 1988 to contest the claim on all aspects by joining with the owner, the second appellant, i.e., Insurance Company is not entitled to question the finding regarding negligence and quantum of compensation. On the other hand, learned counsel appearing for the appellants would contend that since the present appeal is by the insured and the insurer, the appeal is maintainable and the appellants are entitled to question the finding of the Tribunal on all aspects.

5. In the light of the objection raised, we shall consider the maintainability of the appeal at the foremost. Before the Tribunal, with reference to various contentions made, the first appellant herein - first respondent therein, who is the owner of the lorry did not file a counter statement and he was set ex parte. It is the second appellant - second respondent therein, which is the Insurance Company filed a counter statement, contesting the claim petition. It is to be noted that the Insurance Company has not obtained permission under Section 170 (b) of the Motor Vehicles Act, 1988 to contest the appeal on all aspects. The present appeal has been filed by the owner and the Insurance Company. In this back ground, let us consider the various decisions relied on by both counsel.

6. Learned counsel for the respondent - claimant heavily relied on the recent decision of three Judge Bench of the Supreme Court in the case of National Insurance Co., Ltd., vs. Nicolletta Rohtagi reported in 2002 (4) C.T.C. 243. The question that was considered by the Supreme Court is,

" Where an insured has not preferred an appeal under Section 173 of the Motor Vehicles Act, 1988 against an award given by the Motor Accidents Claims Tribunal, is it open to the insurer to prefer an appeal against the award by the Tribunal questioning the quantum of compensation, as well as finding as regards the negligence of the offending vehicle? "

Their Lordships have referred to Sections 147 and 170 of Act, 1988. They also referred to the corresponding provisions from M.V. Act, 1939. After referring to the relevant provisions from 1939 Act and 1988 Act, the Hon'ble Supreme Court has held thus:-

"Thus, in common law, an insurer was not permitted to contest a claim of a claimant on merits i.e. offending vehicle was not negligent or there wa