ORDER
A.K. Mishra, J.
1. Appellant-New India Insurance Co., has filed this appeal challenging the award dated 27-7-93 passed by the learned Claims Tribunal, Jashpur Nagar arising out of accident which took place on 1-3-91. In the said accident, Gurmeet Singh, the driver of the truck bearing registration No. MIT 9011, died due to fall of the truck in a nullah. Deceased Gurmeet Singh was aged about 26 years and was earning Rs. 1,600/- at the relevant time.
2. Insurance Company in its written statement has contended that accident took place owing to the fact that deceased was heavily drunk and was himself negligent while driving the truck and as such he was not entitled to claim compensation. Total sum of compensation claimed by the appellant-claimant is for Rs. 1,40,000/-.
3. Learned Tribunal has found that tyre of the front wheel of the truck got burst due to which accident had taken place. As per the report of mechanical examination of the truck the finding has been recorded by the Claims Tribunal. It has been held that it was not a case of negligence of the deceased. Income of the deceased was assessed at Rs. 1,600/- per month. However, a sum of Rs. 1,000/- was deducted towards the personal expenditure and the dependency of Indersingh, the claimant was assessed at Rs. 600/- per month. Annual dependency was arrived at Rs. 7000/-. Multiplier of 20 was applied. Though the multiplier applied appears to be on higher side yet the quantum of compensation can not be challenged by the Insurance Company in appeal. It is not a defence, available to the Insurance Company under Section 149 of the Motor Vehicles Act. Defences of the Insurance Company are very limited as provided under Section 149(2) of the MV Act which are as under :–
“(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely;
(i) a condition excluding the use of the vehicle. (a) for hire or award, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or award, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a motor cycle; or (d) without side-car being attached where the vehicle is a motor cycle; or
(iii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iv) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by non-disclosure of a material fact or by a representation of fact which was false in some material particular.”
4. In the instant case dependency which has been arrived at by the learned Claims Tribunal is extremely on lower side and the amount of Rs. 1,40,000/- has been rightly awarded by the Claims Tribunal. It can not be said to be an excessive amount awarded by way of compensation. Quantum of compensation is not the defence available to the Insurance Company. Thus it is not open for the insurance company to file an appeal for reducing the amount of compensation. Negligence is also not one of the defences available to the insurance company under Section 149 of the Motor Vehicles Act.
5. Faced with the aforesaid position of law, learned counsel for the appellant has vehemently submitted that owner of the truck remained ex-parte before the Tribunal. As such permission under Section 170 of the M.V. Act should be granted to contest the claim on any of the grounds. Section 170 of the M.V. Act is extracted as below :–
“Section 170. Impleading insurer in certain cases.– Where in the course of any inquiry, the Claims Tribunal is satisfied that–
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim,
it may, for the reasons to be recorded in writing direct that the insurer who may be liable in respect of such claim, shall be impleaded shall thereupon have, without prejudice to the provisions contained in Sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.”
6. It may be seen that it is not a case of collusion between the persons making the claim and the person against whom the claim is made. Secondly the section applies in case the person against whom the claim is made, has failed to contest the claim. In such a situation Claims Tribunal in the course of inquiry, directs the insurer who may be liable in respect of such a claim shall be impleaded as party to the proceedings and Insurance company has right to contest the claim on or any of the grounds which are available to the person against whom the claim is made. In such event defences which are available to the Insurance Company under Section 149(2) of the Motor Vehicles Act are not a bar for it to raise other defences available to the person against whom the claim has been made. It may be seen that section applies specifically in the course of any inquiry by the learned Claims Tribunal. The provision does not apply for the first time at the appellate Stage.
7. In the instant case no permission was sought before the Claims Tribunal by the Insurance Company to raise the defences which were not available to the Insurance Company by virtue of Section 149(2) of the Motor Vehicles Act. The Insurance Company was proceeded ex parte.
8. Learned counsel for the appellant further submitted that appeal is in continuation of the suit as such as mention has been made in the appeal memo in Para 5 and that should be taken to be the mode for praying the permission under Section 170 of the Motor Vehicles Act, so as to enable the Insurance Company to raise the ground available to the owner in the present appeal. This submission of the learned counsel is devoid of substance. The language of Section 170 of MV Act in which the legislature has engrafted it is clear. Such permission can be granted in the course of any inquiry by the Claims Tribunal and that is the purpose behind it as the defences which are available to the owner, requires evidence and thus permission should be obtained at the stage of inquiry before the Claims Tribunal and Claims Tribunal has to record the reason in writing and permit the impleadment of Insurance Company and giving right to contest on all the grounds.
9. In the instant case though the Insurance Company was not impleaded, subsequently it was a party in the original claim petition. However, there is no order passed by the Claims Tribunal allowing the Insurance Company to raise the defences available to the owner or driver or other person liable to compensate.
Thus the appeal is without substance. Same is accordingly dismissed.