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 Motor Accidents Claims Tribunal constituted under Section 110 of the Act is a civil court and a revision petition would lie under Section 115 of the Code of Civil Procedure against an order passed by it in the course of proceedings before it. As on the question of maintainability of revision and also on the question of availability of defences to an insurance company while defending a claim before the Tribunal, there was divergence of opinion, therefore, one of us (S.K. Dubey, J.) ordered the matter to be placed before the Hon'ble the Chief Justice for constituting the appropriate Bench and as such, this revision has come up before us for its decision.
5. Mr. N.D. Singhal, counsel for the petitioner and Mr. B.N. Malhotra, counsel for the non-petitioner No. 3, heard. The owner and driver remained unrepresented in spite of service.
6. For the convenience sake, we shall take up the question No. 2 first. It is not necessary to burden this order by extracting the various provisions of Section 110 to Section 111 of Chapter VIII of the old Act and the corresponding provisions from Sections 165 to 176 of Chapter XII of the new Act, for decision of the question about the maintainability of revision. From a bare reading of the language of Sections 110 to 110-F, it is clear that these provisions made a change of Forum, i.e., a change of adjectival or procedural law and not of substantive law, for the death or personal injuries. The substantive law, i.e., the law of Torts remains. Prior to incorporation from 16.2.1957 of Sections 110 to 110-F of the Act by Act No. 100 of 1956, by Section 80 thereof, a victim of the motor accident could claim compensation for the tortious act by instituting a proper suit in a civil court and the civil court was vested with the jurisdiction to award damages for the same. But that was a cumbersome and expensive remedy. Therefore, the Claims Tribunal was constituted under Section 110 of the old Act to deal with the claim, i.e., on an application for compensation arising out of an accident with a view to provide cheaper and quicker relief to the victims of the motor accidents and since then, by Section 110-F, the jurisdiction of the civil court was barred. [See New India Assurance Co. Ltd. v. Shanti Misra 1976 ACJ 128 (SC)]. The proceeding before the Tribunal commences on an application to be filed under Section 110-A of the old Act and Section 166 of the new Act. Section 110-C lays down the procedure and powers of the Claims Tribunals to be followed in an enquiry to be made for passing an award by the Claims Tribunal under Section 110-B. After an award is passed under Section 110-B, an appeal lies under Section 110-D of the old Act and under Section 173 of the new Act. State Government has framed Rules known as M.P. Motor Vehicles Rules, 1974. Relevant rules are from Rule 272 to Rule 298 which are contained in Chapter XI, which prescribe the complete procedure, right from the filing of the application for compensation under Section 110-A to appeals to High Court. On a reading of corresponding provisions of the old and new Acts, and the Rules, it is evidently clear that Forum of Civil Court to claim compensation or damages caused by the use of motor vehicle has been substituted and is vested with the Tribunal. Therefore, prima facie, the Claims Tribunal is a civil court and is subordinate to the High Court in hierarchy of the courts established for the purpose of administration of justice.
7. The distinction between the courts of general jurisdiction and courts of special jurisdiction was noted by their Lordships of Privy Council in Rajah Nilmoni Singh Deo Bahadur v. Taranath Mookerjee 9 IA 174 and the observations of that case were interpreted by the Madras High Court in the case of Sriramrao v. Suryanarayanamurthi AIR 1954 Madras 340, to mean thus:
Courts constituted for deciding on purely civil questions between persons seeking their civil rights must be considered to be civil courts, notwithstanding that they are created by a special statute and are mentioned in that statute as distinct from civil courts. The true import of such a distinction is that while special courts have jurisdiction over a limited class of suits specified in the statute the jurisdiction of the civil courts is not limited to any class of suits. To this extent there is a distinction between the two classes of courts but in respect of the class of suits actually entrusted to the jurisdiction of special courts they perform in relation to them functions which but for the special Act would have been performed by civil courts and to that extent the special courts can be said to be civil courts in a different attire.
8. In the case of Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat AIR 1970 SC 1, the Supreme Court for determining whether a court or Tribunal is subordinate to the High Court or not has observed thus:
The right of appeal is one of entering a superior court and invoking its aid and interpretation to redress the error of the court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the latter. When the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.
9. In case of Krishan Gopal v. Dattatrya 1971 ACJ 372 (MP), when the matter came on difference of opinion before him, Bhave, J., who referred to relevant provisions and the decisions in paras 8 and 9 above and taking support from the two decisions of this court, wherein this court held that the Claims Tribunal is a civil court [Radhabai Bhikaji v. Baluram Daluram 1970 ACJ 403 (MP) and Hayat Khan v. Mangilal 1970 ACJ 331 (MP)] and observed that once it is held that the Claims Tribunal is a court of judicature, it must follow that under Section 115 of Code of Civil Procedure, which is general in terms, the High Court is entitled to revise the orders of that court. Section 3 of the Code of Civil Procedure clearly lays down that all courts constituted within a civil district are subordinate to the District Court and are also subordinate to the High Court. The Claims Tribunal must, therefore, be held to be subordinate to the High Court. Both the conditions under Section 115 of the Code of Civil Procedure are thus satisfied. There is, therefore, no escape from the conclusion that the orders passed by the Claims Tribunal can be revised under Section 115 of the Code of Civil Procedure.
10. Recently, R.D. Shukla, J. in case of New India Assurance Co. Ltd. v. Ajay 1994 ACJ 987 (MP), placing reliance on Krislum Gopal's case, 1971 ACJ 372 (MP), did not agree with the view taken in Dimple's case, 1992 ACJ 967 (MP) and held that Motor Accidents Claims Tribunal is a civil court, subordinate to High Court and a revision lies to High Court against an order of interim award passed under Section 140 of the new Act.
11. A Division Bench of Rajasthan High Court in the case of Darshan Singh v. Ghewarchand 1993 ACJ 534 (Rajasthan), referring to the various provisions of Sections 110-A to 110-C, 111-A and Rule 20 of the Rajasthan Motor Vehicles Accidents Claims Tribunals Rules, 1964, has held that the District Judge who functions as a Claims Tribunal is not only within the administrative control of the High Court, but also subordinate to it under Section 115, Code of Civil Procedure. Therefore, the order passed by the Tribunal is revisable under Section 115. See also Rajasthan High Court's decision in case of Dushyant Kumar v. Rajasthan State Road Trans. Corporation 1991 ACJ 150 (Rajasthan), in which the same view is taken.
12. A Full Bench of this court in case of Sarmaniya Bai v. Madhya Pradesh Rajya Parivahan Nigam 1990 ACJ 862 (MP), wherein the question was whether the Claims Tribunal passing an award under the provisions of the Act for compensation to claimants for death or injuries lacks jurisdiction to enforce its award adopting procedure provided under the Code of Civil Procedure, exercising its inherent jurisdiction in that regard, referring to the provisions of Section 110-C and Rule 297 of the Rules, in para 15, relying on the decision of the Supreme Court in the case of State of Haryana v. Darshana Devi 1979 ACJ 205 (SC) and a decision of Apex Court in case of Bhagwati Devi v. I.S. Goel 1983 ACJ 123 (SC), wherein it has been held that the Claims Tribunal was a civil court, it observed that the Tribunal is a court of civil judicature which is required to follow the procedure prescribed under Code of Civil Procedure in that regard. It is obviously an essential attribute of the Claims Tribunal that it acts judicially and exercises civil jurisdiction in deciding claims relating to civil wrongs and civil liability, of tortfeasors and liability also of insurers, arising out of statutory and contractual obligations. The jurisdiction of the Tribunal in applying any provision of the Code of Civil Procedure for exercising any power in accordance with the procedure prescribed in Code of Civil Procedure is not impaired in any manner as it has got all the trappings of the civil court. In para 19, it was further observed that the true character of the Claims Tribunal is exposed by the requirement of the same being constituted by judicially trained persons of high calibre such as a District Judge or a High Court Judge, as per Section 110(3). Factually, the position is more potent and patent in this State as District Judges and Additional District Judges are appointed under Section 110 to perform duties of Claims Tribunal as per Section 3, MP. Civil Courts Act, 'civil courts' are constituted with them (among others), in this State. Therefore, the court held by reading the provisions that the Claims Tribunal exercises jurisdiction of a civil court and as such it has jurisdiction to execute its own award under the provisions of Order 21 of Code of Civil Procedure.
13. Therefore, from the above discussion, it is clear that the Claims Tribunal is a 'civil court' and is subordinate to High Court, its orders are amenable to revisional jurisdiction of High Court under Section 115 of the Code of Civil Procedure.
14. However, the decision in Dimple's case, 1992 ACJ 967 (MP), rendered by Dr. T.N. Singh, J. takes a contrary view, wherein it has been held that no revision lies against an order rejecting an application under Section 140 of the Act, placing reliance on a Full Bench decision of this court in the case of Gay a Prasad v. Suresh Kumar 1992 ACJ 200 (MP), learned Judge observed that the provision of appeal or revision is creature of the statute. If legislature in enacting the special law thought it advisbale not to create the remedy of revision in respect of any order passed by the Claims Tribunal and thought it fit to provide appeals only against certain orders passed by the Tribunal. Power to make an order under Section 140 conferred on the Claims Tribunal under special law and any order passed by the Tribunal is not to be affected obviously in any manner by the provisions of the Code of Civil Procedure, including Section 115 thereof.
15. With respect, we may say that in case of Gaya Prasad, 1992 ACJ 200 (MP), the point of controversy was whether against an order of interim award passed under Section 140, an appeal lies under Section 173 of the new Act. While dealing with the question, the court observed that appeal is maintainable only against the award determining the compensation under Section 168 though interim order passed under Section 140 is in the case of trial of the claim, it carries also the implication of the finality, as interim order is not impugnable under any provisions of Chapter XII. Indeed, legislature's competence to make non-appealable any interim order from the scheme of Chapter X is beyond dispute, while R.C. Lahoti, J. took a contrary view. However, in that case, no question was involved for determination whether a 'Claims Tribunal' is subordinate to High Court and its orders are amenable to the revisional jurisdiction. Therefore, in our opinion, in case of Dimple, 1992 ACJ 967 (MP), reliance on Gaya Prasad's case, 1992 ACJ 200 (MP), was not appropriate. However, if the learned Judge was of the view that the order of the Claims Tribunal is not amenable to revisional jurisdiction of the High Court as the Claims Tribunal is not a 'civil court', with due respect, we are of the view that a Judge sitting singly could not have taken a contrary view to the one taken by the third Judge, on difference of opinion in Krishan Gopal's case, 1971 ACJ 372 (MP). Therefore, the view taken in Dimple's case (supra) and followed by R. C Lahoti, J. in Safiya Khatun v. Shivnesh Chandra Civil Revision No. 137 of 1992; decided on 30.9.1992, is contrary to the view taken in Krishan Gopal's case (supra), we respectfully are unable to subscribe and respectfully agree with the view taken in Krishan Gopal 's case (supra) and in case of New India Assurance Co. Ltd. v. Ajay 1994 ACJ 987 (MP).
16. Now coming to question No. 1, Mr. N.D. Singhal, learned counsel for the petitioner/claimant, contended that in case where the owner and driver are not ex pane and are contesting the claim and where there is no collusion, in view of Section 170 of the new Act, corresponding to Section 110-C (2-A) of the old Act, the insurance company cannot be allowed to contest the claim on all or any of the grounds that are available to the person against whom the claim is made unless the conditions in Sub-sections (a) and (b) of Section 170 are satisfied. Mr. Singhal tried to make out a distinction between Section 110-C (2-A) and Section 170 and submitted that under Section 149, it is the duty of the insurer to satisfy the judgment and award against the insured. Insurance company actually is not a necessary party, only a notice is to be given to insurer to put up the objection. Therefore, by putting a reservation clause in the policy, the defences which are not available to an insurer cannot be allowed to be added or raised. An insurer is entitled to contest the claim only on the grounds which are available under Sub-section (2) of Section 149; and on other grounds if the Claims Tribunal is satisfied that there is a collusion between the person making a claim and the person against whom the claim is made or the person against whom the claim is made has failed to contest the claim. Learned counsel pressed into service a Full Bench decision in the case of United India Fire and General Ins. Co. Ltd, v. Natvarlal 1988 ACJ 956 (MP) and decisions in cases of Oriental Insurance Co. Ltd. v. Mandakini 1989 (1) MPWN 238 and National Insurance Co. Ltd. v. Manjula Ben 1993 ACJ 57 (Rajasthan).
17. True, the Supreme Court, in case of British India General Insurance Co. Ltd. v. Captain Itbar Singh 1958-65 ACJ 1 (SC), while dealing with the question of availability of defences under Section 96(2) to an insurer, has held that the defences open to the insurer are limited to those enumerated in that section, which an insurance company could take. They are exhaustive and no more defences could be added thereto, unless such a right is reserved, and observed in para 16 thus:
(16) 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 other 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. But the answer to that is that it is the insurer's 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 someone 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 his 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.
18. A Full Bench of this court in case of Mangilal v. Paras ram 1970 ACJ 86 (MP), held that the insurance company can defend an action in the name of the insured if the right to do so had been reserved in the policy, the question was dealt with in paras 27, 28 and 29 of the report which we quote:
(27) It is an argument that negligence of the insured is irrelevant in a claim before the Tribunal against the insurer because under Section 96(2) of the Act, the defences open to the insurer are limited to those enumerated in that section. In our view, that is not so. The insurer may resist the claim against him in two ways: (1) That the insurer is not liable although the insured may be liable; and (2) that the insurer is not liable because the insured is not liable. Under the first head, the insurer is entitled to escape liability by saying that the policy is void because it was obtained by the insured on a false representation or non-disclosure of a material fact; or that the policy was cancelled before the accident; or that there has been a breach of a specified condition of the policy, being one of the conditions enumerated in the section. The insurer is debarred from raising any other ground of defence to avoid his liability, if the insured is found to have incurred the liability. Under the second head, the insurer can plead that there was no negligence on the part of the insured, to show that the insured incurred no liability so that the insurer's liability under the contract of indemnity does not arise. The insurer is entitled to raise all such pleas in defence as the insured can take to show that he (the insured) has not incurred the liability. This the insurer can do, as of right, in the name of the insured, provided that right is reserved in the policy. Section 96(2) has nothing to do with the second head of defences. All that Section 96(2) does is that it debars the insurer from taking up any defence other than those enumerated in it, to show that the insurer is not liable although the insured has incurred liability. This position is plain enough and is fully ' supported by the following observations in British India General Insurance Co. Ltd. v. Captain Itbar Singh 1958-65 ACJ 1 (SC):
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 other 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.(28) It is a further argument that the insured is neither a party to the proceedings before the Claims Tribunal, nor can there be any adjudication against him in the award made by the Tribunal, and, that being so, the question of negligence cannot be tried. As we read the provisions of the Act and the Rules made thereunder, we must hold that the insured is a necessary party; that he is bound by the award; and that he is liable to pay the amount of compensation minus that sum which the Tribunal specifies as the share payable by the insurer. The provisions contained in Sections 110 to 110-F enact complete procedure for the trial of claims and the determination of compensation. Under the Madhya Pradesh Motor Accidents Claims Tribunal Rules, 1958, made under Section 111-A of the Act, an application for claim is to be made in Form A (under Rule 3). The owner, the driver and the insurer have to be impleaded as 'opposite parties' and notice has to be issued to them under Rule 7. If the opposite party does not appear, the proceedings can be ex pane. The opposite party can file written statement and produce evidence. Similar provisions are made in the Rules made, for instance, in Delhi, Bihar and Bengal.
(29) As already pointed out, in its award the Tribunal determines not only the person or persons to whom compensation shall be paid, but also the amount of compensation to which he or they are entitled. Who is to pay the amount so determined? The insurer is to pay only that much which is separately specified as payable by him. If the insurer is liable to pay the entire amount, then it is the end of the matter. But if the amount specified, which shall be paid by the insurer, is less than the amount of compensation so determined, then necessarily it is the insured who has to pay the balance and no one else conceivably. When the Tribunal is required to determine the amount of compensation, it is not possible to think that the legislature wanted such determination in vacuo, that is, without contemplating who will pay. And, if the only purpose was to determine such compensation as was payable by the insurer, then the words 'determining the amount of compensation which appears to it to be just' in Section 110-B would be otiose, because then the only requirements of the award would have been (1) to specify the person or persons to whom compensation shall be paid, and (2) to specify the amount which shall be paid by the insurer.
19. A Full Bench of Kerala High Court in case of New India Assurance Co. Ltd. v. Celine 1993 ACJ 371 (Kerala), referring to the decisions of Capt. Itbar Singh, 1958-65 ACJ 1 (SC) and Mangilal's case, 1970 ACJ 86 (MP) and decisions of other High Courts, and referring to Sections 95, 96(2) and 110-C (2-A) and scheme of the Act, has held that an insurance company can take advantage of the 'reservation clause' which is in the nature of assignment by the insured of his rights against the third party and the insurer can defend any action filed by the third party by conducting the same in its own name. In such a case, the insurer could raise all defences which the insured could raise and obviously, the insurer is not confined to the limits of defences mentioned in Section 96(2) of the Act. While dealing point No. 2, on the arguments advanced under Section 110-C (2-A), the court held in para 20 thus:
(20) Even otherwise, Section 110-C (2-A), which deals with the 'procedure' before the Tribunal, can only be treated as an enabling provision. In our view, it does not exhaust all the situations in which the insurer can raise defences open to the insured against the third party. The provisions of Section 110-C (2-A) may, however, govern a case where there is no reservation clause or assignment of the rights of the insured in favour of the insurer, but otherwise, it cannot help the respondents. We hold, therefore, that even if there is no collusion between the insured and the third party or even if the insured has not remained ex pane the insurer can raise all defences open to the insured against the third party, provided there is a reservation or assignment clause by the insured in favour of the insurer....
20. A Full Bench of Gauhati High Court in the case of United India Insurance Co. Ltd. v. Member, Motor Accidents Claims Tribunal 1993 ACJ 828 (Gauhati), considered the provisions of Sections 149(2) and 170 of the new Act, which are corresponding to Sections 96(2) and 110-C (2-A) of the old Act, wherein the judgment was delivered by U.L. Bhat, C.J., the court on comparing the corresponding provisions in the two Acts observed that provisions are more or less similar and that the right of appeal of the insurance company is restricted to raise contentions enumerated in Section 149(2) unless, of course, the Tribunal has passed an order under Section 170 of the Act, or unless the insurer has reserved in the policy the right to contest the claim on behalf of the insured and observed in para 15 thus:
(15) The above provisions enable the Tribunal under certain circumstances and for reasons to be recorded in writing to direct that the insurer shall be impleaded as a party to a proceeding. Thereupon the insurer shall have the right to contest the claim on all or any of the grounds that are available to the insured. The circumstances are collusion between the claimants and the insured and failure of the insured to contest the claim. It is unnecessary to take a hyper-technical view of Section 170 and hold that the provision can be invoked only where the insurer was not originally a party and the Tribunal has not already issued notice to the insurer. Section 170 contemplates two matters, namely, impleadment of the insurer and the right of the insurer to raise grounds available to the insured. Even where notice has already been issued to the insurer or the insurer was already a party, the Tribunal can invoke Section 170 and thereupon the insurer will be able to raise defences contemplated therein. This provision is intended to prevent the abuse of the process of the Tribunal in appropriate cases. It is a special device incorporated by the legislature to meet specific contingencies. In our opinion, this provision cannot help the court to come to the conclusion that in the appellate forum the insurer has an unrestricted right to raise defences.
21. In view of the above, the position of law is now well settled that 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.
22. The decisions relied by Mr. Singhal do not deal with the question of reservation clause in the policy, hence are distinguishable and have no application to the present case.
23. As we have taken the view that because of the reservation clause, the insurance company can defend the action without prejudice to the provisions contained in Sub-section (2) of Section 149 on all or any of the other grounds that are available to the person against whom the claim has been made, therefore, the Tribunal was right in granting the permission to insurance company to cross-examine the witnesses irrespective of the fact that the owner and insurer were represented.
24. As a result of the above, no interference is called for in the order impugned and the revision has no force and is dismissed with no order as to costs.