1. This appeal is directed against the award dated: 24.6.2004 passed by the Motor Accident Claims Tribunal, Anantnag (for short the Tribunal) in Claim Petition titled Javaid Ahmad Khan v. Mohammad Hussain Gujjar.

2. The relevant facts for disposal of this appeal are that respondents 1 and 2 being the father and mother of deceased Zahoor Ahmad Khan, a boy of four years, who had died in accident with Truck No. 6378-S which was driven rashly and negligently by respondent No.3 Mohammad Hussain Gujjar. The learned Tribunal after recording the evidence of the parties passed an award of Rs. 1,50,000/- with interest at the rate of 9% from the date of application till realization in favour of the claimants. Aggrieved by which the National Insurance Company filed the present appeal.

3. The counsel for the claimants/respondents raised the preliminary objection that the Insurance Company cannot file an appeal in the High Court against the award of the Tribunal and got the quantum of compensation reduced when the insured has not filed such appeal. He submitted that the appellant has not moved an application under Section 170 of the Motor Vehicle Act, 1988 (for short the Act) and for getting right to contest the proceedings on merit.

4. Learned counsel for the appellant has submitted that when the driver and owner did not contest the claim petition and proceeded exparte then there is no need to seek permission to contest the petition on merits and it will be presumed that there is implied permission.

5. I have heard learned counsel for the parties and perused the record.

6. Before considering the rival contentions raised by the learned counsel for the parties, it will be appropriate to refer Section 170 of the Act, which reads as under:

"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.

7. The perusal of the section shows that where there is collusion between the person making the claim and the person against whom the claim is made has failed to contest the claim, the insurer has to move an application under Section 170 of the Act. The Tribunal may allow the insurer to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.

8. The Apex Court in National Insurance Co. Ltd. v. Swaram Singh. AIR 2004 SC 1531 has laid down as under:

"Where an adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section(7); as interpreted by this court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on the certificate issued by the Tribunal to the Collector in the same manner under section 174 of the Act as arrears of land revenue only if, as required by sub section(3) Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal."

9. This court has also taken the same view in National In

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