An insurer cannot contest a claim on merits without obtaining leave under section 170 of the Motor Vehicles Act, 1988.

( 1 ) THESE two appeals have been preferred by the respective Insurers against the Judgment and Award dated 7th February, 1996 in Motor Accident Claim case No. 21 of 1992 and the Judgment and Award dated 11th December, 1996 in Motor Accident Claim case No. 13 of 1993, passed by the learned Judgment, Motor Accident Claims Tribunal, Purulia.

( 2 ) PURSUANT to a preliminary objection taken on behalf of the respondents, the two appeals were set down for hearing on the point of maintainability on identical grounds.

( 3 ) APPEARING on behalf of the respondents in both the appeals, Mr. Krishanu Banik, learned advocate, submitted that the appeals were not maintainable since no leave had been obtained by the Insurers in both the appeals from the Claims Tribunal under section 170 of the Motor Vehicles Act, 1988, to contest the claims made by the Claimants on merits on grounds other than those indicated in section 149 (2) of the said Act. Mr. Banik urged that failure to obtain such leave operated as a bar to the filing of an appeal by the Insurer challenging the Judgment/award of the Claims Tribunals on merits.

( 4 ) MR. Banik submitted that without obtaining leave from the Claims Tribunal under section 170 of the Motor Vehicles Act, 1988, hereinafter referred to as the "1988 Act", an Insurer could contest the claim only on the limited grounds set out in sub-section (2) of section 149 of the said Act regarding breach of the conditions of the policy referred to therein.

( 5 ) IN support of his submissions Mr Banik firstly referred to the decision of the Hon'ble Supreme Court in the case of Shankarayya and Anr. v. United India Insurance Co. Ltd. and Anr. reported in AIR 1998 SC Page 2968, wherein it was held, inter alia, that notwithstanding the fact that the Insurance Company had been impleaded as party in the Claim Petition, unless the procedure indicated in section 170 of the 1988 Act was followed, the Insurance Company could not have a wider defence on merits than what was available to it by way of statutory defence.

( 6 ) MR. Banik submitted that the same view was expressed by the Hon'ble Supreme Court in the case of Narendra Kumar and Anr. v. Yarenissa and Ors. , reported in 1998 (9) SCC Page 202, which was a decision under section 110c (2a) of the Motor Vehicles Act, 1939, the provisions whereof are at pari materia with the provisions of section 170 of the 1988 Act.

( 7 ) REFERENCE was also made to two Bench decisions of this Court in (1) United India Insurance Co. Ltd. v. Smt. Namita Das and Others, reported in AIR 2000 Calcutta, Page 145, and in (2) Oriental Insurance Company Ltd. v. Gurdial Singh, reported in (2000)2 CAL LT 288 (HC) : 2000 (2) CLJ 624, where the same view was expressed.

( 8 ) MR. Banik submitted that even joint appeals filed by the owner of the offending vehicle and the insurer were not maintainable on the merits of the award made by the Tribunal unless leave was obtained under section 170 of the 1988 Act. Mr. Banik referred to the decisions of the Hon'ble Supreme Court in the case of (1) Chinnama George and Ors. v. N. K. Raju and Anr. (AIR 2000 SC, Page 1565) and (2) Smt. Rita Devi v. New India Assurance Company Ltd. (2000 (3) Supreme, Page 698) wherein, while considering the provisions of sections 173 and 149 (2) of the 1988 Act, the Hon'ble Supreme Court held that a joint appeal by the owner of the vehicle and the insurer was maintainable only if any of the permitted defences was available to the insurer. The insurer could not avoid the statutory bar merely by joining the insured owner or the driver as co-appellant in such appeal.

( 9 ) IN other words, the provision for appeal under section 173 was subject to the statutory bar imposed under section 149 (2) and section 170 of the 1988 Act.

( 10 ) MR. Banik also referred to various other unreported decisions of this Court on the aforesaid lines to which reference will be made, if necessary.

( 11 ) APPEARING for the appellant insurer, Mr.