Insurance Company cannot be permitted to file appeal.

N.K. Jain A.C.J.

1. A Division Bench of this Court, by order dated 18. 1996 referred the matter for, re-consideration of the decision reported in New India Assurance Company Ltd., v. Kamalam , 1992 (I) MLJ 41.

2. The necessary facts for the disposal of the reference are as follows: On account of the death of one S. Palanisamy on 17. 1989 due to the motor accident which took place on 7. 89, as a result of the head-on-collision between the scooter driven by the said Palanisamy, since deceased and the owner of motorcycle driven by one K.N. Kumaraswamy, the fifth respondent herein, on a claim petition a sum of Rs. 6, 69,058 was awarded. The owner of the motorcycle remained exparte in the tribunal. The claim of the insurance Company in the tribunal is that the compensation claimed is excessive.

3. This appeal is preferred by the New India Assurance Company. It was argued that the Insurance Company, at the tribunal did not raised the fact of finding and as such the appeal is not maintainable. Quoting the conflicting decisions, the Division Bench referred the matter to Full Bench, as stated.

4. Learned counsel for the respondents/claimants, argues that since the Insurance Company remained ex parte in the Tribunal at the stage of trial, it cannot file an appeal questioning the correctness of compensation awarded. According to the learned counsel, the said defence is open only to the owner of the motor-cycle, the 5th respondent herein. Learned counsel relied on the decisions in New India Assurance Company Ltd., v. Kamalam , 1991 (I) MLJ 41 and the judgment made in AAO 418 of 1985 dated 24. 1992 in which the learned single judge was also a party. It was followed by Kerala High Court in AIR 1990 Ker. 206 DB.

5. On the other hand, learned counsel for the appellant contended that the above mentioned decisions, cited by learned counsel for the respondents/claimants require reconsideration. Learned counsel submitted that a Divisional Bench of this Court in 1984 ACJ 222, took a contrary view, and the same was not considered by the Division Bench in the above mentioned case New India Assurance Company Ltd., v. Kamalam , 1992 (I) MLJ 41.

6. We have heard the learned counsel appearing on either side and perused the materials on record and also the case laws. A limited defence is available to the insurance Company as per Section 96 (2) of the Motor Vehicle Act, 1939. As per Section 110-C (2A) it can only be invoked if the Tribunal is satisfied that a person against whom the claim is made has failed to contest the matter. It is not necessary to go into the above two controversial and other cases as our attention had been drawn to the latest decision of the Supreme Court in Narendras Kumar v. Yarenissa , (1) 1997 ACC 341. Clauses (a) to (c) of Motor Vehicles Act . 1939 had been discussed in the said decision. While considering the provisions of Section 96 of the Act, the Supreme Court observed as follows:

“...:It is therefore, obvious on a plain reading of the aforesaid three sub-sections of Section 96 that before any insurer can be saddled with the liability to answer judgment he must have notice of the proceedings and an opportunity to defend on all or any of the grounds enumerated in Clauses (a) to (c) of Sub-section (2) of Section 96, if the same, in the facts and circumstances of the case, is or are available to the insurer. Once that opportunity is made available. Sub -Section (6) of Section 96 say s that the insurer shall not be entitled to avoid his liability to any person entitled to the benefit of any such judgment otherwise than in the manner provided by subs-section (2) “ As stated, this reference was referred to by the Division Bench for re-consideration of Section 110-C (2-A). In the recent decision of the Supreme Court in Narendras Kumar v. Yarenissa , (1) 1997 ACC 341 it was held that,

“It is different matter that claimants normally make the Insurance Company a party to the claim application. That by itself cann