Back
2008 Supreme(All) 1929
ALLAHABAD HIGH COURT
Rajes Kumar, Bala Krishna Narayana
NATIONAL INSURANCE CO LTD
Versus
RENU MISHRA
Decided On : 22 August 2008
F. A. F. O. No. 234 of 2008
R.C.SHARMA,
Permission under Section 170 of the Motor Vehicles Act is necessary for the maintainability of an appeal under Section 173.
Headnote:
Motor Vehicles Act - Permission under Section 170 - The court held that unless permission under Section 170 of the Motor Vehicles Act is granted to contest the case, the appeal filed under Section 173 is not maintainable.
Fact of the Case:
The appeal was filed against the order passed by the Additional District Judge in a claim petition. The appellant, an insurance company, argued that the claim petition was not maintainable due to lack of permission under Section 170 of the Motor Vehicles Act.
Finding of the Court:
The court rejected the appellant's argument, stating that the appeal filed under Section 173 is not maintainable without the permission under Section 170. The court relied on the decision of the Apex Court in a similar case.
Issues: Maintainability of the appeal under Section 173 without permission under Section 170 of the Motor Vehicles Act.
Ratio Decidendi: The court's decision was influenced by the requirement of permission under Section 170 for maintainability of the appeal under Section 173.
Final Decision: The appeal was dismissed, and the office was directed to remit the statutory amount deposited to the concerned Tribunal within 3 weeks.
Present appeal has been filed under Section 173 of Motor Vehicles Act, 1988 against the order dated 19. 11. 2. 007, passed by Additional District Judge (Court No. 12)/m. A. C. T. , Lucknow in Claim Petition No. 132 of 2005, Smt. Renu Mishra and others v. Sanjay Kumar and others.
2. Appellant is the insurance company. Admittedly, the permission under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as "act") has not been granted. Learned counsel for the appellant submitted that an application under Section 170 of the Act was moved before the Tribunal but no order has been passed. He further submitted that the claim petition was not maintainable before the Tribunal for the various reasons.
3. We are afraid to accept the argument of learned counsel for the appellant. Unless the permission under Section 170 of the Act is granted to contest the case, which was available to the owner of the vehicle, the appeal filed by the appellant under Section 173 of the Act is not maintainable.
4. Reliance is placed on the decision of the Apex Court in the case of National Insurance Company Ltd. , Chandigarh v. Nicolletta Rohtagi and others, (2002) 7 SCO 456 : 2003 (1) AWC 23 (SC ). No case under Section 149 (2) of the Act has been made out. The question of maintainability of the claim petition, which was filed before the Tribunal can only be entertained and considered when the appeal of the appellant is maintainable under Section 173 of the Act.
5. In view of the above, appeal fails and is accordingly, dismissed. Office is directed to remit the statutory amount deposited to the concerned Tribunal within 3 weeks.
