An insurer can only challenge an award on the grounds specified in Section 96(2) of the Motor Vehicles Act, 1939 (now Section 149 of the M. V. Act, 1988).

P. C. NAIK, J.

( 1 ) THE Motor Accident Claims Tribunal, Kalahandi, Bhawanipatna had awarded a sum of Rs. 75,800/- as compensation to the claimant / Respondent No. 1 with a direction to the insurer (appellant) to satisfy the award. Hence, this appeal by the insurer.

( 2 ) THE Tribunal has held that the claimant / Respondent No. 1 was knocked down by a jeep bearing Registration No. ORN 3211 of which the Respondent No. 1 is the owner and appellant the insurer. Due to the injuries, the right leg of the claimant was amputed. On a further finding that the accident was due to the rashness and negligence of the jeep driver, the Tribunal held the claimant was entitled to compensation from the owner and the insurer of the jeep. Accordingly the award in question was passed in favour of the claimant.

( 3 ) THE learned counsel for the insurer assails the award on merits. It is urged that the insurer having denied that Respondent No. 2 was the owner of the vehicle, the Tribunal committed an error in not framing an issue and giving a specific finding on the question of ownership and, in the absence of such finding regarding ownership, the liability could not be fastened on the insurer. The appellant also challenges the quantum and submits that the compensation awarded is excessive. It is also submitted that in view of the material contradictions in the testimony of the claimant and, because of the apparent collusion between, the owner and the claimant, the claim ought to have been negatived.

( 4 ) IN reply, the learned counsel for the claimant (Respondent No. 1) submits that no interference on merits is called for in an appeal by the insurer as it cannot assail the award on merits. Further, in the absence of any evidence, in rebuttal, submits the learned counsel, the Tribunal was justified is placing reliance on the unrebutted evidence of the claimant and in passing an award in his favour. The learned counsel further submits that the appeal has no substance and is liable to be dismissed.

( 5 ) THE preliminary question which requires for consideration is whether it is open to the insurer to challenge the award on merits or even though its defence is

confined to those specified in Section 96 (2) of the Motor Vehicles Act, 1939 (now Section 149 of the M. V. Act, 1988 ). For determination of this question, it is necessary to make a reference to Section 96 (2) which reads thus :"96. Duty of insurers to satisfy judgments against persons insured in respect of third party risks- (1) xx xxx xxx (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceeding is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :- (a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, of that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellations of the certificate after compliance with the provisions of Section 105; or (b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely: (i) a condition excluding the use of the vehicle- (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed test