CHOWDHURY, J. :- The matter has come to this Court on a reference made under Chapter VII of the Gauhati High Court Rules, basically to resolve the views expressed by two Division Benches of this Court relating to judicial review under Articles 226 and 227 of the Constitution of India pertaining to adjudication upon claims for compensation in respect of adjudication under Chapter XII of the Motor Vehicle Act, 1988. The two conflicting views mentioned above which shall be discussed hereinbelow, have surfaced in the following circumstances.

2. A Full Bench of this Court in United India Insurance Co. Ltd. v. Member, Motor Accident Claims Tribunal, Lakhimpur reported in (1992) 2 Gauhati L. R. 391 : (AIR 1993 Gauhati 28), was called upon to reconsider a Division Bench decision of this Court in Hemendra Dutta Choudhury v. Arun Kumar Bordoloi, reported in (1987) 2 Gauhati LR 450. In Hemendra Dutta Choudhury (supra), the Division Bench of this Court was to consider the maintainability of a joint appeal preferred by the insurer and the owner of a vehicle. It was held that where the entire compensation amount is directed to be paid by the insurer, the insurer alone is the person aggrieved and entitled to prefer an appeal under Section 100D of the M. V. Act, 1939 and that the owner of the vehicle is not a person aggrieved and is not entitled to maintain an appeal; but the joining of the owner of the vehicle as a co-appellant would not render the appeal preferred by the Insurance Company (insurer) as not maintainable. It was also held that the restrictions contained in Section 96 (2) of the M.V. Act, 1939 operates only in regard to defences available to the insurer in the Motor Accident Claims Tribunal, hereinafter referred to as the Tribunal, and do not apply to the grounds available to the insurer in the appellate forum. The Full Bench deliberated upon the matter and held that the insurer is bound by Section 149 of the MV Act, 1988 (old S. 96 (2)) in the appellate forum also and the right of appeal is restricted to the conditions enumerated in Section 149 of the Act, 1988 (Sec. 96 (2) of the old Act, 1939). The Court in United India Insurance Co., (AIR 1993 Gauhati 28) (supra), held that Section 149 of the Act, 1988 is concerned with the duty of the insurer to satisfy the judgment and award against persons insured in respect of third party risk. Under the common law, an insurer has no right to be made a party to the action by the injured person against the insured. A right is created in favour of the insurer under Section 96 (2) (corresponding to Section 149 of the new Act, 1988) of the Act, 1939. It is a right created by Statute and its content necessarily depends upon the provisions of the Statute. The Full Court accordingly reversed the decision in Hemendra Dutta Choudhury, (1987 (2) Gauhati LR 450) (supra) and held that the insurer is bound by Section 96 (2) (Section 149 of the Act, 1988) in the appellate forum also and the right of appeal is restricted to raising contentions enumerated in Section 149 of the Act unless the Tribunal has passed an order under Section 170 of the Act or unless the insurer has reserved a right in the policy a right to contest the claim on behalf of the insured. The correctness of the aforesaid Full Bench decision is not in dispute. Nor is there any reference to that extent. The United India Insurance Co. (supra) is holding the ground so far as good law and the ratio of the aforesaid decision also finds support in the decision of the Supreme Court in Shankaryya v. United India Insurance Co. Ltd. reported in (1998) 3 SCC 140 : (AIR 1998 SC 2968). In the above mentioned case, the Supreme Court held that the Insurance Company when impleaded as a party by the Court, can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 of the Act, 1988 are found to be satisfied and for that purpose the Insurance Company has to obtain a reasoned order in writing