JUDGMENT Hon’ble Dilip Gupta, J.—I.C.I.C.I. Lombard General Insurance Company Limited has filed this petition for quashing the order dated 24th February, 2011 passed by the Additional District and Sessions Judge, Court No. 3, Meerut in Motor Accident Case No. 778 of 2008 filed by the claimants who have been arrayed as respondent Nos. 2 to 4 in this petition. The petitioner has also sought a further relief that the application filed by the petitioner under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’) be allowed so as to give a right to the petitioner to contest the aforesaid case on the grounds available to the insured owner. 2. It is stated that claimants-respondent Nos. 2 to 4 preferred a claim petition under Section 140/166 of the Act seeking compensation on account of the death of Sanjeev Kumar Agarwal in a road accident. This claim petition was numbered as Motor Accident Case No. 778 of 2008. The owner of the vehicle was arrayed as opposite party No. 1, while the petitioner-Insurance Company was arrayed as opposite party No. 2. It was alleged that the deceased was going to his residence on a scooter when Maruti Zen which was coming from the opposite side hit the scooter of the deceased from the front as a result of which he fell down on the left side of the road with full force and sustained injuries on the head and was declared dead. It was also alleged that the deceased was aged about 46 years and was the proprietor of M/s Vijay Laxmi Printers, Devi Nagar, Surajkund Road, Meerut having a monthly income of Rs. 15,000/-. 3. The owner of the vehicle filed a Written Statement. In paragraphs 9 and 15 of the Written Statement, it was specifically stated that no accident had taken place with the car of the owner and this fact was also mentioned in paragraph 24 of the Written Statement. It was further stated that the driver of the car was driving it cautiously and very slowly when the deceased came from the front driving the scooter rashly and negligently and as he lost control he hit the wall alongside the road as a result of which he sustained injuries and ultimately died. It was further stated that the driver of the car was driving it cautiously and very slowly when the deceased came from the front driving the scooter rashly and negligently and as he lost control he hit the wall alongside the road as a result of which he sustained injuries and ultimately died. It was also stated that since the driver of the car had a valid and effective driving license and the vehicle was insured with the Insurance Company, the liability will be that of the Insurance Company. 4. A Written Statement was also filed by the petitioner-Insurance Company. It was stated that information regarding the accident, as contemplated under Section 158(6) of the Act, was not given to the petitioner. It was also asserted that as there seemed to be a collusion between the claimant and the owner of the vehicle, the Insurance Company should be permitted to contest the case on all or any of the grounds available to the owner of the vehicle as provided for under Section 170 of the Act. 5. An application was also moved by the Insurance Company under Section 170 of the Act with the following averments : “1. The applicant ICICI Lombard Insurance Co. begs to submit. That on inquiry made by the respondent Insurance Co. it is apprehended that there is collusion between the petitioner and the owner of the vehicle and the owner is not co-operating with the respondent Insurance Company in contesting the case. 2. That under the provisions of Section 170 of the M.V. Act the applicant has a right to contest the claim on all or any of the grounds that are available to the insured. It is, therefore, prayed that the learned Court may be pleased to allow the applicant to contest the claim on all the grounds that are available to the insured.” 6. The Claims Tribunal by the order dated 24th February, 2011 has rejected this application and the relevant observations are as follows : “.....from the perusal of the record, I find the owner of the offending vehicle has cross examined the witnesses of the petitioner on all points and the owner has also produced himself as witness by coming to the witness box and the insurance company has cross examined the owner of the offending vehicle. Hence in these circumstances, it cannot be stated that the owner of the offending vehicle has gone with the petitioner and it can be stated that owner has cross examined on points on which he should. Hence, Insurance Company cannot be permitted to take all pleas and defences available to the owner of the offending vehicle. The application has no force and is hereby rejected.” 7. It is this order dated 24th February, 2011 that has been impugned in the present petition. 8. Sri Rahul Sahai, learned counsel for the petitioner has submitted that the Claims Tribunal committed an illegality in rejecting the application filed by the Insurance Company under Section 170 of the Act as the finding of the Claims Tribunal is patently illegal and against the materials available on record. It is his submission that that the contest by the owner was merely an eyewash and he was colluding with the claimant. In support of this contention he has placed reliance upon the judgments of this Court in Oriental Insurance Company Ltd., through Divisional Manager, Meerut v. Smt. Manju and others, 2007(4) ADJ 101 (DB), National Insurance Company Ltd. v. Smt. Jairani and others, 2009 (1) ADJ 209 and New Delhi Assurance Co. Ltd. Aligarh v. Anokhey Lal and others, 2009 (3) ADJ 274 . 9. Sri Madan Mohan, learned counsel appearing for the claimant has, however, submitted that there is no infirmity in the impugned order which may call for any interference under Article 226 of the Constitution. It is his submission that in the Written Statement filed by the owner of the vehicle, it was clearly stated that accident had not taken place with the vehicle insured with the Insurance Company and on the contrary the scooter was being driven recklessly. 10. It transpires from the record of the case that a Written Statement was filed by the owner of the vehicle insured with the Insurance Company. In the Written Statement, it was specifically stated that no accident had taken place with the car and on the other hand the driver of the vehicle was driving the car very cautiously and slowly when the deceased came from the front driving the scooter rashly and negligently and after loosing his control hit the wall alongside the road as a result of which he sustained fatal injuries and died. It cannot, therefore, be said that the owner of the car admitted that an accident had taken place with the car. The owner of the vehicle also cross-examined the witnesses produced by the claimant and had also produced himself as a witness and the Insurance Company has cross-examined him. In such circumstances, it cannot be said that there was any collusion between the claimant and the owner of the vehicle. 11. Section 170 of the Act deals with impleading insurer in certain cases and is as follows : “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 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.” 12. In Smt. Manju and others (supra), the issue that arose was whether an appeal would lie under Section 173 of the Act at the behest of the Insurance Company when its application under Section 170 of the Act had been rejected. This decision, therefore, does not help the petitioner. In Smt. Jairani and others (supra), the issue that arose for consideration was whether the Insurance Company can be permitted to challenge the award of the Tribunal in an appeal under Section 173 of the Act, if the application filed by the Insurance Company under Section 170 of the Act was not decided and it is in this context that the Court observed : “The contest of the claim on merits by the owner must be such as if he is trying to defeat the claim and is making every possible effort to win the case. The contest should be real and merely filing of written statement or leading some oral and documentary evidence or cross examination of some witnesses, would not be sufficient. The contest should be real and merely filing of written statement or leading some oral and documentary evidence or cross examination of some witnesses, would not be sufficient. The tribunal must come to a definite conclusion that the owner of the vehicle is making every possible effort to succeed in getting the claim petition dismissed. Only then the application of the insurance company under section 170 of the Act can be rejected. In absence of finding by the tribunal about genuineness of contest by the owner supported by cogent reasons the application under section 170 of the Act filed by the insurance company should not be rejected.” 13. In Anokhey Lal and others (supra), the Court observed : “Thus, from the aforesaid provisions of Section 170 of the Act it is clear that the right of insurer to contest the claim on merit setup by the victim/heirs of deceased of motor accident is no doubt dependant upon the existence of either of the two conditions indicated therein, and it is essential element for the satisfaction of claims tribunal for directing the insurer to be impleaded as necessary party but the existence of either of the two conditions does not ipso facto entitle the insurer to contest the claim on merit. It is only on such impleadment, the insurer would be entitled to contest the claim on the grounds available to the insurer and insured both but in my opinion, on existence of either of aforesaid two conditions it is obligatory upon the claims tribunal to direct that the insurer shall be impleaded as a party in the claim petition. The expression “may” used in the phrase “It ‘may’ for reason to be recorded in writing, direct that insurer shall be impleaded as a party to the proceeding” should be treated to be mandatory provision and should be read as “shall” and not merely as a directory provision so as to leave any discretion to the claims tribunal to implead insurer as a party or not in the claim petition. The imperative effect of the expression “may” is also fortified by the phrase “the insurer..........shall be impleaded as a party”. The imperative effect of the expression “may” is also fortified by the phrase “the insurer..........shall be impleaded as a party”. Therefore, on existence of either of the two conditions enumerated in Section 170 of the Act, the claims tribunal is bound to direct the insurer to be impleaded a party in claim petition to contest the claim on merits also, besides, the statutory defences available to it under Section 149(2) of the Act. But unless formal order is passed by claims tribunal by following the procedure prescribed under Section 170 of the Act as indicated in the cases referred hereinbefore granting permission to the insurer to contest the claim on merit, it is not open for the insurer to contest the claims setup by the injured/victim/heirs of deceased of motor accident on merits merely because claimant has already impleaded the insurer as necessary party in the claim petition.” (emphasis supplied) 14. In the application filed by the Insurance Company under Section 170 of the Act, as noticed hereinabove, the averment made is that on inquiry the Insurance Company apprehends that there is a collusion between the petitioner (claimant) and the owner of the vehicle and the owner of the vehicle is not co-operating with the respondent (Insurance Company) in contesting the case. The Written Statement filed by the owner of the vehicle does not, in any manner, indicate that there is a collusion between the claimant and the owner of the vehicle since the owner of the vehicle has even denied the happening of the accident with the offending vehicle as claimed by the claimant. The owner of the vehicle has cross-examined the witnesses of the claimant. It is only on existence of either of the two conditions enumerated in Section 170 of the Act that the Tribunal can direct the Insurer to be impleaded as a party who shall have the right to contest the claim on all or any of the grounds available to the person against whom the claim has been made. 15. There is, therefore, no infirmity in the impugned order which may call for any interference under Article 226 of the Constitution. 16. The writ petition is, accordingly, dismissed. —————