Amitava Lala, J. - (1.) The issue is when the claim petition is disposed of by the Tribunal keeping the application under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act') pending, the same will be construed as implied permission by the Tribunal to the insurance company and, if at all can the appeal be disposed of on merit.
(2.) It is pertinent to mention here that in New India Assurance Company Ltd. v. Dr. Prem Singh Bhadauria and another, 2007(7) ADJ 468, this Bench has decided the issue by holding a view that no one can be allowed to draw any favourable inference by saying that there is an implied permission in such circumstances. No application either interim or interlocutory or miscellaneous in nature can be treated to be pending when the main cause by way of suit or proceeding is disposed of either way. Non-recording of any such order in any of such applications is a bona fide mistake. No scope of appeal can be said to be available for alleged pendency. In other words, pendency can be couched in both ways. It can be said to be implied permission or implied rejection. According to us, when an affirmative order is passed ignoring or refusing insurance companies' plea particularly in absence of statutory defence under Section 149(2)of the Act,implied permission could not have been couched. Ratio of such judgment has been followed by this Bench in the subsequent judgments inclusive of the judgment reported in New India Assurance Co. Ltd. v. Smt. Padma Devi and others, 2008(8) ADJ591 (DB).
(3.) According to us, the appeal is a creature of statute. Therefore, unless statute prescribes to prefer the appeal, an insurer, as a matter of course, cannot prefer the appeal. Insurers have limited independent right to prefer the appeal unless there is a clear violation of Section 149 (2) of the Act. However, insurance companies are not remediless for their relief.;