JUDGMENT

P. K. MOHANTY, J. — The appeal is by the Insurance Company against the order of the learned 5th Motor Accident Claims Tribu¬nal, Bhubaneswar awarding a sum of Rs. 2,65,500/- as compensation of favour of the claimant-respondents with interest.

2. Sri P. C. Pattnaik, learned counsel for the claimants/respondents has raised the question of maintainability of the appeal on merit at the instance of the Insurance Company in absence of an order of the Claims Tribunal passed under Sec. 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) to contest the award on merit. It is his submission that the appellant/Insurance Company having not moved the learned Tribunal under Sec. 170 of the Act for being impleaded as a party to the proceeding and contesting the same, it cannot challenge the award on merits only because it was impleaded as a party to the claim proceeding by the claimants. The leaned counsel argues that the Insurance Company an only challenge the award of the Tribunal on the grounds as are available under Sub-sec. (2) of Sec. 149 of the Act.

3. Sri. S.S. Rao, learned counsel for the appellant/insurer, on the other hand, submits that since the Insurance Company was already impleaded as a party to the claim proceeding before the Tribunal at the instance of the claimants and having contested the same, the bar contemplated under Sec. 149(2) of the Act does not operate inasmuch as in view of specific clause and the reser¬vation subject to which the policy is granted, it can always challenge the award on merit. In support of his contention, learned counsel has relied on the decision of the Apex Court in Shankarayya and another v. United India Insurance Co. Ltd. : A.I.R. 1998 S.C. 2968, New India Assurance Co. Ltd. v. Sadasiv Misra and others : 1999 (II) O.L.R. 159 and National insurance Co. Ltd., New Delhi v. Jugal Kishore and others A.I.R. 1988 S.C. 719 and the decision of the Calcutta High Court in United India Insurance Co. Ltd. v. Smt. Namita Das and others A.I.R. 2000 Calcutta 145. In order to appreciate the submission of the learned counsel for the parties, the provision of Sec. 170 of the Act need be noted which reads thus :

“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 the 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 im¬pleaded shall thereupon have, without prejudice to the provi¬sions contained in Sub-sec. (2) of Sec. 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.”

Thus, on a careful perusal and reading of the aforesaid provi¬sion, there cannot be any manner of doubt that in course of an enquiry if the Tribunal is satisfied that the person against whom the claim is made has failed to contest the claim, it may, for the reasons recorded in writing, direct that the insurer who ultimately may become liable for such claim, shall be impleaded as a party to the proceeding. In that event, the insurer shall have a right to contest the claim on all or any of the grounds that are available to the person against whom claim is made without prejudice to the provisions contained in Sub-sec. (2) of Sec. 149.

4. In view of Sec. 170 of the Act, without prejudice to Sub-sec. (2) of Sec. 149, an insurer who is impleaded by the order of the Tribunal for the reasons recorded by it, shall have the right to contest on all grounds on merit and the provisions contained in Sub-sec. (2) of Sec. 149 limiting the right of the insurer to challenge the award would not be a bar. Sec. 149 (2) of the Act need be quoted, which runs thus :

“149. Duty o