By the Court.—This appeal directed against the award of the Motor Accident Claims Tribunal (in brief the tribunal) gives rise to an interesting question of law, whether on an application filed under Section 170 of the Motor Vehicles Act, 1988 (in brief the Act) by the insurance company, if no order is passed by the tribunal, what would be its effect on the award; whether the insurance company can be permitted to challenge the award of the tribunal in an appeal under Section 173(1) if the application under Section 170 of the Act is not decided?

2. The brief facts are that on 26.11.1999 Dr. Shiv Kumar was riding on his Motor Cycle No. UP-78/G-6967. On the pillion of the motor cycle Shiv Shankar Verma was sitting. The Truck No. UP-78/T-1896 dashed the motor cycle. Due to injuries received in the accident Dr. Shiv Kumar died on the spot. The pillion rider Shiv Shankar Verma was also seriously injured and he died at Regency Hospital. The truck was owned by Smt. Satyawati and Shailendra Kumar. It was insured by the appellant.

3. The legal representatives of Dr. Shiv Kumar filed M.A.C.P. No. 142 of 2000 claiming Rs. 25,20,000/- as compensation under Sections 140 and 166 of the Act and Rs. 30,000/- damages for motor cycle. The owners and insurer both filed written statements. The appellant insurance company filed an application under Section 170 of the Act which remained pending and no order was passed on it by the tribunal.

4. The tribunal recorded a finding that the accident took place due to rash and negligent driving of the driver of the truck. The motor cyclist Dr. Shiv Kumar had a valid driving licence. The driving licence of the truck driver Ashok Kumar was valid. The claim petition was not bad for non-joinder of necessary parties. The claim petition was allowed by the tribunal and compensation of Rs. 7,37,500/- was awarded to the claimants. The award of the tribunal dated 6.10.2007 has been challenged in this appeal.

5. We have heard Shri Vinay Khare, learned counsel for the appellant and Shri Ramesh Singh, learned counsel for the claimant’s respondent Nos.1 to 3. Shri Rajiv Gupta and Shri Rakesh Dubey learned counsel for the owner’s respondent Nos. 4 and 5 have also been heard. With the consent of the counsel for the parties we have taken up this appeal for final hearing. The filing of paper book has been dispensed with.

6. The learned counsel for the appellant has urged that the tribunal has not passed any order on the application under Section 170 either allowing or rejecting it which is a mandatory requirement of law, therefore, even in absence of availability of any grounds of breach of insurance policy mentioned in Section 149(2) of the Act the appellant can challenge the award of the tribunal in an appeal under Section 173 of the Act. He urged that if the tribunal does not pass any order on the application under Section 170 then in law it would be deemed that the application under Section 170 has been allowed. On the other hand the learned counsel for the respondents have urged that since no order had been passed on the application filed under Section 170 it would be deemed that the application had been rejected by the tribunal and the appellant could maintain this appeal only on the grounds provided under Section 149(2) of the Act.

7. For appreciating the arguments of learned counsel for the parties it is necessary to extract Section 170 of the Motor Vehicles Act, 1988 as below :

“Section 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 prejudic