An Insurance Company can only contest a claim on merits if it has been impleaded as a party by the Court and has obtained an order in writing from the Tribunal, as required by Section 170 of the Motor Vehicles Act, 1988.

( 1 ) BY consent of the parties the appeal is treated as on day's list and both the appeal and the application are taken up together for hearing. The instant appeal is preferred by the Oriental Insurance Company Limited against an award passed by the Motor Accidents Claims Tribunal, 5th Court, Alipore, South 24-Parganas. The respondent has raised the question of maintainability of this appeal in view of the fact since the conditions under Section 170 have not been complied with by the Tribunal according to him. Section 170 of the Motor Vehicles Act, 1988 is set out hereinbelow :"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 reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceedings and the insurer so 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. "

( 2 ) IT is not in dispute that there is no collusion in terms of Section 170 (a) of the Act. It is also not in dispute that the Insurance Company has not taken any statutory defence under Section 149 of the Act. The question, therefore, arises if Section 170 (b)has been complied with. It is on record that the Insurance Company did not record any reasons in writing directing the persons against whom, i. e. the owner of the vehicle against whom the claim made has failed to contest the claim, but the insurer shall be impleaded by reasons to be recorded in writing without prejudice to the provisions contained in sub-section (2) of Section 149 of the Act, the right to contest the claim on all or any of the grounds that are available to the persons against whom the claim is made. In support of his contention that the appeal is not maintainable, learned advocate. Mr. Banik, has relied upon the judgment and decision of the Supreme Court in 1998 (2) TAC 379 (SC) : AIR 1998 SC 2968. Relying upon the said decision, the learned advocate for the respondent has urged that the appeal is not maintainable since no specific order has been passed recording the Insurance Company to be impleaded. He has further urged that it is necessary for the Insurance Company to obtain an order from the Tribunal by moving an application to that effect and the Insurance Company has failed to do so. The learned advocate for the appellant, however, has submitted that it is not necessary for the Insurance Company to move any application if there is any default on the part of the tribunal and for that the Insurance Company should not suffer. It is not in dispute, however, that no application has been moved and no order has been recorded impleading the Insurance Company as is required in terms of Section 170. Under similar circumstances, we are of the view that the Supreme Court in Shankarayya v. United India Insurance Co. Ltd. reported in 1998 (2) TAC 379 : (AIR 1998 SC 2968) has accepted the contention of the claimant. The relevant decision of the Supreme Court is set out hereinbelow :-Para 3 - Learned Counsel for the appellants was right when she contended that as the first respondent Insurance Company did not move under Section 170 of the Motor Vehicles Act, it was not entitled to challenge the compensation on merits and only statutory defence was available to the Insurance Company. It is true that respondent No. 1 was allowed to contest on merits despite not following the procedure laid down under Section 170 of the Act and as a result the compensation claim of Rs. 2 ,60,000/- was not granted in full and only Rs. 1,05,000/- was granted to th