JUDGMENT
J.P. Singh, J.
1. National Insurance Company Limited has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 5.5.2006 of Motor Accidents Claims Tribunal, Reasi, awarding an amount of Rupees Five lac seventy one thousand to the wife and five minor children of one Nagender, aged 40 years, who died in a motor vehicular accident on 20th of December, 2004 while walking on the road side when he was hit by Tractor No. JK02D-5242 driven by Tilak Raj. This Tractor was insured with the Appellant-Insurance Company.
2. The claim lodged by the claimants was contested only by the appellant because the owners and driver of the vehicle were set ex-parte. In order to decide the rival contentions, the Tribunal framed five issues, which reads thus:
(a) Whether an accident took place on 20.12.2004 at Reasi due to the rash and negligent driving by driver of the offending vehicle in which the deceased Negender died? OPP.
(b) In case issue No. 1 is proved in affirmative, how much amount of compensation the petitioners are entitled to? OPP
(c) Whether the offending vehicle was being driven in violation of the terms and conditions of the Insurance Policy and as such the respondent No. 4 i.e. Insurance Company is not liable to pay any compensation to the petitioners? OPR-5.
(d) Whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of the accident? OPR.
(e) Relief.
3. The claimants led their evidence whereas the appellant, did not opt to lead evidence to rebut the case set up by the claimants.
4. Finding the monthly income of deceased Nagender as Rs. 3750/- per month and giving allowance of the future earning prospects of the deceased, the monthly dependency of the family on the earnings of the deceased was assessed at Rs. 4500/-. Guided by the IInd Schedule appended to the Motor Vehicles Act, 1988 and applying 12 as the multiplier, the Tribunal awarded an amount of Rupees Five lac seventy one thousand in favour of the claimants after deciding issue Nos. 1,2 and 5 in favour of the claimants and Nos. 3 and 4 against the appellants.
5. On this appeal coming up for consideration, Mr. Sheikh Altaf Hussain, learned Counsel for the claimants raised a preliminary objection that the appeal by the Insurance Company is not maintainable because it had not sought permission of the Tribunal in terms of Section 170 of the Motor Vehicles Act, 1988 to contest the claimants’ claim on grounds other than those permissible to an Insurer under the Motor Vehicles Act, 1988. Learned Counsel submits that in the absence of any evidence on records by the Insurance Company on other issues, the dispute regarding quantum of compensation raised by the appellant in the present appeal cannot be gone into because the appeal on that count may not be maintainable in view of the law laid down in Shankarayya and Anr. v. United India Insurance Co. Ltd. .
6. Mr. Baldev Singh, learned Counsel appearing for the appellant, on the other hand, submits that in view of the judgments reported as 2005 AC] 336, New India Assurance Co. ltd. v. Bhawa Devi and Ors. and , New India Assurance Co. Ltd. v. Jamna Devi and Ors. the appeal was maintainable even if no permission had been sought by the insurer to contest the claim on ground other than those which were available to an Insurer under the Motor Vehicles Act.
7. I have considered the submissions of learned Counsel for the parties and gone through the judgments cited by the learned Counsel in support of their contentions.
8. In so far as Bhawa Devi’s case reported as 2005 AC] 336 is concerned, it does not deal with the point in issue because all what the judgment holds is that grant of permission by the Tribunal under Section 170 of the Motor Vehicles Act, sans reasons in support thereof, would not debar an Insurer to contest the claim and file an appeal against the award of the Tribunal. This judgment does neither deal nor dwell upon the question which has been raised by learned Counsel for the respondents in the present case. This judgment cannot thus be read to be laying down any such proposition of law as demonstrated by learned Counsel for the appellant. The other judgment relied upon by learned Counsel for the appellant is Jamna Devi’s case reported as 2006 ACJ 1602. This judgment too does not lay down any law as such that the appeal would be maintainable in the absence of permission by the Tribunal under Section 170 of the Motor Vehicles Act. The Bench, in this case, had taken a view on the facts of the case that the compensation was excessive and exorbitant and it would be proper for the appellate Court to fix just and reasonable compensation. This judgment cannot thus be pressed into service by the appellant to urge that the appeal would be maintainable regardless of the permission of the Tribunal to contest the claim on the grounds other than those which are available to an Insurer under the Act. In view of the judgment of Hon’ble Supreme Court of India reported as , Shankarayya and Anr. v. United India Insurance Co. Ltd and Anr., which is directly on the point, and lays down that an Insurer would not have any right to appeal to question an award on grounds other than those which are available to an Insurer under the Motor Vehicles Act, in the absence of permission granted under Section 170 of the Motor vehicles Act to it to contest the claim before the Tribunal, I am constrained to hold that the appeal filed by the appellant-Insurance Company in the absence of permission under Section 170 of the Motor Vehicles Act is not maintainable. Preliminary objection raised by Mr. Sheikh Altaf Hussain, learned Counsel for the claimants prevails and is, accordingly, allowed.
9. This appeal is thus held to be incompetent and is, accordingly, dismissed. The appellant shall deposit the awarded amount in this Court within a period of four weeks, whereafter it shall be released in favour of the claimants in terms of the award after their proper identification.