B.L Hansaria, J.:— Law embodies and reflects will of the people. It takes care of the felt necessities of time. It eschews injustice and unjustness, and seeks to promote justice. Fair play in action has to be ensured by it. One cannot, however advance the cause of justice by shutting the door of justice for one who has every reason to feel aggrieved at the order passed against him because of which he approaches a court to seek redress. A right without a remedy is like a writ in water. We have to remember the maxim “ubi jus ebi remedium.”

2. These opening thoughts focus the controversy with which we are seized in this appeals. A common question relating to maintainability of the appeals has been raised at the threshold and we propose to dispose of the same by this common judgment. For disposing of the preliminary objection, it is enough to state that an award of Rs. 4,50,343.00 has been passed in favour of the respondent in MA (F) 62 of 1976, and of Rs. 2,50,000/- in favour of the respondents in two other cases. This has been done by the learned Members, Motor Accident Claims Tribunal after being satisfied that the vehicle in question which had caused the accident (an Ambassador car bearing registration No. ASZ 2256 was driven negligently because of which it dashed against a scooter driven by Shri A.K Bordoloi, who is respondent in MA(F) 62/76, in the pillion of which was late Rajendra Hazarika, whose legal representatives are the respondent in two other cases. The accident saw various injuries on the person of Shri Bordoloi, but it took the life of Rajendra Hazarika. Shri Bordoloi claimed a sum of Rs. 18,22,000/- as compensation. The legal representative of Shri Hazarika came forward demanding a total sum of Rs. 6,53,000/- on account of loss caused to them. The learned Tribunal has ordered the aforesaid sums as compensation and has ordered the in surer to pay the entire amount. Feeling aggrieved, the insurer alongwith the owner has filed the present appeals. A preliminary objection has been raised by Shri Bhattacharjee appearing for the respondents relating to the maintainability of the appeals. The submission is that these joint appeals on behalf of the owner and insurer of the vehicles do not lie inasmuch as the owner cannot be said to be a “person aggrieved” because nothing has been ordered to be paid by him and the insurer cannot challenge the award on the grounds, inter alia, of negligence of the driver of the offending vehicle and quantum of compensation which are the two points urged in the main in the memoranda of appeal. To support his submissions Shri Bhattacharjee has referred us to Kantilal & Bros v. Ramaraju, AIR 1979 Calcutta 152; United India Fire & General Insurance Company Limited v. Lakshmi, 1983 TAC 249 (J & K); United India Fire and General Insurance Company Ltd. v. Gulabchand, 1985 ACJ 245 (Alld); Hem Chandra v. Hari Mohan, 1935 (2) GLR 297 (Gauhati); Anand???an v. Nurul Hague 1986 (2) GLR 131 (Gauhati); and New India Assurance Company v. Shankutalabai, 1981 ACJ 224 (MP).

3. Let us first see whether the owner could have preferred the present appeals. It is apparent that he could have done so if he could be regarded as a person aggrieved. This aspect of the matter has been gone into in detail in Kantilal (supra). In finding out the meaning of this expression, Kantilal has relied on two important decisions of the Supreme Court. These are Adi Pherozshah v. H.M Seervai, (1970) 2 SCC 484 : (1970) 2 SCC 484 : AIR 1971 SC 395 and Bar Council of Maharashtra v. M.V Deboldar, (1975) 2 SCC 702 : (1975) 2 SCC 702 : AIR 1975 SC 2092. After referring to these decisions, it has been held in Kantilal that to be a person aggievcd the grievance of the person concerned must be genuine and the same must affect his interest prejudicially. As the owner has not been saddled with any liability in these cases, he cannot have a real and genuine grievance relating to the award made by the learned Tribunal. We are, therefore, satisfied that the insured could not prefer these appeals inasmuch as section 110-D of the Motor Vehicles Act, for short the Act, has conferred the right of preferring appeal to a “person aggrieved” by an award of a Claims Tribunal.

4. To persuade us to hold that even an insured would be a person aggrieved in such a case, our attention has been invited by Shri Guha, appearing for the appellants, to the insurance policy which contains a term relating to “no claim discount” which would be available to an insured if no claim at all has been preferred against the insurer relating to the insured vehicle. As in the present case, this discount would not be available, it has been urged that the insured has also to be regarded as a person aggrieved. We have not felt inclined to regard the insured as a person aggrieved within the meaning of section. 110-D of the Act because of the above inasmuch as his grievance even in such a case cannot be said to be against the award of the Claims Tribunal.

5. Being satisfied that the owner could not have preferred appeal as he cannot be regarded as a person aggrieved, let us: see whether these appeals could have been filed by the insurer contesting, inter alia the quantum of the award as well as the fact that the offending vehicle was driven negligently. In the aforesaid decisions cited by Shri Bhattacharjee it has been held that in so far as the insurer is concerned, the defences or the grounds which can be urged by it can be only those of which mention has been made in section 96(2) of the Act. As the question of quantum and/or negligence of the driver is not a ground mentioned in section 96(2) of the Act, it has been urged that the appeals filed by the insurer also has to be regarded as non-maintainable in law.

6. A perusal of the aforesaid decisions shows that reliance has been placed in some of them on British India General Insurance Company Limited v. Itbar Singh, AIR 1959 SC 1331. This is the only case of the final Court which has been brought to our notice in this connection. It would be, therefore, in the fitness of things if the ratio of this case is first adverted to. The appeal before the Supreme Court arose out of two-suits filed against the owners of the motor cars for recovery of damages suffered by the plaintiffs as a result of the negligent driving of the cars. The insurers were subsequently added as defendants to the suit under the provisions of section 96(2) of the Act. On being added as defendants, the insurer filed written statement, taking defences other than those mentioned in section 96(2). A contention was advanced by the plaintiffs that the insurers could defend the action only on the grounds mentioned in sub-section (2) and no other. In deciding this aspect of the matter, the Apex Court pointed out that an insurer had no right, apart from the one conferred by the statute, to be made a party to the action by the injured against the insured. It was pointed out that section 96(2) gave the insurer a right to be made a party to the suit and to defend it. It was, therefore, pointed out that the content of the right must necessarily depend on the provisions of the statute. The question which was posed for answer was “what are the defences that sub-s. (2) makes available to an, insurer?”. In this regard it was stated as below in para 6:—

“Now the language of sub-s. (2) seems to us to be perfectly plain and to admit of no doubt or confusion. It is that an insurer to whom the requisite notice of the action has been given” shall be entitled to be made a party thereto and to defend the action on any of the following. grounds namely”, after which comes the enumeration of the grounds. It would follow that an insurer is entitled to defend on any of the grounds enumerated and no other. If it were not so, then of course no grounds need have been enumerated. When the grounds of defence have been specified, they cannot be added to. To do that would be adding words to the statute.

7. Reference was then made to section 96(6) of the Act which has stated that no insurer to whom the notice of the action has been given shall be entitled to avoid liability under sub-section (1) “otherwise than in the manner provided for in sub-section (2)”. Following the combined reading of these subsections, it was held in para 8 that a insurer made a defendant to an action is not entitled to take any defence which is sot specified in it. It is worth pointing out that the decision has dealt with the defences available to an insurer in the Court of first instance, it has nothing to do with the grounds available in an appellate forum. And so, we feel that we would not be justified in applying the ratio of this judgment to defences available in appeal, when the complexion of the two proceedings are different for the reason, inter alia, that the owner cannot always make a grievance before the appellate forum for reasons aleady noted.

8. By relying on It bar Singh, it has, however, been held in a number of pronouncements of the different High Courts of this country that in an appeal preferred by an insurer it cannot travel beyond the defences mentioned in section 96(2) of the Act. It would be burdening the judgment unncessarily if we have to discuss the ratio of various decisions which have been brought, or come, to our notice; instead, we propose to confine ourselves to deal in the main with three Full Bench decisions rendered by three different High Courts of the country. The first is that of Madhya Pradesh High Court in Mangilal v. Parasram, 1970 ACJ 86. As per this decision the insurer may resist the claim against it in two ways: (1) it is not liable although the insured may be liable; and (2) it is not liable because the insured is not liable. Under the first head the insurer is entitled to escape the liability by making the defences mentioned in sub-section 96(2) of the Act. This apart, the insurer can plead that there was no negligence on the part of the insured to say that the insured incurred no liability. This could, however, be done as of right as per this decision provided such a right is reserved in the policy. It was further observed that all that section 96 does is that it debars the insurer from taking any defence other than those enumerated in it to show-that the insurer is not liable although the insured has incurred liability. This was regarded as plain enough and found full support according to the Full Bench from what has been observed by the Supreme Court in Itbar Singh (supra). The following observations of this case were quoted in this connection:—

“The insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the insured 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 insured and this he has full liberty to do”.

9. We say with respect that what has been stated by the Supreme Court in Itbar Singh shall not be applicable when we are examining the right of an insurer in an appellate foum before which the insured cannot be a party. The complexion of the matter would be entirely different according to us when the insured is also before the Court/Tribunal to put forward all the defences that are availble in such cases inasmuch as in such a situation the question, inter alia, of the driver and/or quantum would not go unassailed. The mere fact that the insurer could widen the defences available to it by making provision for the same in the policy has not been regarded as sufficient by us in this regard inasmuch as we feel that the protection of the law itself, which expresses the will of the people, should be available in such a case instead of the matter being left to bilateral agreement between the parties, because the ramifications and implications of the point at is???ue are not confined to two individuals but affect a significant segment of the society.

10. At this stage we may advert to the amendment of the Act in 1969 which inserted section 110-C (2-A) in the statute. As is well-known, this provision has provided that on the conditions mentioned in the section being satisfied, the insurer, who may be liable in respect of the claim, is required to be impleaded as a party to the proceeding for reasons to be recorded in writing, and the insurer so impleaded shall thereupon have 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. It cannot be presumed that having come to the rescue of the insured at the trial stage, the legislature would have left it in lurch by not trying to protect its interest once an award is passed against it. The exercise of amendment would not bear full fruit if on the face of an adverse award the insurer would be powerless to take the matter before a higher forum. The legislature must have been aware of the fact that an insurer may be ultimately made liable to satisfy an award because of the insurance coverage. In such a situation, the insurer has to come forward to file an appeal and challenge the award in it vital respects. To deny this to an insurer would be, to deny protection of law to it. From section 110-D of the Act, it is apparent that the law-makers did visualise filing of appeal by aggrieved person. This provision cannot be rendered otiose or an exercise in futility by saying that an insured cannot take advantage of it as he is not a person aggrieved and the insurer, though an aggrieved person, cannot challenge the award in its vital parts regarding accrual of liability to pay compensation and the quantum of compensation, howsoever arbitrary and unjustified the findings might be. We would refuse to be parties to such injustice unless we are really compelled to be silent spectators; fortunately, the law does not require us to be fence sitters. The dire necessity of the situation demands necessity of hearing a person who alone can really make a grievance about the passing of award, slamming of the door of this Court to prohibit entry of the insurer who has been saddled with a liability of more than Rs. 7 lakhs in these cases would definitely be unjust. Fair play in action does demand a fair hearing of the insurer, whose rights to file appeal would really provide no remedy if he is denied the opportunity to assail the findings relating, inter alia, to the negligence of the driver and quantum of compensation.

11. Reference may now be made to the Full Bench decision of the Orissa High Court in National Insurance Company v. Magikhia Das, 1976 ACJ 239. This decision has also relied on the judgment of the Supreme Court in Itbar Singh. In coming to its conclusion that the restriction under section 96(2) of the Act apply not only in the proceedings before the Tribunal but to an appeal before the High Court also, it was stated that the consensus of judicial opinion has been to the effect that the insurer could resist the claim only on the grounds mentioned in section 96(2). It was, however, noted that a different view has been taken by the Madras High Court in Gopalakrishnan v. Sankarnarayanan, 1969 ACJ 34 which decision has been pressed into service by Shri Guha also. We say with respect that the reasoning given in Gopalakrishnan has not convinced us also to hold that an insurer could travel beyond defence mentioned in section 96(2) of the Act even before the Claims Tribunal. The Madras High Court, however, took the view because of the fact that section 110 had come to be introduced in the Act several years after section 96 had found place in the statute, and that section 96 has come to be introduced to enforce the duty of the insurer to satisfy the judgment against person insured in respect of third-party risk by giving them notice after the judgment was obtained by third-party against the insured person in a suit. As against this, in a proceeding before a Claims Tribunal the insurer is a party. In our considered view the reason that before a Claims Tribunal the insurer is a party whereas section 96 contemplates giving of notice to the insurer after judgment (of a civil court) is not sufficient to hold that section 96 is not attracted in a proceeding before a Claims Tribunal. This distinction is without a difference. The important aspect of the matter is that the insurer is informed about the proceeding relating to claim of compensation, and in a suit as well the insurer shall be brought to the Court in most cases before the judgment is pronounced, as otherwise the suit would start almost de novo after the appearance of the insurer to enable it to substantiate its case that by virtue of what has been stated in section 96(2) of the Act it is not bound to indemnify the insured.

12. We may now refer to the Full Bench decision of the Jammu & Kashmir High Court in United India Fire and General Insurance Co. Ltd. v. Lakshmi S. Ganju, 1983 TAC 249. It has been observed in this judgment that the appeal being a creation of the statute, the same has to be governed by the provisions made in the statute relating to the grounds which are available to the appellant. This legal proposition is definitely right. But then the question is whether the grounds mentioned in section 96(2) would apply before an appellate forum also. Section 96(2) in terms has not dealt with the right of an insurer in an appellate forum inasmuch as from the provision of this section it is clear that it has direct application in a proceeding before the Claims Tribunal or a civil court of first instance. This is apparent from the fact that the section requires a notice of the proceedings to be given to the insurer and then states that an insurer to whom the notice of bringing of any action is given, shall be entitled to be made a party thereto and to defend the action on any of the grounds mentioned in the section. These provisions can have no application when the insurer itself comes forward to file an appeal. The Full Bench, however, made the restricted defences mentioned in section 96(2) of the Act applicable to an appeal also by stating that the appeal is a re-hearing of the original petition and by further observing that it is elementary ???hat in an appeal a party cannot be allowed to raise a defence which was not available in the forum below. We say with respect that this proposition may not have an universal application. Take the cases at hand. Here the necessity of the insurer taking all the grounds that are available to the person-against whom a claim has been made did not originally arise inasmuch as the insured was before the Court who had neither failed to contest the claim nor was there anything to show that there was any collusion between him and the claimants. In such a situation, the interest of the insurer is fully protected by the grounds taken by the insured. But then if all the available grounds are not granted to an insurer when it prefers an appeal, the award in its most vital aspect would go unchallenged inasmuch as the insured being not a person aggrieved in many cases for reasons already alluded would not be entitled to prefer any appeal. We would hesitate to be a party to such an interpretation of section 96(2) of the Act.

13. The Full Bench further stated that the insurer would not be a person aggrieved in so far as the quantum of award or negligence of the driver is concerned because these aspects cannot be agitated by it before the Claims Tribunal in view of what has been stated in section 96(2) of the Act. This reason does not sound very convincing if we may say so with respect. If in an award passed by the Claims Tribunal, the insurer is made liable to pay the entire or part of the amount the insurer has to be regarded as a person aggrieved. Any other view would be too technical an interpretation of the expression “person aggrieved”.

14. Before adverting to two decisions of this Court, we may say something about three more decisions rendered by three other High Courts. The first is Kantilal, AIR 1979 Calcutta 152. Here, after referring to section 96 of the Act, it was opined that the grounds available in appeal are also limited to the defences mentioned in this sub section. But, as already pointed out, section 96 has in terms not dealt with the right available with an appellate forum. Secondly, we may refer to Gulabchand, 1985 ACJ 145 (Alld). A reading of this judgment by a Division Bench of Allahabad High Court shows that it relied on Itbar Singh (supra) to come to the finding that the grounds on which an award can be challenged by an insurer in an appeal are those mentioned in section 96(2) of the Act. But as already noted, this conclusion cannot be drawn from what has been laid down in Itbar Singh. Finally, we may note Shakuntalabai, 1987 ACJ 224. In this decision, the learned single Judge of Madhya Pradesh High Court opined after referring to Gulabchand (supra) that an insurer can be heard in an appeal only within the statutory parameters of section 96(2). As we have not felt inclined in agreeing with Gulabchand, as stated above we would respectfully differ with the decision rendered in Shakuntalabai as well.

15. Now, we may deal with two decisions of this Court. As to Hem Chandra, 1985 (2) GLR 297, it is enough to state that on this aspect of the case there was a concession of the learned counsel appearing for the insurer by agreeing that an insurer cannot travel beyond the defences mentioned in section 96(2) of the Act. (See para 3). In so far as Anand Rant, 1986 (2) GLR 131 is concerned, it may by stated that the learned single Judge has relied on Kantilal (supra) in taking the view he did. As we have not agreed with Kantilal or for that matter with other decisions which have held that in an appeal the insurer is bound hands and feet with the restriction imposed by section 96(2) of the Act for reasons already given, we would respectfully disagree with the view expressed in Ananda Ram too in this regard. In view of all that has been stated above, we would hold that in the present case the insurer has to be regarded as a person aggrieved within the meaning of 110-D of the Act and it can assail the award on all the grounds that are available to an insured. A question however arises whether the appeal having been filed by the insurer in the company of insured, who has no right of appeal because he is not a person aggrieved, whether the appeal would be maintainable. In this connection Shri Guha has referred us to Kantilal (supra) and Motor Owners Insurance Company v. Hrishikesh, AIR 1975 Calcutta 218. It has been observed in these cases that if an appeal is maintainable at the behest of one, it would not he incompetent and could be heard even if the other appellant might not have the right to file appeal. Shri Bhattacharjee has not disputed this proposition.

16. In the result, we hold that the present appeals are maintainable. Let the appeals be fixed for hearing on merits. May we state that delivery of the judgment has been delayed, inter alia because one of us (Sangma, J.) was away from the principal seat for some time to hold Court at Agartala.