Hon'ble S.C. Chaurasia,J. -

1. This is an appeal filed under Section 173 of the Motor Vehicle Act, 1988 (In short 'the Act') against the award of Motor Accident Claims Tribunal. Learned counsel for the appellant has assailed the impugned award on quantum of compensation.

2. However, learned counsel for the respondents has raised a preliminary objection that the present appeal is not maintainable as no permission under Section 170 of the Act was obtained from the learned Tribunal.

3. We have heard learned counsel for the parties at length and perused the record. Learned counsel for the respondents has relied upon the judgment of the Hon'ble Supreme Court reported in 2003(3) T.A.C. 293 (S.C.); National Insurance Co. Ltd. vs. Nicolletta Rohtagi and others. In the case of Necolletta Rohtagi (supra), Hon'ble Supreme Court has reiterated the law that appeal being creation of statute, it can be filed only on the grounds mentioned in the statute. Hon'ble Supreme Court held that the appeal shall be maintainable only on other grounds specified in Section 149 (2) of the Act subject to fulfilment of the conditions specified in Section 170 of the Act. The relevant portion from the judgment of Nicolletta Rohtagi (supra) is reproduced as under:-

"16. For the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in sub-section (2) of Section 149 of 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds.

19. In Shankarayya and another vs. United India Insurance Co. Ltd. and another 1998 (3) SCC 140, it was held that an insurance company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.

25. We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tort feasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.

26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a ) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Sectio

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