The main legal point established in the judgment is the right of the Insurance Company to contest a claim on the grounds available to the owner of the vehicle under Section 170 of the M.V. Act, 1988, and the conditions precedent for an insurance company to challenge an award on merits.

PRADEEP NANDRAJOG, J.

R.P. No. 397/2007 in C.R.P. No. 764/2003

1. The Civil Revision Petition was filed by the Oriental Insurance Company in the year 2003 raising a challenge to an order dated 23.04.2003 dismissing the application filed by the company u/s 170 of the M.V. Act, 1988, inter alia, alleging that neither the owner nor the driver of the offending vehicle had appeared to contest the proceedings evidenced by the fact that none had bothered to enter appearance before the Learned Judge MACT, and that from such conduct, the Insurance Company apprehends a probable collusion between the claimants and the owner/driver. It was thus prayed that the Insurance Company may be permitted to contest the claim petition on the grounds which in law are available to the owner of the vehicle.

2. The said application was dismissed by the learned Tribunal vide impugned order dated 23.04.2003.

3. The contention urged by the Insurance Company in the Civil Revision Petition is that Section 170 of the M.V. Act, 1988 has two components. Clause (a) is the first component and Clause (b) is the second component. It was urged that both Clauses are independent of each other and if it is shown that the owner/driver has failed to contest the claim, the Insurance Company can seek a right to be granted the opportunity to urge grounds that are available to the owner/driver of the offending vehicle as per the mandate of Clause (b). The reason why the Insurance Company had to so urge is the fact that vide order dated 23.04.2003, the Learned Judge, MACT has read Clause (a) and (b) of Section 170 as conjunctive and not disjunctive i.e. has held that the element of collusion has to be read in Clause (b) as well.

4. The Civil Revision Petition had come up for final hearing on 25.01.2007. The same was allowed with a finding that the Insurance Company had a right to take over the defence available to the owner of the vehicle by virtue of Section 170(b) of the M.V. Act, 1988. It may be noted that none had appeared for the claimants on 25.1.2007.

5. Seeking review of the order dated 25.1.2007 disposing of the Civil Revision Petition, it is pointed out that since the Insurance Company failed to obtain a stay of proceedings before the Learned Judge, MACT during the pendency of the Revision Petition, proceedings continued, resulting in an award being passed in favour of the claimants.

6. It may be noted that against the award, the Insurance Company has filed MAC Appeal No. 489/2005. The claimants are also aggrieved by the award evidence by the fact that they have filed MAC Appeal No. 535-39/2005.

7. In respect of the plea urged in the Review Petition that the Civil Revision Petition was rendered in-fructuous when the award was published by the Tribunal suffice it would be to state that where an order which affects a vital substantive right of a party at a trial is questioned in a revision or an appeal, merely because no stay is granted in the appeal or revisional proceedings and in the meanwhile the main proceedings before the Lower Court/Tribunal is concluded, does not render in-fructuous the challenge to the said order.

8. Be that as it may, said aspect of the matter need not bother me, for the reason the decision of the Hon'ble Supreme Court reported as National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, (2002) 7 SCC 456

31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the tribunal does not implead the insurance company to contest the claim in such cases it is open to an insurer to seek permission of the tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insur