The insurer's right to raise defenses in the appellate forum is restricted by Section 149(2) of the Motor Vehicles Act, 1988, unless the insurer has reserved the right to contest the claim on behalf of the insured in the policy or the Tribunal has passed an order under Section 170 of the Act.

BHAT, C. J. :- In a motor vehicle accident which took place on 12-9-90 in the National Highway near Bantow Gaon Mosque within the limits of North Lakhimpur P.S., Nomal Bora who was riding home on his bicycle was hit by a truck bearing registration No. ASM 1249 belonging to third respondent herein and driven by its driver, the fourth respondent herein, as a result of which Nomal Bora sustained fatal injuries to which he succumbed immediately. Mother of the deceased, second respondent herein filed a claim case before the Motor Accident Calms Tribunal, Lakhimpur alleging that the accident took place on account of the rash and negligent driving of the truck by the driver and claiming Rs. 3,52,410/- as compensation from the driver, owner and the insurer, respectively, the insurer being the appellant herein. The owner filed a written statement admitting the accident but denying his liability and asserting that the motor vehicle is covered by an insurance policy granted by the appellant. The insurer filed a written statement raising certain pleas. On a consideration of the pleadings and the evidence, the Tribunal upheld the case of the claimant and awarded a sum of Rs. 2,57,000/- as compensation, holding the driver, owner and insurer jointly and severally liable and directing payment within thirty days and in default, directing payment of the amount with interest at 10%. Insurer has filed this appeal against the award and judgment passed by the Tribunal.

2. In the memorandum of appeal it is alleged that the award is not in conformity with S. 168 of the Motor Vehicles Act, 1988 (for short, the Act) inasmuch as the amount due by the driver, owner and insurer is not separately shown, that the Tribunal failed to consider the plea of the insurer that in case of failure to observe the terms and conditions of the policy, or violation of the provisions of the Act, the insurer cannot be held liable, that in any event, the insurer cannot be held liable since on the date of the accident the driver had no valid driving licence, that the quantification of the compensation is vitiated by non-application of mind, that the amount awarded is excessive, unjust and unreasonable considering the age, the monthly income of the deceased and the settled methods adopted to assess compensation and that the method adopted for assessing compensation was not proper.

3. The Division Bench which considered the admission of the appeal under Order 41, Rule 11, CPC, felt that some, at any rate, of the grounds raised in the memorandum of appeal are not available to the insurer in view of S. 149(2) of the Act. It was brought to the notice of the Division Bench that another Division Bench in Shri Hemendra Dutta Choudhury v. Shri Arun Kumar Bordoloi, (1987) 2 GLR 450, has held that similar restrictions imposed in S. 96(2) of the Motor Vehicles Act, 1939 (corresponding to S. 149(2) of the Act) would not apply at the stage of appeal. The Division Bench felt that the decision requires reconsideration. The Division Bench accordingly referred to a larger Bench the question whether such an appeal is maintainable and whether insurer can raise defences not contemplated under this provision. We heard learned counsel appearing for the appellant as well as several other counsel who are interested in this question.

4. We will first refer to the decisions of this court placed before us. The earliest decision of this Court is the one in The Premier Insurance Co. Ltd. v. The Member, Motor Accident Claims Tribunal, Jorhat, AIR 1973 Gau 97, in which Baharul Islam, J. (as he then was) following the principle laid down in British India General Insurance Co. Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331, held that the plea of the appellant-insurer must be limited to S. 96(2) of the Motor Vehicles Act, 1939 and the insurer cannot in appeal impugn the decree on pleas which are not available to it. In M/s. United India Fire and General Insurance Co. v. Smt. Malati Bala Dutta, (1985) 1