B. N. CHATURVEDI, J.

( 1 ) PRESENT appeal is directed against an order dated 26th March, 2004 passed by Motor Accident Claims tribunal dismissing an application under Section 170 of the Motor Vehicles Act, 1988 (for short the Act) made by appellant insurance company.

( 2 ) THE application was made seeking permission to widen scope of its defences on the ground that the owner and/or driver of the offending vehicle have colluded with the claimant as they failed to contest the claim and were proceeded ex parte. Though the Tribunal noticed that to attract application of Section 170 of the act either of the two conditions, namely, (a) that there is collusion between the claimant and the owner and/or driver of the offending vehicle; or (b) owner and/or driver of the offending vehicle failed to contest the proceedings, has to be satisfied it proceeded to find that clause (b) of Section 170 would be invokable only where failure of owner/driver to contest the claim is in furtherance of collusion between them and the claimant. It further held that merely because owner and driver were proceeded ex parte and did not contest the claim that by itself would not suffice to infer that there was collusion between the claimant and the owner and driver of the offending vehicle to attract Section 170 of the act to accord permission to the appellant to widen the scope of its defence.

( 3 ) LEARNED counsel for the appellant refers to a decision of the Supreme Court in United Indian Insurance co. Ltd. Vs. Jyotsnaben Sudhirbhai Patel and Ors; (2003) 7 SCC 212 to contend that the view taken by the Tribunal is wholly erroneous inasmuch as the two conditions contemplated under Section 170 of the Act are independent of each other and where the owner and/or driver of the offending vehicle fail/s to contest the proceedings that would satisfy the legal requirement to accord permission under Section 170 to widen the scope of defences available to the insurance company and it need not be shown that the owner and/or driver of the offending vehicle failed to contest the proceedings by virtue of any collusion between them and the claimant.

( 4 ) IN the absence of a permission under Section 170 of the Act the insurance company can contest the claim before the Tribunal only on the statutory grounds mentioned in Section 149 (2) of the Act. Section 170 of the Act reads thus :

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 proceeding 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.

( 5 ) APART from finding that Section 170 would be attracted only on the person against whom claim is made failing to contest the claim in collusion with the claimant, the Tribunal also felt that Section 170 could be resorted to by a n insurance company for permission to contest on grounds, other than those enumerated under Section 149 (2) available to the owner and driver of the offending vehicle only in cases where impleaded as a party to the proceedings at a later point of time during the pendency of the proceedings. In the present case, since the appellant insurance company was already arrayed as respondent the Tribunal took the view that the appellant was precluded from invoking Section 170. In support of such a view a decision of Supreme Court in national Insurance Company Ltd. , Chandigarh Vs. Nicolletta Rohtagi and Ors. ; 2002 VII AD (SC) 566 was cited. The decision in Na

Click Here to Read the rest of this document