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New India Insurance Co. Ltd., Bombay Vs. Smt. Molia Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (First) Appeal Nos. 165 of 1965 and 174 of 1966
Judge
Reported inAIR1969MP190; 1969MPLJ237
ActsMotor Vehicles Act, 1939 - Sections 96(2), 96(6), 110(3) and 110D; General Clauses Act, 1897 - Sections 15
AppellantNew India Insurance Co. Ltd., Bombay
RespondentSmt. Molia Devi and ors.
Appellant AdvocateR.P. Verma, Adv.
Respondent AdvocateP.P. Naolekar, Adv. for Respondent No. 1, ;M. Yunus, Adv. for Respondent No. 2;K.K. Dubey, Govt. Adv.
DispositionAppeal dismissed
Cases ReferredSmt. Manjula Devi Bhuta v. Smt. Manjusri Baha
Excerpt:
- - but if it does not, we would like to propound that the notification, would be perfectly valid and the same cannot be challenged on the ground that in a remote case it might result in the appointment of a person who is not qualified. but, in all other cases appointment by official designation would be perfectly valid. we may observe that the insurer has only certain limited grounds on which it can avoid its liability as permitted by section 96 (2) of the act and sub-section (6) of the said section clearly lays down that the liability cannot be avoided in any other manner except to the extent permitted by sub-section (2). the order of the division bench, dated 20-4-1967 refusing to transpose the second respondent as an appellant having become final, the said question is not required.....tare, j.1. this order shall also govern the disposal of misc. (f) appeal no. 162 of 1965 d/- 17-12-1968, dr. sarvar hussain v. auto instalment co., private ltd. in both the cases a preliminary point has been raised to the effect that the appointment of the additional district judge as a motor accident claims tribunal by official designation is invalid and, therefore, the court below had no jurisdiction to try the case. in support of this, attention is invited to the observations of our brother, naik j. in lucky bharat garage (private) ltd., raipur v. smt. shanti devi, civil revn. no. 190 of 1966 d/- 27-9-1968 (mp). it may be necessary to examine the reasoning of our learned brother.2. the following notification was issued:'notification no. 3307/2/a-2, bhopal, dated 25 may, 1965/ motor.....
Judgment:

Tare, J.

1. This order shall also govern the disposal of Misc. (F) Appeal No. 162 of 1965 D/- 17-12-1968, Dr. Sarvar Hussain v. Auto Instalment Co., Private Ltd. In both the cases a preliminary point has been raised to the effect that the appointment of the Additional District Judge as a Motor Accident Claims Tribunal by official designation is invalid and, therefore, the Court below had no jurisdiction to try the case. In support of this, attention is invited to the observations of our brother, Naik J. In Lucky Bharat Garage (Private) Ltd., Raipur v. Smt. Shanti Devi, Civil Revn. No. 190 of 1966 D/- 27-9-1968 (MP). It may be necessary to examine the reasoning of our learned brother.

2. The following Notification was Issued:

'Notification No. 3307/2/A-2, Bhopal, dated 25 May, 1965/ Motor Vehicles Act, 1939, No. 4 of 1939.

dh /kkjk O dh mi/kkjk 2 }kjk iznk'kfDr;ksa dks iz;ksx esa ykrs gq;s] jkT; 'kklu ,rn~}kjk] - izFke vfrj ftyk ,oal= U;k;k/kh'k] fcykliqj] 2- vfrfjDr ftyk ,oa l= U;k;k/kh'k] jhok] vkSj - izFkevfrfjDr ftyk ,oa l= U;k;k/kh'k] Xokfy;j dks] e'k% bl foHkkx dh vf/klwpukekad O'AnksA, 2A''] fnukad ' vxLr .'' dsd v/khu foykliqj]jhok rFkk Xokfy;j ds fy;s xfBr ehVj OghdYl

DysEl fVC;wuy ds lnL; ds :i esa fu;qDr djrkgS vkSj bl iz;kstu ds fy;s mDr vf/klwpuk dks fuEufyf[kr :i es la'kks/ku djrk gS]vFkkZr%&

- --------------------------------

2- --------------------------------

- DysEl fVC;quy] jhok ls lacaf/krizfof'V ' ds lkeus dkye ' esa fo|eku 'kCnksa] ds LFkkuij ^^AdditionalDistrict and Sessions Judge, Rewa** vfrfjDrftyk ,oa l= U;k;k/kh'k] jhok ^^LFkkfir fd;s tk;**A

e/;izns'k ds jkT;iky

ds uke ls rFkk vns'kkuqlkj]

lgh & milfpo

Previously appointment used to be made by name, but that practice was given up and the appointment by official designation came to be made.

3. Our learned brother Naik J. felt that that Notification was in violation of Section 110 of the Act in so far as it permits a person to be a member of the Tribunal who may not fulfil the qualifications enunciated in Sub-section (3) of Section 110 of the Motor Vehicles Act, 1939. It was argued before him that the Second Additional District Judge, Raipur, need not necessarily be a person who fulfils the requirements of Section 110 of the Act, because in the State of Madhya Pradesh an Additional District Judge is neither a District Judge, nor a person who is necessarily qualified for appointment as a Judge of the High Court. Article 217 of the Constitution of India prescribes the qualifications for appointment of a person as a Judge of a High Court to the effect that he must have put in 10 years' practice at the High Court Bar or must have held a judicial office in the territory of India at least for 10 years.

Therefore, Naik J. thought that there might be a conceivable case where a person may be an Additional District Judge who has not fulfilled the qualifications prescribed for appointment as a Judge of a High Court under Article 217 of the Constitution of India. Referring to the definition of a 'District Judge' in Article 236 of the Constitution of India Naik J. observed that although it may include a Judge of a Civil Court, Additional District Judge, Joint District Judge. Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate. Sessions Judge Additional Sessions Judge and Assistant Sessions Judge, but that definition, as the Article itself shows, is for the purposes of Chapter VI of part VI of the Constitution of India. It can have no relevance for the purpose of interpreting the expression 'District Judge' as occurring in the Motor Vehicles Act. Referring to the definition of a 'District Judge' as provided in Section 3(17) of the GeneralClauses Act (X of 1897), he observed that it would mean 'the Judge of a principal Civil Court of Original Jurisdiction'.

The question, therefore, would be whether an Additional District Judge is the Judge of a principal Civil Court of Original Jurisdiction. The answer would be that he is not, because under Section 3 of the Madhya Pradesh Civil Courts Act, 1958, there would be four classes of Civil Courts -- the Court of the District Judge, the Court of the Additional District Judge, the Court of Civil Judge Class I and the Court of Civil Judge Class II and under Section 7 of that 'Act, the Principal Civil Court of Original Jurisdiction is the Court of the District Judge. Therefore. Naik J. thought that the Additional District Judge could never be considered to be the principal Civil Court of Original Jurisdiction. We propose to deal with these various reasons presently.

4. Section 15 of the General Clauses Act, 1897, empowers the appointing authority to appoint a functionary either by name or by virtue of office. So far as Tribunals under the Motor Vehicles Act, 1939 are concerned, they were previously appointed by name. For Rewa Region the then Additional District and Sessions Judge, Shri N. L. Shrivastava, was appointed as one member Tribunal. However, subsequently it was realised that on account of transfers of Judges, fresh notifications would be required to be issued every time, if the appointment was by name. Therefore, in the year 1965 there was a suggestion that appointments of Tribunals might be made by office. In pursuance that suggestion the Notification referred to above was issued.

5. Coming to the first question whether the Notification is in contravention of Section 110 (3) of the Motor Vehicles Act, 1939. Section 110 (3) of the Motor Vehicles Act, 1939, prescribes the qualifications of a member to preside over the Accident Claims Tribunal which are as under:--

'A person shall not be qualified for appointment as a member of a Claims Tribunal unless he -

(a) -- is, or has been, a Judge of a High Court, or

(b) -- is, or has been, a District Judge, or

(c) -- is qualified for appointment as a Judge of the High Court.'

If an appointment is made by name, it is likely that an unqualified person might not come to be appointed. But if an appointment is made by official designation, there may be a remote probability of a person holding the office of the Additional District Judge Rewa, who isnot qualified to be appointed a Judge of the High Court, as per Article 217(2) ofthe Constitution of India. Therefore, the question is whether the appointment by official designation renders the appointment altogether invalid. Although, it may be valid in about 99 per cent cases, while it might be rendered invalid in a stray case where a person not qualified to be appointed a Judge of a High Court comes to hold the office of the Additional District Judge. We feel that our learned brother, Naik J. has taken an extreme view in holding that an appointment by official designation would be rendered invalid in all types of cases, even though the Additional District Judge concerned may be a person qualified to be appointed a Judge of the High Court. Section 15 of the General Clauses Act, 1897 permits appointment either by name or by office and if the view propounded by our learned brother were to be accepted, it would imply that there can be no appointment by official designation where certain qualifications are prescribed for such appointments. In that event Section 15 of the General Clauses Act, 1897, would be otiose and could never be resorted to. But, we might mention that appointments by official designation have been upheld under different enactments by the High Courts.

6. It is true that as indicated by our learned brother Naik J., the person presiding over the Accident Claims Tribunal functions as a persona designata and not as a Court. We might advert to the observations of Mehar Singh J. (as he then was) in Harbans Singh v. Gurmeet Kaur, ILR (1966) 2 Punj 212 wherein the learned Judge expressed the opinion that a Tribunal appointed under Section 110 of the Motor Vehicles Act, 1939, would be a persona designate and not a Court, although it may be invested with certain powers of a Civil Court for limited purposes.

7. In Malabati Tea Estate v. Sm. Budhni Munda, AIR 3959 Tripura 16 the learned Judicial Commissioner had to consider whether an authority under the Minimum Wages Act, 1948, could be appointed by office and whether such an appointment would be rendered invalid. Under the said Act the authority to be appointed should be 'other officer with experience as a Judge of a Civil Court'. The learned Judicial Commissioner interpreted the phrase to mean that the authority either be working or should have worked as a Presiding Judge of a Civil Court and if the appointment be of a Presiding Officer of a Civil Court of official designation, the appointment would not be rendered invalid on that account alone. We may further observe that appointments of Sanitary Inspectorsas Food Inspectors under the Prevention of Food Adulteration Act, 1954, by official designation were upheld by Jagan Mohan Reddy J. in Public Prosecutor v. Narkidimili Sriambhadrayya, AIR 1960 Andh Pra 282 and by a Division Bench of the Mysore High Court in State of Mysore v. Danjaya, AIR 1963 Mys 157. Similarly, a Division Bench of the Madras High Court in In re, Palanisamy Chettiar AIR 1957 Mad 351, upheld the appointment of a District Magistrate as an Assistant Sessions Judge under the Code of Criminal Procedure.

8. It is true that in Aurangabad Mills Ltd. v. Industrial Court, AIR 1952 Hyd 144 where the question was about the appointment of an Industrial Tribunal, the Division Bench thought that an appointment by official designation would be invalid and in its opinion the appointment should be by name. Merely because an appointment is by official designation, it cannot be asserted that the necessary qualifications for appointment have not been considered by the appointing authority.

9. The precise question came to be considered by Khanna J. in New Asiatic Transport (P) Co. Ltd., v. Manohar Lal, ILR (1965) 2 Punj 751. In that case the Notification under the Motor Vehicles Act, 1939, appointing the Judge of the Small Cause Court, Delhi as a Tribunal under the Act came for consideration. Khanna J. expressed the opinion that such a Notification by official designation could not be said to be invalid merely because the order appointing the Tribunal did not indicate whether the appointing authority had considered the qualifications of the person proposed to be appointed as a Tribunal.

We may observe that it is common knowledge that only senior Additional District Judges are appointed as First or Second Additional District Judges at important centres in the State and ordinarily a person who is not qualified would rarely have the chance of being appointed as Second Additional District Judge, Raipur, or for the matter of that the Additional District Judge, Rewa. We can conceive of a situation where a person directly recruited as an Additional District Judge, for which the qualification may be 7 years practice at the Bar, comes to hold the post of an Additional District Judge, Rewa. Of course in that event he cannot claim to function as a Tribunal by virtue of the Notification referred to above, as he would not be qualified to be appointed as a Judge of a High Court. But, we feel that in every case it would be necessary to examine whether the person functioning as a Tribunal is qualified or not. It is for a party to raise the question of jurisdiction, if a personnot qualified comes to hold the post. To that extent we might agree that the Notification might be rendered invalid. Otherwise the Notification does not suffer from any infirmities and it cannot be said to be in contravention of Section 110 (3) of the Motor Vehicles Act, 1939.

10. We may deal with another facet of the question. We fully agree with our learned brother Naik J., that the Motor Accident Claims Tribunal would be functioning as a persona designala and not as a Court. But, there is no bar to the appointment of a persona designata by official designation, as per Section 15 of the General Clauses Act, 1897. For the matter of that some of the Corporations Acts or the Municipalities Acts provide for appointment of a Tribunal for election purposes by official designation, such as a District Judge. Similarly, some of the Panchayats Acts in different Stales provide for a re visional authority against the decisions of the Panchayats and appointments by official designation are made, such as Civil Judge Class I of a particular place.

The appointment itself is not rendered invalid merely because it is by official designation. But the question in each case to be decided on facts and circumstances would be whether the appointment by official designation has actually resulted in the appointment of an unqualified person for a particular office or Tribunal. If it results that way, the appointment would certainly be invalid. But if it does not, we would like to propound that the Notification, would be perfectly valid and the same cannot be challenged on the ground that in a remote case it might result in the appointment of a person who is not qualified.

Therefore, we feel that it is necessary to modify the observations made by our learned brother, Naik J. to this extent by stating that the appointment by official designation would be invalid only if it results in appointment of a person not qualified to hold the post. But, in all other cases appointment by official designation would be perfectly valid. For this reason, we are unable to agree with the observations of our learned brother, Naik J. in Civil Revn. No. 190 of 1966 D/- 27-9-1968 (M. P.) (supra).

11. Another difficulty that our learned brother Naik J. felt was that under the Madhya Pradesh Civil Courts Act, 1958, the Court of the Additional District Judge being a separate category, the same cannot be equated with the Court of the District Judge, and as such, an Additional District Judge cannot function as a Principal Civil Court of Original Jurisdiction. We may observe that it is for the purpose of overcoming that difficulty that the legislature hasenacted Section 7(2) of the M. P. Civil Courts Act, 1958, which is as follows:--

'7. Principal Civil Court of original jurisdiction-

(1) -- The Court of the District Judge shall be the Principal Court of original jurisdiction in the Civil district.

(2) -- An Additional District Judge shall discharge any of the functions of a District Judge including the functions of the Principal Civil Court of original jurisdiction, which the District Judge may by general or special order assign to him and in discharge of such functions he shall exercise the same powers as the District Judge.'

Therefore, an Additional District Judge can be empowered by the State Government or by a general or a special order to be passed by the District Judge and if so empowered, he can perform the functions of a Principal Civil Court of original jurisdiction. In this connection, we might refer to the observations of a Special Bench of this Court in Komalbai v. Dwarkadas, Misc. Civil Appeal No. 30 of 1962 D/-30-3 1965 (SB) and the difficulty, in our opinion, as was imagined by our -learned brother, Naik J., would not be real. Therefore, it cannot be said that in no case can an Additional District Judge function as a Principal Civil Court of original jurisdiction.

12. Our learned brother Naik J. thought that the entire Notification would be rendered invalid as it permitted the appointment of a person who may not be qualified. For that purpose he quashed the Notification holding that the Claims Tribunal appointed under the Notification had no jurisdiction to entertain the claim. We are unable to agree with that view. In a Civil Revision the Notification could only be declared invalid and could not be quashed, which might properly be done in exercise of prerogative rights under Article 226 of the Constitution of India. In actual fact it would make no difference whether the Notification is quashed or declared invalid. But that, in our opinion, should have been the proper phraseology. However, we are unable to agree with the view expressed by our learned brother, Naik J. and expressing our dissent with due respect to the learned Judge, we hold that the Notification is valid and that it does not contravene the provisions of Section 110 (3) of the Motor Vehicles Act, 1939.

Morever, on a reference to the Civil List published by the State Government, we find that the Member of the Tribunal Shri D. B. Karhade, Additional District Judge, has put in much more than 10 years service as a judicial officer and as such he was qualified to be appointed a Judge of the High Court under Article 217(2) of the Constitution of India.

13. As a result, we overrule the preliminary objection raised on behalf of the appellant and proceed to decide the case on merits. As the question is one of first impression, we direct that there shall be no order as to costs of the preliminary objection.

ORDER

Tare, J.

14. This is an appeal under Section 110 (D) of the Motor Vehicles Act, 1939, against the award passed by the Motor Accident Claims Tribunal, Rewa. in Motor Claims Case No. 12 of 1964, dated 30-9-1966, awarding a sum of Rs. 10,000/- as compensation for the death of one, Maheshprasad, a peon in the Excise Department, who was the husband of the first respondent, Smt. Moliabai.

15. The accident took place on 17-3-1964 when truck No. M.P.A./3134, owned by the second respondent, Keshriprasad and driven by the third respondent, Bhaiyalal which was proceeding from Satna to Amarpatan, dashed against the cycle of the deceased Maheshprasad, who was returning from the Excise Office at Amarpatan to village Gadauli.

16. The first respondent in her claim petition alleged that the deceased was going on a cycle on the extreme left side of the road. The truck coming from the opposite side was being driven with speed and suddenly the truck took a turn towards its right side, thereby crushing Maheshprasad and his cycle under the wheels. As a result, Maheshprasad died on the spot. A report of the accident, Ex. P/2, was immediately made by Headconstable Badriprasad (P. W. 4).

17. The first respondent in her claim petition claimed a compensation of Rs. 30,000/- on the allegation that the deceased at the time of his death was getting a salary of Rs. 77 per month, inclusive of clearness allowance and Rs. 300/- annually from the private agriculture. According to her, the deceased used to earn about Rs. 1,224/- per year. At the time of his death, the deceased was aged about 39 years. The deceased had left the first respondent, his widow, and a daughter aged about 3 years, who would be without a bread earner of the family. The deceased had put in 15 years of service in the Excise Department.

18. The defence of the second and the third respondents was that there was no rash and negligent driving on the part of the truck-driver, but the deceased himself, who used to drink sometimes, was under the influence of liquor and the accident took place because of that fact. It was also admitted by the said respondents that the third respondent driver had been fined for the rash and negligent driving in connection with this accident by a Criminal Court.

19. The Claims Tribunal held that the truck was driven rashly and negligently and the accident was a result of such rash and negligent driving. It was found as a fact that the deceased was towards the extreme left side of the road. The truck coming from the opposite side without blowing any horn took a sudden turn towards its extreme right side thereby crushing the deceased and his cycle under the wheels. The learned Member of the Tribunal, therefore held the second and the third respondents as also the appellant Insurance Company liable for the claim amount.

20. As regards the quantum of the claim amount, we may observe that the learned Member of the Tribunal has disposed of the question very summarily by observing that an amount of Rs. 10,000 as compensation would be reasonable. He did not care to discuss the various tests as laid down by their Lordships of the Supreme Court in Gobald Motor Service Ltd., v. R. M. K. Veluswami, AIR 1962 SC 1. However, in our view the quantum of compensation is correct and the Insurance Company at least cannot be allowed to challenge it except when it exceeds the statutory limit, as laid down by Section 95 (2) (a) of the Motor Vehicles Act, 1939, as laid down by a Division Bench of this Court in Smt. Manjula Devi Bhuta v. Smt. Manjusri Baha, (1967) 1967 MPLJ 972 = 1968 Jab LJ 189.

21. It is pertinent to note that the truck owner has not cared to file an appeal. His application for being permitted to be transposed as appellant was, however rejected by an order dated 20-4-1967. The said application was filed on 14-3-1967, i.e., much beyond the period of limitation. Similarly, the question whether relief could be given to the second respondent, the truck owner, by exercising power under Order 41, Rule 33, C. P. C. was kept open by the said order. Therefore, we propose to consider this question.

22. Section 96 (2) of the Motor Vehicles Act, 1939, permits the insurer to challenge the award of compensation on grounds mentioned in the sub-section and Sub-section (6) of the said section lays down that no insurer to whom the notice referred to in Sub-section (2) or Subsection (2-A) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment as is referred to in Sub-section (1) or Sub-section (2-A) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the State of Jammu and Kashmir or of the reciprocating country, as the case may be. It is relevant to reproduce Sub-section (2), which is as follows:--

'No sum shall be payable by an Insurer umder Sub-section (1) in respect of anyjudgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--

(a) -- that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or

(b) -- that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:

(i) -- a condition excluding the use of the vehicle-

(a) -- for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) -- for organized racing and speed testing, or

(c) -- for a purpose not allowed by the permit under which the vehicle is used where the vehicle is a public service vehicle or a goods vehicle, or

(d) -- without side-car being attached, where the vehicle is a motor cycle; or

(ii) -- a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) -- a condtion excluding liability for injury caused or contributed to by conditions of war, riot or civil war,/ civil commotion; or

(c) -- that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.'

23. It is to be noted that the grounds of appeal raised are not covered by the provisions of Section 96 (2) of the Motor Vehicles Act, 1939. Ground No, 1, merely states that the Claims Tribunal acted Illegally and in disregard of the provisions of law in awarding Rs. 10,000/- to the claimant by way of compensation and that in the state of circumstances asbrought out on record the appellant Insurance Company stood exonerated of any liability. We may observe that no illegality has been specified, nor was it clarified during arguments. It has not been explained as to how the Insurance Company stood exonerated of the liability and in view of what circumstances brought out on record.

Ground No. 2, states that the accident was as a result of the deceased being under the influence of liquor and not on account of any rash and negligent driving on the part of the truck driver. This ground is not open to the insurer. The third ground relates to the alleged contributory negligence on the part of the deceased. We may observe that this ground is also not available to the insurer. The fourth ground relates to the proper construction of the first information report (Ex P/2). That ground also cannot be raised by the appellant.

It concerns the question of rash and negligent driving which the insurer only can raise. The fifth ground merely alleges that the award of compensation at Rs. 10,000 is highly arbitrary, illegal and without any rational foundation. The ground is absolutely vague and it is not permissible for the insurer to challenge the award on any ground except the one mentioned in Section 96 (2) of the Article The sixth ground challenges the quantum of compensation complaining that the correct tests were not applied by the Tribunal. We may observe that this ground also is not open to the insurer. The seventh ground is an omnibus ground stating that the award is erroneous on facts and in law.

This ground cannot be allowed to be raised by the insurer, as it is not covered by Section 96 (2) of the Act and in this view of the matter no questions would ordinarily be needed to bo considered in this appeal. It was rightly observed by the Division Bench passing the order, dated 20-4-1967 that this appeal raises grounds which are not permitted by Section 96 (2) of the Act. That consideration persuaded our learned brothers not to allow the truck owner (respondent No. 2) to be transposed as an appellant. We may observe that the insurer has only certain limited grounds on which it can avoid its liability as permitted by Section 96 (2) of the Act and Sub-section (6) of the said section clearly lays down that the liability cannot be avoided in any other manner except to the extent permitted by Sub-section (2). The order of the Division Bench, dated 20-4-1967 refusing to transpose the second respondent as an appellant having become final, the said question is not required to be considered any further. But the Division Bench left open, thequestion whether Order 41 Rule 33, C. P. C. could be invoked in favour of the second respondent. Therefore, we are called upon to consider that question only.

24. It is true that Order 1 Rule 10 (2)of the Code of Civil Procedure permits transposition of parties in the interests of justice. But as has been observed by the Division Bench in its order, dated 20-4-1967, permitting transposition in a case of this type would be permitting to enlarge the scope of the appeal. We may further observe that if the power under Order 41, Rule 33, C. P. C. were allowed to be invoked by the insurer or even the insured (respondent No. 2), that would set at naught the provisions of Sections 96 (2) and 96 (6) of the Motor Vehicles Act, 1939.

The application for transposition was made much beyond the period of 60 days which was beyond limitation. The insurer in its appeal can raise only certain set grounds and other grounds are not open. In the present case the insured did not care to file an appeal. Therefore, if Order 41, Rule 33 C. P. C., were allowed to be invoked, it would give an undue advantage to the insurer despite the fact that the insured has remained satisfied with the award of the Claims Tribunal. In this view of the matter in a case of the present type invoking Order 41, Rule 33, would amount to an abuse of the processes of Court of law so as to set at naught the specific provisions as contained in Sections 95 and 96 of the Motor Vehicles Act, 1929. Therefore, we reject the contention of the learned counsel for the appellant that power under Order 41, Rule 33, C. P. C. should be invoked so as to give relief to a non-appealing respondent.

25. Thus, there can be no doubt that the present appeal is wholly without substance and the same deserves to be dismissed. Accordingly, it is dismissed with costs. Counsel's fee in this Court shall be Rs. 200, if certified. The costs of the Tribunal shall be borne as directed by the Addl. District Judge.


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