JUDGMENT Vinod K. Sharma, J. - The present appeal arises out of award dated 21.12.1998 passed in MACT Case No. 175 of 1996 by the learned Motor Accident Claims Tribunal, Karnal (for short the Tribunal). 2. Claimant Binu Sidhu, respondent No. 1 herein had filed claim petition under Section 166 read with Section 163-A of the Motor Vehicles Act, 1988 (for short the Act) for grant of compensation to the tune of Rs. 2,55,00,000/- (two crores fifty five lacs) on account of injuries caused to him which resulted in physical disability and permanent handicapness which rendered him unfit for job. It was claimed that on account of accident, he had lost the earning capacity for ever. It was further claimed that on account the said accident, his marriage prospects have completely marred. 3. It was alleged in the claim petition that on July 21, 1996 while the claimant was on his way from Chandigarh to Delhi in Car No. DL-1N-0624. At about 6.30 a.m. when he reached near P.T.C. Gate, HAP Complex, Madhuban, on G.T. Road, a Canter bearing registration No. HR-37-2247 came from the opposite side which was being driven by Soran Dass, respondent No. 2 herein in a rash and negligent manner, struck against the car of the claimant by coming on the wrong side of the road. In spite of best efforts by the claimant-respondent to avoid the accident, the Canter struck against the car resulting in causing multiple injuries to the claimant. FIR No. 465 was registered at Police Station Sadar, Karnal against the driver of the Canter namely Soran Dass. 4. The claim petition was contested by the respondents i.e. driver and owners of the Canter i.e. Smt. Kusum Lata Bansal and Sanjay Bansal, who denied the contents of the claim petition. It was claimed that the accident had occurred due to negligence of the claimant himself. However, they admitted that the Canter was insured with respondent No. 3 i.e. New India Assurance Company. 5. The Insurance Company, respondent No. 3 filed a separate written statement wherein besides raising preliminary objections, it was pleaded that the driver was not having a valid driving licence. On merit, the claim raised in the petition was denied. It was pleaded that the claim was highly exaggerated. 6. On the pleadings of the parties following issues were framed :- "1. On merit, the claim raised in the petition was denied. It was pleaded that the claim was highly exaggerated. 6. On the pleadings of the parties following issues were framed :- "1. Whether the accident in question took place on 21.7.1996, due to rash and negligent driving of Soran Dass, respondent No. 1, driver of Canter No. HR-37-2247, resulting into the injuries to Binu Sidhu claimant, as alleged ? OPP 2. To what amount of compensation the claimant is entitled to and from whom ? OPP 3. Whether the driver of the offending vehicle was not holding a valid driving licence at the time of accident in question ? OPR 4. Relief." Learned Tribunal on issue No. 1 came to the conclusion that the accident in question had taken place on 21st of July, 1996 due to rash and negligent driving of Soran Dass, driver of Canter No. HR-37-2247 resulting in causing injuries to Binu Sidhu, claimant. 7. On issue No. 2, the claimant was held entitled to the compensation to the tune of Rs. 35,00,000/- (Rs. Thirty five lacs), while issue No. 3 was decided against the Insurance Company, appellant herein and it was held that driver of the offending vehicle was having a valid licence at the time of accident in question. 8. Against the award passed by the learned Tribunal, first appeal against the order bearing FAO No. 3020 of 1999 was filed by the New India Assurance Company in which the owners i.e. Smt. Kusum Lata and Sanjay Bansal were also impleaded as the appellants. However, subsequently, the appellant Nos. 2 and 3 moved an application to withdraw the appeal and the said application was allowed and appeal qua respondent No. 2 and 3 was dismissed as withdrawn. 9. Faced with this situation, the appellant-New India Assurance Company has filed CM No. 17769-CII of 2006 under Section 170 of the Act read with Section 151 of the Code of Civil Procedure for permission to contest the appeal on merit and also in the name of the insured and also on the ground that the respondent-claimant had played a fraud with the Court as the owner and driver have colluded with the respondent-claimant in the present case. Along with the appeal, the appellant-Insurance Company, filed an application under Section 170 of the Act for permission to prosecute the appeal on merits and also in the name of the insured-owner and pleaded that owner of the vehicle had filed an appeal along with Kusum Lata and Sanjay Bansal. In the application, it was further stated that FAO No. 1375 of 2000 was filed by Binu Sidhu for enhancement of compensation. However, on account of collusion, an application was moved for withdrawal of the appeal realising that no such independent appeal was filed by the claimant in the High Court. It was disclosed in the application that the New India Assurance Company had filed an application for transposing it as an appellant and the same was allowed by this Court and thus the New India Assurance Company Limited is also an appellant. 10. In the application, it was further pleaded that in view of condition No. 2 of the insurance policy, the appellant insurance company had reserved a right to take over the defence of the case in the name of the insured. The said condition reads as under :- "No admission, offer, promise, payment or 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 on settlement or any claim or prosecute in the name of the insured for its own benefit any claim for identity 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." On the basis of the aforesaid condition and the pleadings, the appellant- applicant prayed that application under Section 170 of the Act be granted keeping in view the fact that the driver and owner was not contesting the same and a fraud was played by the owner and claimant by colluding with each other. 11. The said application was contested by the counsel for the respondent- claimant wherein collusion by the driver and owners was denied. 11. The said application was contested by the counsel for the respondent- claimant wherein collusion by the driver and owners was denied. However, in reply to para 16 of the application, it was pleaded that no benefit from clause 2 of the insurance policy can be derived as the insurance company can contest the claim petition only on the grounds contained in Section 149 of the Act. It was, therefore, prayed that the application filed under Section 170 of the Act be dismissed. 12. Shri L.M. Suri, learned Senior Counsel appearing with Shri R.K. Bashamboo, Advocate, on behalf of the appellant, while placing reliance on the judgment of the Honble Supreme Court reported in British India General Insurance Co. Ltd. v. Captain Itbar Singh and others, AIR 1959 SC 1331, contended that in view of clause 2 of the insurance policy, it was not open to the Insurance Company to contest the claim on merit. He made reference to para 16 of the judgment which reads as under :- "Again, we find the contention wholly unacceptable. The Statute has no doubt created a liability in the insurer to the injured person, but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore to the statute for reasons of hardship. We are furthermore not convinced that the statute causes any hardship. First the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defences open to the assured can then be urged by him and there is no defence that he claims to be entitled to urge. He can thus avoid all hardship, if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do. Secondly, if he has been made to pay something which on the contract of the policy he was not bound to pay, he can under the proviso to sub-section (3) and under sub- section (4) recover it from the assured. It was said that the assured might be a man of straw and the insurer might not be able to recover anything from him. It was said that the assured might be a man of straw and the insurer might not be able to recover anything from him. But answer to that is that it is the insurers bad luck. In such circumstances the injured person also would not have been able to recover the damages suffered by him from the assured, the person causing the injuries. The loss had to fall on some one and the statute has thought fit that it shall be borne by the insurer. That also seems to us to be equitable for the loss falls on the insurer in the course of carrying on his business, a business out of which he makes profit, and he could so arrange his business that in the net result he would never suffer a loss. On the other hand, if the loss fell on the injured person, it would be due to no fault of his; it would have been a loss suffered by him arising out of an incident in the happening of which he had no hand at all." 13. The learned senior counsel for the appellant thereafter placed reliance on a judgment of the Kerala High Court in the case of New India Assurance Co. Ltd. v. Celine and others, 1993 ACJ 371, judgment of the Madhya Pradesh High Court in Sarjubai v. Gurdeip Singh and others, 1994 ACJ 997 and the judgment of this court in the case of The New India Assurance Co. Ltd. v. Randhir Singh and others, 1971(1) PLR 532, wherein in view of the judgment of the Honble Supreme Court referred to above it has been held that in case the Insurance Company reserves a right to contest the claim, then it can do so. 14. The other contention of the learned senior counsel for the appellant was that the award has been obtained by fraud and, therefore, the same stands vitiated and it is open to the Insurance Company to challenge the award on merit. For this purpose, learned counsel for the appellant placed reliance on the judgments of the Honble Supreme Court in the case of United India Insurance Co. Ltd. v. Rajendra Singh and others, 2000 PLR 787; S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs. For this purpose, learned counsel for the appellant placed reliance on the judgments of the Honble Supreme Court in the case of United India Insurance Co. Ltd. v. Rajendra Singh and others, 2000 PLR 787; S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs. and others, 1995(1) PLR 293 and the judgment of this Court in Ashwani Kumar Aggarwal v. Smt. Kalawati, 2002(2) PLR 236 (P&H). 15. Mr. Ashit Malik, learned counsel appearing for the claimant-respondent No. 1, on the other hand, placed reliance on a Division Bench judgment of this Court in the case of National Insurance Company Ltd. and another v. Balbir Kaur and others, 2000(2) PLR 750 to contended that it is not open to the Insurance Company for the first time to take up the defence in appeal which was available to the insured. He further pleaded that it is not open to the Insurance Company to file an appeal other than one provided under Section 149(2) and that no application under Section 170 of the Act is maintainable in appeal. 16. The learned counsel for the respondent further placed reliance on a Division Bench of this Court in the case of National Insurance Co. Ltd. v. Murti Devi, 2001(4) RCR(Civil) 786 to contend that in case there is no fraud, then it is not open to the appellant to move the Tribunal by taking appropriate proceedings. However, the same cannot be challenged in appeal. 17. Learned counsel thereafter placed reliance on the judgments of the Honble Supreme Court reported in Rita Devi and others v. New India Assurance Co. Ltd. and another, 2000(2) PLR 768; National Insurance Company Ltd. v. Nicolletta Rohtagi and others, 2002(3) PLR 621 and in the case of New India Assurance Co. Ltd. v. Kiran Singh and others, 2004 ACJ 1176 to contend that it is not open to the Insurance Company to challenge the quantum of compensation or take pleas contrary to Section 149(2) of the Act in the absence of an application being moved under Section 170 of the Act at a stage before starting the evidence. 18. Ltd. v. Kiran Singh and others, 2004 ACJ 1176 to contend that it is not open to the Insurance Company to challenge the quantum of compensation or take pleas contrary to Section 149(2) of the Act in the absence of an application being moved under Section 170 of the Act at a stage before starting the evidence. 18. The question, therefore, arises for consideration in the present case is "whether it is open to the Insurance Company to contest the appeal on merit in the absence of an application having been moved under Section 170 of the Act also keeping in view the bar imposed under Section 149(2) of the Act. Sections 149 and 170 of the Act read as under :- "Section 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. - (1) If, a certificate of insurance has been issued under sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub- section (1) of Section 147 (being a liability covered by the terms of the policy) or under the provisions of Section 163-A is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action or any of the following grounds, namely :- (a) that there has been a breach of a specified condition of the policy, being one of the following conditions namely :- (i) a condition excluding the use of the vehicle - (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle, or (ii) a condition excluding driving by a named person or persons or by any persons who is not duly licensed, or any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non- disclosure of a material fact which was false in some material particular. Section 170. Impleading insurer in certain cases. 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 (c) 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 prejudice to the provisions contained in sub-section (2) of Section 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." 19. Though the provisions of the Act clearly stipulate that in absence of permission under Section 170 of the Act, it is not open to the Insurance Company to contest the claim on merit, however, in view of the law laid down by the Honble Supreme Court in British India General Insurance Companys case, in the judgment of the Kerala High Court in New India Assurance Co. Ltd.s case, judgment of this Court in The New India Assurance Co. Ltd.s case (supra), the Insurance Company is entitled to contest the appeal on merit. However, the Honble Supreme Court in the case of Rita Devi v. New India Assurance Co. Ltd., in the case of National Insurance Company Limited v. Nicolletta Rohtagi and in the case of New India Assurance Co. Ltd. v. Kiran Singh (supra), lays down that Insurance Company cannot be permitted to challenge an award on the grounds other than provided under Section 149(2) of the Act. 20. In view of the conflicting situation referred to above, I feel that the matter requires considerations by a larger Bench on the following law point : "Whether the Insurance Company can be permitted to challenge the award in appeal on the grounds other than one provided under Section 149(2) of the Act, where the condition exists in the Insurance Policy permitting the Insurance Company to raise all those defences." Let this matter be placed before Honble the Acting Chief Justice for constitution of a larger Bench. Order accordingly.