An insurance company can only appeal against an award on merits if it has been permitted to contest the case on merits by a specific reasoned order under Section 170 of the Motor Vehicles Act.

JUDGMENT :

P.K. Misra, J. - The Insurance Company has filed this appeal u/s 173 of the Motor Vehicles Act challenging the award of the' Claims Tribunal awarding a sum of Rs. 2.80,000/-as compensation with interest at the rate of twelve per cent from the date of the claim application. It was directed that the amount should be paid by the Insurance Company.

2. The accident occurred on 7-8-1994. Claim application has been filed by the widowed mother of the deceased, his dependent brother and unmarried sister. At the time of death, the deceased was a Central Government employee drawing a salary of about Rs.. 1,900/-. It is alleged that while the deceased was going on bi-cycle, the bus bearing registration number OR-04-9545 came from opposite direction in a high speed and suddenly swerved hitting the deceased who fell down and ran over the deceased. The deceased expired while being taken to the hospita1.

3. The owner of the vehicle did not contest in spite of notice and was set ex parte. The Insurance Company which had been impleaded as an opposite party in the claim application from the inception appeared and filed written statement denying the allegations made in the claim case.

4. The Claims Tribunal found that the accident took place on account of the negligent driving of the driver of the bus. It further found that the brother and sister who had filed the claim application along with the widowed mother of the deceased were dependents. Keeping in view the future prospects of the deceased, the Tribunal assessed Rs. 2.400/- to be the monthly income of the deceased and deducting one-third for his own expenses, and applying the multiplier of 13, came to the conclusion that a sum of Rs. 2.49,600/- was payable on that score.Adding Rs. 15,000/- towards loss of estate and Rs. 15,000/towards loss of consortium, the Tribunal rounded the compensation to a sum of Rs. 2,80,000/- and directed that the said amount should be paid by the Insurance Compay as the vehicle had been validly insured.

5. In this appeal, the learned Counsel for the Appellant has submitted that since death was of the son, the question of payment of Rs. 15,000/- towards loss of consortium does not arise and the Tribunal has awarded the said amount mechanically without application of mind. Similarly, it has been contended that at the time of death, the income of the deceased was about Rs. 1,900/- and the Tribunal could not have assessed the monthly income of the deceased at Rs. 2.400/- by considering the future prospects. It is further submitted that since the widowed mother of the deceased (one of the claimants) was about 47 years old. the multiplier of 13 appears to be on higher side.

6. The learned Counsel appearing on behalf of the claimant-respondents submitted that the appeal at the instance of the Insurance Company challenging the quantum of compensation is not maintainable. He has furtper submitted that future prospects in life can be taken into account while considering the average contribution and the compensation awarded by the Tribunal is not excessively high.

7. Prima facie, it appears that there was some amount of non-application of mind on the part of the Tribunal, inasmuch as the question of paying any amount towards loss of consortium could not have arisen in the claim application in the case of death of a son, However, though no amount was payable, it appears that the Tribunal has not given any sum towards funeral expenses. The question as to whether the award is otherwise excessively high or not could have been considered but for the question of maintainability of the appeal itself.

8. In course of hearing, the learned Counsel for the claimant-respondents had placed reliance upon the decision of the Supreme Court reported in 1997 (2) T.A. C. 1 (S.C.) (Narendra Kumar and Anr. v. Yarenissa and Ors. where after noticing the relevant provisions contained in the Motor Vehicles Act, 1939, the Supreme Court observed as follows:

5. It is a different matter that claimant