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Pesumal Dhanmal Vs. New Asiatic Insurance Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMumbai High Court
Decided On
Case NumberAppeal Nos. 10 and 11 of 1962
Judge
Reported inAIR1964Bom121; (1963)65BOMLR705; ILR1964Bom194
ActsMotor Vehicles Act, 1939 - Sections 64, 94, 95, 95(1), 95(4), 95(5), 96, 96(1), 96(2) and 96(3); Road Traffic Act, 1930 - Sections 35, 36, 36(1) and 38
AppellantPesumal Dhanmal
RespondentNew Asiatic Insurance Co. Ltd. and ors.
Appellant AdvocateM.R. Parpia, Adv.
Respondent AdvocateH.G. Advani, ;S.J. Sorabji and ;D.M. Rege, Advs.
Excerpt:
.....to insurers of car--insurance cover indemnifying driver if not entitled to indemnity under other policy--clause in policy that insurers not relieved of their liability if liable under section 96-defendant insured with other insurers and policy containing vehicle extension clause--whether notice liable to be discharged.;the plaintiff filed a suit against the defendant for damages for injuries suffered by him as a result of rash and negligent driving of a motor car by the defendant. the defendant had driven the car with the consent and knowledge of the owner of the car who was insured in respect of the car. under the driver extension clause contained in the insurance policy the insurance cover was extended to any driver who was not the owner of the car and indemnified him if he was..........not cover the defendant because of the proviso contained in clause 3 which was a driver extension clause. clause 3 reads thus:--'in terms of and subject to the limitations of the indemnity which is granted by this section to the insured the company will indemnity any driver who is driving the motor car on the insured's order or with his permission provided that such driver (a) is not entitled to indemnity under any other policy'.we may call this proviso the avoidance clause. the insurer respondent places reliance on this clause, cause a extends the insurance cover to any driver who is not the owner of we car and indemnities him if he is driving the motor car on the order of the insured or with his permission provided that he is not entitled to indemnity under any other policy. clause 4.....
Judgment:

Patel, J.

1. These two appeals Nos. 10 and 11 of 1962, arise out of two suits Nos. 70 and 71 of 1959 filed by the nears of one Daooji Radhamohan Meherotra and by one Murli Dholandas respectively for damages in respect of a car accident which resulted in the death of Daooji and serious injury to Murli while the car was Winy driven by the defendant Pesumal.

2. The short facts are that both the deceased Meherotra and Murli Dholandas accompanied the defendant on 13th March 1958 on a motor drive front Bombay to Poona by a motor ear belonging to one Shamdas Narnumal Asvani. The defendant was in charge of the car and he was driving it with the consent and knowledge of Shamdas Narnumal Asvani. The plaintiffs allege that he was driving it rashly and negligently and while doing so, between Mile stones 93 and 94 there was a collision between the car and motor truck bearing No. BYT 2216 as a result of which Meherotra died and Murli Dholandas stitfered severe injuries. The heirs of Meherctra, and the injured Murli Dholandas have filed these two suits respectively and claimed damages from the defendant.

3. The Plaintiffs got a notice issued to the new Asiatic Insurance Co. Ltd., under Section 96 (1) of the Motor Vehicles Act since this company had insured Aswani in respect of the car which was being driven by thee defendant. After the notice was received, the New Asiatic Insurance Co. took out a Chamber Summons for the discharge of the notice. It came before Mr. justice Tarkunde who agreed with its contentions and discharged the notice. The Defendant Pesumal has appealed against the order of the learned Judge.

4. The contention urged on behalf of the insurer was that the insurance policy did not cover the defendant because of the proviso contained in clause 3 which was a driver extension clause. Clause 3 reads thus:--

'In terms of and subject to the limitations of the indemnity which is granted by this section to the insured the company will indemnity any driver who is driving the Motor Car on the Insured's order or with his permission provided that such Driver (a) is not entitled TO indemnity under any other policy'.

We may call this proviso the avoidance clause. The insurer respondent places reliance on this clause, cause a extends the insurance cover to any driver who is not the owner of We car and indemnities him if he is driving the motor car on the order of the Insured or with his permission provided that he is not entitled to indemnity under any other policy. Clause 4 is the vehicle extension clause which indemnifies the Insured, in the present case the owner of the car which was involved in the accident, which he drove personally a private Motor Car not belonging to him and not hired to hint under a Hire Purchase Agreement. At the relevant time the defendant himself was insured in respect of a car owned by him with the Indian trade and General insurance Co. Ltd. whose policy also contained similar vehicle extension clause. because of the indemnify provided by the vehicle extension clause in his policy in respect of his own vehicle with Indian Trade and General insurance Co. Ltd. the respondent plausibly contended that it was discharged from all liability under clause 3 of the policy issued by it. the learned Judge relied upon the proviso contained in Clause 3 of that policy and held that as the defendant was insured by the Indian Trade and General insurance Co. By its Clause 4 in respect of a car not belonging to him, the respondent Co., i. e. the New Asiatic insurance Co. Ltd.,' was relieved of its liability to indemnity the defendant.

5. It may, however be noted that the attention of the learned judge does not seem to have keen invited to one important clause in the policy, that clause is contained in Section III of the policy at p. 70 of the Paper BOOK in Appeal No. 10 of 1962 and roads as follows:--

'Nothing in this Policy or any endorsement hereon shall affect the right of any person indemnified by this Policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act, 1939, Section 96.

But the insured shall repay to we Company an sums paid by the Company which the Company would not have been liable to pay but for the said provisions'.

We may advisedly call this clause the non-avoidance clause it is clear from this clause that if under Section 96 of the Motor Vehicles Act the respondent company is liable to the plaintiffs then nothing contained in the policy will relieve it of its liability. The question, therefore, whether the proviso in Clause 3 of the policy is void is irrelevant. (sic) we came to the conclusion that the respondent-company is liable under Section 96.

6. In order to consider the liability of We insurance Companies, one has to consider the scheme of Chapter VIII of the Motor Vehicles Act and particularly that of Sections 94, 95 and 96. Heading of the Chapter is . 'insurance of Motor Vehicles'. Section 94 makes it offence for any person who uses a vehicle except as a passenger or who causes or allows any other person to use a motor vehicle in a public place unless were is in force in relation to the use of the vehicle by that person or that either person a policy of insurance which complies with the requirements of that Chapter. By the very language the section requires that there must be an insurance policy m relation to the vehicle, which is being used and not that a driver is insured against claims for damages in respect or any vehicle--whether used or unused. Section 95 which lays down the requirements of the policy, by Clause (b) of Sub-section (1), requires that the policy must insure the person or classes of persons against any liability which may fie incurred by them in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle in a public place.

Again, the emphasis is on the use of the vehicle and not on the use of any vehicle. Sub-section (2) provides the nature of the liability that is required to be covered by the Insurance Policy. Sub-Section (5) of Section 95 creates an absolute liability in the insurer to indemnify me persons insured in respect of the liability covered by the policy notwithstanding anything contained anywhere in any law. Section 96 makes the insurer liable on judgment as if he were a judgment-debtor, if recovered against the insured or against the class of persons insured by the policy in respect of liability covered by Section 95 (1) (b) on certain conditions being satisfied. Sub-section (2) of Section 96 lays flown the conditions for such liability and also enumerates the defences which are open to the insurer to take if it brings itself on record as a defendant in pursuance of a notice to be issued under file earlier part of Sub-section (2).

7. Reading the sections together it is clear that the insurance is required by Section 95 (1) to be in respect of the vehicle which is being used and while driving which the accident is committed. Mere insurance of the driver on a vehicle without reference to the use of any particular vehicle against claims made against him by reason of an accident that he may commit does not, in our opinion, make the insurer liable directly to the person who has suffered the injury. The liability of the insurer arises only if it has insured the driver in respect of the vehicle by the use or which the accident is committee. That being so, inasmuch as the policy issued by the Indian. Trade and General Insurance Co. Ltd. by Clause (4) insured the defendant not in respect of the vehicle which was involved in the accident But in respect of another vehicle it would not be covered by Section 95 (1) and consequently by Section 96 (1), and that company would not be affected by the notice issued under Sub-section (2) of Section 96. The statutory liability under Section 96, in our opinion, attaches only to the respondent company.

Thus, the respondent Company being liable under Section 96 the non-avoidance clause applies notwithstanding the avoidance clause contained in the proviso to clause 3 of the policy, it is possible that as between the respondent and the appellant-defendant, the latter may be liable to repay any sum which the respondent Company may be required to pay to the plaintiffs in these suits. That, however, is not a matter to be decided in the present proceeding and we do not express any opinion on that question.

8. Even apart from this non-avoidance clause, Section 96 (3) is a complete answer to that respondent Company's challenge to the notice Section 98 (3) provides :

'Where a certificate of insurance has been issued Sub-section (4) of Section 95 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95, be of no effect;'

It is clear from the wording of this clause that any condition restricting or avoiding the statutory liability of the insurer as provided in Clause (b) of Sub-section (1) of Section 95 which is not one of the conditions mentioned in Clause (b) of Section 96 (2) must be regarded as ineffective for the purposes of the Act, though it may be pending between the company and the persons msureo. Now, THe only conditions mentioned in Clause (b) of Sub-section (2) of Section 95 are three: (i) that which excludes the use of the vehicle for hire or reward if the policy does not cover the risk and use for organised racing or speed testing; in the case of public service a purpose not permitted by the permit; (ii) that which excludes driving by a named person or persons or by any person who is not duly licences or by a disqualified person during the period of disqualification; (iii) that which excludes liability for injury which is caused by or is contributed to by conditions of war, plot or civil commotion. It cannot be gainsaid that the avoidance clause in the policy in the present cases is not covered by any of these conditions aid that is not even the contention of the respondent Company. Since that clause seeks to avoid a liability covered by Section 95 (1) (b) it is ineffective, so for as the plaintiffs are concerned.

9. Mr. Advani, however, argued that Sub-section (3) of Section 96 avoided such conditions as were contrary to those contained in Section 96 (2) (b) and that the clause with which we are concerned was not in any manner in conflict with any of those conditions and that, therefore, Sub-section (3) of Section 96 could not apply. We are afraid, we cannot accept this condition for the obvious reason that the clause in question provides a condition 'other than those in Clause (b) of Sub-section (2) of Section 96.' In order to accept the argument we will have to substitute different words for the words actually used in the provision for which there is no justification.

10. it was then contended that the proviso created a situation similar to the one where a person was not insured at all and, therefore the respondent was not liable. According to the learned Counsel, it is not compulsory under Section 94 of Section 95 for the Insurance Company to insure a driver of a vehicle while insuring the motor car and its owner and the effect of the avoidance clause in Clause(3) is much the same as if the Insurance Company had not agreed to indemnify the driver in which case, it is argued, no notice could have been sent to the Insurance Company. It seems the argument found favour with the learned Judge.

We may, however, answer it by an analogy that no Insurance Company is bound to insure any owner of a motor vehicle. If an owner drives a motor vehicle which is not insured, he is liable to penalty out in the nature of things, no insurance company can be made name. That, however, is not the question. The question is, having issued the policy, whether the respondent is entitled to impose any condition in the policy which in any manner restricts the cover of the insurance, and if it cannot be permitted to do so in the case of the owner of the car, it cannot certainly be asserted that it can be permitted to do so in the case of any other class of drivers In respect of whom the policy covers the risk in both cases by reason of Section 96 (3).

11. The learned Judge says in his judgment; 'If the defendant had been one of the persons insured by the Policy issued by the Petitioners........Subsection (3) of Section 96 might have prevented them from having recourse to those conditions .....' With respect, it may Be that the Policy was issued to Aswani put as a driver of the vehicle, the defendant has been insured by the respondent. If the defendant had not got a car of his own and did not hold an indemnity in respect OI such a car it could not have been said that the respondent had not insured the defendant. The section itself Distinguishes between the 'person to whom policy is issued' and 'persons insured' and the defendant falls in the latter class. The learned Judge further on says that Section 95 docs not require that the policy must extend to other drivers. It must be noted that Section 94 refers to the persons to be insured and Section 95 refers to the liability required to be covered. Both enable the insurer to extend the Indemnity to other driver and if the indemnity Is so extended the case falls within Section 96 (1) and me Company becomes liable and Section 95(1) (b) is not relevant except for determining whether the indemnity under the policy falls' within We ambit of that section.

The contention that the defences available to the insurer control the terms of the policy is also unsound. It dose not affect the question of liability. Under Section 96 (3) requirements for its applicability are that (1) a certificate must have been issued to the person who has effected the insurance, and (2) restrictions of the insurance of the persons insured other than those in Clause (b) of Sub-section (2) of Section 96. As we nave pointed out, the defendant is one of the class of persons insured and avoidance clause being not one of the conditions in Clause (b) of Section 96 (2) Section 96 (3) applies.

12. It was strenuously urged by Mr. Advani on behalf of his client that the scheme of Sections 94, 95 and 96 was not to require the insurance of any particular class of persons in connection with the vehicle causing the accident but if there was an insurance which indemnified either the owner or the driver against liability irrespective of the vehicle, then the conditions of the section were satisfied. To accept this argument would require our substituting for the word 'the' appearing in me words 'use of the vehicle in a public place' in clause (b) of Section 95 (1) the word 'A' or 'any we nave not been pointed out either from the scheme or the Chapter or any part of the Motor vehicles Act anything which could persuade is to do such violence to the language of the statute. Reasonably and fairly read, Sections 94 and 95 mean that the owner and the person who drives the car have to be insured in respect of the vehicle by the use of which accident or death occurs. We cannot, therefore, be justified in reading the section as contended for by Advani.

13. Mr. Advani relied upon the view taken by the English Courts under Sections 35, 36 and 38 of we Road Traffic Act, 1930. The view is that the extension in connection with a driver of a vehicle is qualified by a permissible provision requiring that the permitted driver does not himself hold a personal insurance policy, it is sufficient in this connection to point out that though Sections 35 and 36 of the English Act so far as relevant are almost in similar terms as Sections 94 and 95 of our Motor Vehicles Act, Section 38 is materially, different from Section 96(3) of our Act. Section 35 of the English Act renders ineffective any condition in a policy providing for the avoiding of the liability in the event of specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy in connection with the claims as are mentioned in paragraph (b) of Sub-section (1) of Section 36, which is entirely different from saying that no condition which is not one of those in Section 96 (2) (b) shall be effective in displacing the liability under Section 95 (1) In our opinion, the view of the British courts as aforesaid can, therefore, be of no assistance in the interpretation of the relevant provisions of the Indian statute.

14. Lastly it is argued, which is almost an argument of dispair, that the appeal by the defendant is incompetent. It is contended that the notice was got issued by the plaintiff on the respondent company which was discharged by the order of the learned Judge, that the defendant could not in any way be said to be affected in his rights by the discharge of that notice and that, therefore, he had no right to appeal. In this connection it is necessary to refer to the defendant's affidavit in answer to the Chamber Summons taken out by the respondent, in answer to a contention on behalf of the respondent, in paragraph 7 he denied that the defendant was not entitled to an indemnity from the respondent or that fie was not included within the class of persons insured by it He claimed to render both the respondent company as also his own Insurance Company liable for any decree or judgment that might be passed against him. Since I to discharge the notice as against the respondent Company would render his position very insecure in relation to the ultimate decree, it must be held that he is a person who is aggrieved by the order made by the learned Judge and, therefore, entitled to appeal.

15. In the result, the prayers (a) and (b) of the Chamber Summons in both the suits will fail and are dismissed. The learned trial judge before whom the Chamber Summonses will now be placed will hear them as regards the prayers (c) and (d) therein and make such orders as the justice of the cause may require. The 1st respondent Company will pay the costs of both the appeals and also of the hearing of the Chamber summonses before the learned Judge as directed by Mr. Justice Tarkunde by his order dated 12th September 1961. The costs will be Rs. 250/- in each. Chamber summonses' costs to be paid to the plaintiffs and the costs of the appeals to be paid to the appellant-defendant cross objections of the 1st Respondent are dismissed with costs liberty to the appellant's attorneys to withdraw the amount of security furnished by him.

16. Order accordingly.


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