Chattopadhyaya, J.

1. When this appeal was taken up for hearing under Order XLI, rule 11 of the Code of Civil Procedure (in short the Code), Mr. Shukla-, learned counsel for the claimants-respondents, had taken a preliminary objection regarding maintainability of the appeal in view of the decisions of the Supreme Court in the case of Shankarayya V/s. United India Insurance Co. Ltd., 1998 ACJ 513 (SC) and in the case of Rita Devi V/s. New India Assurance Co. Ltd., 2000 ACJ 801 (SC). On such objection being raised counsel for the parties were heard at length for deciding first the question of maintainability of the appeal.

2. It was contended by respondents counsel that admittedly the insurance company did not seek any permission of the Tribunal u/s. 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) for challenging the claim of the respondents on merits and, as such, it is debarred from impugning the award by filing an appeal before this court.

3. On the other hand, Mr. Ajay Kumar, learned counsel appearing on behalf of the appellant company, has urged that preliminary objection raised by the respondents has no merit because in the present appeal the appellant neither challenges the award on merits nor the quantum as such but it only attacks the principles evolved by the Tribunal in granting the said compensation. According to him if the insurance company confines its argument only on statutory defence as contemplated under section 149 (2) of the Act, it is not required to take permission as envisaged under section 170. Where the owner, the learned counsel continues, either does not appear to contest the claim or even after filing the written statement does not appear, the insurance company cannot be precluded from agitating the matter in appeal on the ground that the principle adopted by the Claims Tribunal in granting compensation is illegal only because it had not filed an application u/s. 170 of the Act.

4. To resolve this conflict one has to look to different provisions of the Act. Under sec. 149 (2) the defences available to the insurance company are as follows:

"(2) No sum shall be payable by an insurer under Sub-sec. (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely: (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 reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, 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 transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle; or (ii) 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 (iii) 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 the nondisclosure of a material fact or by a representation of fact which was false in some material particular."

5. In this background the facts of the instant case are required to be seen. One Pradeep Kumar Rawat having died in a bus accident, his heirs filed the