AMITAVA LALA, J. - (1.)THIS appeal has been preferred by the Insurance Company challenging the judgment and order dated 7th January, 2006 passed by the concerned Motor Accident Claims Tribunal, Etawah, in spite of rejection of the application under Section 170 of theMotor Vehicles Act, 1988.
(2.)WE have considered the issue of right of appeal in our judgment in Oriental Insurance Company Limited v. Smt. Manju and others, 2007 (67) A.L.R. 718. following the Supreme Court in National Insurance Co. Ltd., Chandigarh v. Nicolleta Rohtagi and others, A.I.R. 2002 S. C. 3350 : 2003 (3) T.A.C. 203. Therefore, no new case is available therein excepting very few which are discussed herein.
Mr. Arvind Kumar, learned Counsel appearing in support of the appellant, contended before this Court that the order which has been passed rejecting the application on 20th September, 2004 is falicious in nature. Either the application will be rejected or the same will be allowed. There is no scope of holding that the same is not maintainable as Insurance Company has already examined the witnesses. He further contended that the original claim petition was filed both under Section 163 -A and under Section 166 of the Motor Vehicles Act, 1988, therefore, the same is required to be dismissed as a matter of course. It is a question of maintainability of the claim petition, therefore, the Insurance Company has a right independent of the rejection of the application under Section 170 of the Act. He relied upon the judgment of the Division Bench of this Court in F.A.F.O. No. 513 of 2007. National Insurance Company Limited v. S.L. Sharma dated 19th March, 2008.

(3.)MR . R.K. Porwal, learned Counsel appearing for the claimants contended before this Court that Section 170 of the Act is provided for specific purpose. Such type of application cannot be made mechanically. In the instant case, the application was made after examination of the witness is over. Therefore, the Court held that there is no necessity of permitting Section 170 to the Insurance Company to contest the claim. He has further said that there is existing right of an Insurance Company to examine any witness provided the cause falls under Section 149 (2) of the Act but not beyond the same. The Tribunal considered this part and only thereafter the application was rejected.