An insurance company can only defend a claim on the grounds specified in Section 96(2) of the Motor Vehicles Act, even if the policy bond contains a term reserving the right to defend to the insurer in the name of the insured.

R. N. MISRA, J.

( 1 ) JAGANNATH Narula, respondent No. 2, was the owner of car No. O. R. P. 2848. Around 8. p. m. on 19-8-1972 this car was proceeding from Puri towards bhubaneswar on the State Highway. Near village Talapati between Sakhigopal and Gopabandhu Sevasangha, the claimant, original respondent No. 1, was running his own cycle rickshaw on the said road at a slow speed. The car, came from the opposite direction and dashed against the rickshaw. As a result of the accident, the claimant received serious injuries over several parts of his body and remained as an indoor patient at Sakhigopal Hospital. It was found that his left leg and the right collar bone were fractured. He alleged that he became invalid and members of his family have been deprived of his earnings as a rickshaw puller. Claim of Rs. 22,000/-as compensation was laid before the motor Accidents Claims Tribunal at Puri. The owner of the car, respondent No. 2, entered contest, filed a written statement, cross-examined the witnesses for claimant and adduced defence evidence by examining the driver of his car who was still employed under him. This vehicle was insured with the National Insurance Company Ltd. who was impleaded as opposite party No. 2 before the Tribunal. It filed a written statement admitting that it was the insurer of the vehicle but denied each and every allegation made in the claim petition and specifically disputed the quantum. The Tribunal awarded compensation of Rs. 17,000/- with interest and consolidated cost and directed the Insurance Company to pay the the same. This appeal under Section 110-D of the Motor Vehicles Act (hereinafter referred to as the 'act') has been filed by the insurer. When the appeal came up for hearing before a learned single Judge, on behalf of the claimant it was contended that the appeal did not lie at the instance of the insurer in view of the provision of Section 96 (2) of the Act which restricts the grounds upon which a claim is open to challenge. On behalf of the insurer it was contended that it was a term in policy of insurance that the insurer could take any defence available to the insured in the name of the insured and the insured having not preferred any appeal and the entire liability for payment of compensation awarded by the Tribunal having come on the shoulders of the insurer, the insurer must be held eligible to challenge the quantum of compensation as also its basis. Before the learned single Judge the decision of the Supreme Court in the case of British India General Insurance Co. v. Itbar Singh, AIR 1959 SC 1331, and a bench decision of this Court in the case of the Oriental Fire and General Insurance co. v. Vanita Kalyani. 1972 ACJ 261 (Orissa) and a decision of a learned single judge in the case of The Orissa Co-operative Insurance Society y. Ranjan kumar Garabaru, 1'976 ACJ 21 (Orissa) were placed. The learned single Judge was of the view that the contention made on behalf of the appellant was correct but in view of -the observations made by this Court in the two decisions referred to above he was not in a position to dispose of the matter by overruling the respondents' contention and asked the matter to be referred to a pull Bench for disposal.

( 2 ) AS already indicated the appeal has been filed under Section 110-D of the act. In such an appeal against the award of a Tribunal, the insurer is entitled to raise only those pleas which could be raised by it before the Tribunal and the appeal would not be maintainable on grounds which could not be raised before the Tribunal by the insurer. The view expressed by Mysore High Court in the case of I. M. G. Ins. Society v. Helen, AIR 1971 Mys 207, in our view, is correct. It may be stated there that even Counsel for the appellant does not dispute this position. Section 96 (2) of the Act provides :--

"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 whic