The appellant-insurer's challenge to the quantum of compensation was not maintainable as it exceeded the defences specified in Sec. 96 (2) of the Motor Vehicles Act.

( 1 ) THIS is an appeal by the Insurance Company directed against the award dt. 24-12-1985 passed by the Motor Accidents Claims Tribunal, Indore in Claim Case No. 49/80 whereby the learned Tribunal has awarded compensation of Rs. 50,000/- for the death by motor accident of the deceased Mohammad Amin with interest @ 10% per annum from the date of the petition till realisation.

( 2 ) THE facts giving rise to this appeal, briefly stated, are as follows :- it is not disputed that on 21-1-1980, the truck bearing Registration No. MPM 3297 hit the deceased Mohammail Amin who was going on a bicycle near Premsukh Talkies, Indore with the result that the deceased fell down and was crushed under the wheels of the truck. The deceased was moved to the M. Y. Hospital, where he succumbed to the injuries. The respondents Nos. 1 and 2 who are parents of the deceased, filed the claim petition u/s. 110-A of the Motor Vehicles Act against the respondents Nos. 3 and 4, the owner and the driver of the truck in question joining the Insurance Company which had insured the owner in respect of the truck, as a party non-petitioner.

( 3 ) THE learned Tribunal, on appreciation of evidence adduced in the case, found that the accident resulting in the death of Mohammad Amin took place on account of rash and negligent driving of the truck in question by its driver. The learned Tribunal considering the evidence that the deceased Mohammad Amin was aged 14-15 years and was an intelligent student of Class VII, has awarded a total compensation of Rs. 50,000/with interest as aforesaid against the owner, driver and the Insurance Company. Being aggrieved by this award, the Insurance Company alone has filed this appeal on the ground that the accident took place due to contributory negligence of the deceased and that there was arbitrary determination of the amount of compensation which was not based on any evidence.

( 4 ) LEARNED counsel for the respondent-claimants has raised a preliminary objection that the owner and the driver having not challenged the findings of rash and negligent driving and the determination of quantum of compensation arrived at by the learned Tribunal, it was not open for the Insurance Company to challenge the same in the absence of any collusion having been pleaded or found between the claimants and the owner and driver of the truck in question. It is also urged that it cannot be said that the Claims Tribunal has found that the owner and the driver of tae truck have failed to contest claim as envisaged under S. 110-C (2a) of the Act. In the circumstances, the appellant-insurer is not entitled to contest the claim on any of the grounds that are available to the owner and the driver who have not filed any appeal against the award. Learned Counsel has further submitted that the appellant-Insurance Company could have defended the claim for compensation only on the grounds specified in S. 96 (2) and none other. But the appellant has not raised any one of those grounds specified in S. 96 (2 ). This appeal of the Insurance Company, according to the submission of the counsel for the respondents is, therefore, not maintainable.

( 5 ) LEARNED counsel for the appellant has contended that there is collusion between the claimants and the owner and driver which is evidenced from the fact that although a case of contributory negligence was pleaded in defence by the owner and the driver, the driver was not examined in the case. This contention of the learned counsel, in my opinion, has no substance. The appellant-Insurance Company could have moved an application before the Tribunal for examination of the driver and could have alleged collusion and sought permission to contest the claim also on the grounds that were available to the owner and the driver. The proceedings of the Tribunal show that there was ample opportunity for the Insurance Company to move necessary application on that ground if it suspected a collusion as now alleged. Such an