The main legal point established in the judgment is that the Insurance Company cannot contest a claim on grounds available to the insured or any other person against whom a claim has been made, unless permitted by the Tribunal, as per the provisions of the M.V. Act.

JUDGMENT :

Subhendu Samanta, J.

1. Delay in preferring the instant appeal is condoned.

2. The instant appeal has been preferred against the judgment and award dated 15.07.2017 passed by the learned Judge, Motor Accident Claims Tribunal, ADJ, 14th Court, Alipore, 24-Parganas (South), in MAC Case No. 44 of 2006.

3. The present respondent No. 1 injured in a road traffic accident on 25.02.2003 by rash and negligent driving of bus bearing No.WB/04/4901 by which the victim received serious fracture injuries and became permanent partial disable.

4. The respondent No. 1 filed an application for compensation under Section 163-A of the M.V. Act before the learned tribunal.

5. Owner did not contest the matter before the learned tribunal.

6. The Insurance Company i.e. the present appellant though appeared initially but subsequently did not contest the matter by filling written statement. Accordingly, the case was heard ex-parte.

7. After hearing the parties and after receiving the evidences the learned tribunal has awarded an amounting to Rs.4,23,200/-in favour of the claimants and directed the Insurance Company to pay the compensation. Being aggrieved by and dissatisfied with the said award the instant appeal has been preferred.

8. Learned advocate for the appellant submits that this is an ex-parte order passed by the learned tribunal which can be very well challenged in this appeal. Mr. Rajdeep Bhattacharya, learned advocate appearing on behalf of the appellant further argued that the Insurance Company was prevented by sufficient cause to contest the matter before the learned tribunal so to determine the entire matter the instant case be remanded back to the learned tribunal by giving an opportunity to the Insurance Company to contest the matter.

9. In support of his submission he cited a decision of Hon’ble Allahabad High Court reported in National Insurance Co. Ltd. Vs. Smt. Jairani & Ors reported in (2010) 4 SCC 252. By citing the observation of the Division Bench of Allahabad High Court Mr. Bhattacharya learned advocate appearing on behalf of the Insurance Company submits that on the similar set of facts the Division Bench of Hon’ble Allahabad High Court has remanded the matter back before the learned Tribunal to re-hear the case in presence of the insurance Company. He referred the paragraphs 9, 17 & 18 in support of his submission.

“9. The decision in Nicolletta Rohtagi’s case had been followed in National Insurance Co. Ltd. Vs. Mastan & Another,(2006) 2 SCC 641; Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others,(2006) 3 SCC 242; Sadhana Lodh Vs. National Insurance Company Ltd, and Another, (2003) 3 SCC 524 and United India Insurance Co. Ltd. Vs. Jyotsnaben Sudhirbhai Patel and Others, (2003) 7 SCC 212. The Apex Court in Jyotsnaben Sudhirbhai Patel’s case has laid emphasis that the Tribunal while deciding application u/s 170 of the Act must record reasons. From these decisions the scope of Section 170 stands clearly explained. The Insurance Company can file appeal u/s 173(1) on all the grounds which are available to the owner of the vehicle and the grounds mentioned in Section 149(2) of the Act if the application u/s 170 had been allowed by the Tribunal. However, if the application u/s 170 had been rejected by the Tribunal then the insurance company can maintain the appeal only on the grounds available u/s 149(2) of the Act.

17. The question still is whether where no order is passed by the Tribunal on an application u/s 170, can it be challenged in an appeal u/s 173(1) of the Act? It is true that an appeal u/s 173(1) of the Act lies only against the award of the Motor Accident Claims Tribunal but if the award is a nullity it can be challenged in an appeal u/s 173(1) of the Act and the appeal would be maintainable. The decision of the Apex Court in Bhanu Kumar Jain Vs. Archana Kumar and Another, (2005) 1 SCC 787 would apply and the insurance company would not be estopped from raising the question that the award of the Tribunal is a nullity in a