An insurance company can defend a claim not only on the grounds which are available to it under Section 96(2) of the old Act and under Section 149(2) of the new Act, but it can also defend the action on other defences which are open to the insured if the right is reserved in the policy to defend the action in the name of the insured by keeping a reservation clause, and if the right is not reserved in the policy by enabling provision contained in Section 170.

S.K. Dubey, J.

1. Hon'ble the Chief Justice has ordered on a reference being made by one of us (S.K. Dubey, J.) that this case be placed before the Division Bench for the opinion of the Bench on the two questions specifically posed and for deciding the revision on merits. Questions posed are these:

(1) Whether in a case where the insurance policy contains reservation clause the insurance company can raise all the defences which are available to the insured?

(2) Whether a revision under Section 115 of the Civil Procedure Code lies to High Court against an order passed by the Motor Accidents Claims Tribunal?

2. Facts giving rise to this revision are these. The applicant/claimant filed an application under Section 166 of the Motor Vehicles Act, 1988, (for short, the 'new Act') and claimed compensation of Rs. 3,53,000 for the injuries received by her in a motor accident caused on 3.8.1992 by truck No. HRP 8622 owned by non-petitioner No. 2, driven by non-petitioner No. 1 and insured by the United India Insurance Co. Ltd., non-petitioner No. 3. After notice, all the three non-petitioners filed their written statements denying the claim. At the trial, the insurance company made a prayer to permit it to cross-examine the witnesses of the petitioner not only on the defences available to the insurance company under Section 149(2) of the new Act, corresponding to Section 96(2) of the Motor Vehicles Act, 1939, (for short, the 'old Act'), but on all defences which are available to the insured against a third party as the insurance company under the contract of insurance, i.e., the policy, had reserved the right in the policy of insurance under 'reservation clause' which reads thus:

No admission, offer, promise, payment of indemnity shall be made or given by or on behalf of the insured without the written consent of the company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the company may require.

3. The petitioner/claimant objected to the said prayer and contended that no such permission can be granted as the owner and driver are defending the claim and there being no collusion, the insurance company can defend the claim only on the defences as are available under Section 96(2) of the old Act and Section 149(2) of the new Act.

4. The Claims Tribunal, vide order dated 3.11.1993, placing reliance on a Full Bench decision of this court in case of Mangilal v. Paras ram 1970 ACJ 86 (MP) and the Full Bench decisions of the Gauhati and Kerala High Courts in United India Insurance Co. Ltd. v. Member, Motor Accidents Claims Tribunal, Lakhimpur 1993 ACJ 828 (Gauhati) and in New India Assurance Co. Ltd. v. Celine 1993 ACJ 371 (Kerala), respectively, permitted the insurance company to cross-examine and to defend the claim on all grounds which are available to owner of the vehicle. Aggrieved of this order, the petitioner/claimant has filed this revision. At the time of hearing of the revision, the learned counsel for the insurance company, placing reliance on a decision of a learned single Judge in the case of Dimple v. Lajjaram l992 ACJ 967 (MP), rendered by Dr. T.N. Singh, J. and an unreported decision by R.C. Lahoti, J. in Safiya Khatun v. Shivnesh Chandra Civil Revision No. 137 of 1992, who followed the decision in Dimple's case (supra), raised a preliminary objection about the maintainability of revision. The two decisions being in conflict with the decision of this court in Krishan Gopal v. Dattatrya 1971 ACJ 372 (MP), wherein, on a difference of opinion between the two Judges, constituting the Division Bench (S.B. Sen and S.M.N. Raina, JJ), the third Judge, J.R. Bhave, J. held that the Mo