1. Amarjit Singh, Head Constable, who was travelling in a car belonging to Swaran Singh, respondent, met with a fatal accident on December 29, 1968, near Chandigarh, when the said car struck against the truck belonging to Balwant Singh, respondent No. 3. His widow on her own behalf and on behalf of the minor children filed a claim petition under Section 110-A of the Motor Vehicles Act, (hereinafter called the Act), claiming compensation on account of the premature death of Amarjit Singh a result of the accident, In this petition, the insurance company with which the truck, in question, was insured, was also impleaded as a respondent. The other respondents were the owner of the truck and its driver as well as the owner of the car and its driver. The claim petition was allowed and an amount of Rs. 20,000/- was awarded as compensation against the owner and the driver of the truck as well as the appellant insurance company, No liability was fastened on the owner or the driver of the car, in question, or the insurance company with which the car had been insured. The present appeal has been filed only by the insurance company i. e. insurer of the truck.
2. It is not disputed that as long as the award is not set aside, the appellant insurance company was liable in accordance with law. However, the appellant insurance company has challenged the award on merits on the grounds which had been taken by the driver and the owner of the truck, in question. Along with this appeal, an application was also filed with a prayer that permission may be granted to the appellant to challenge the award on merits on behalf of the insured, that is, the owner of the truck, This contention is challenged on behalf of the respondent. Reliance is placed on British India General Insurance Co Ltd. v. Itbar Singh, AIR 1959 SC 1331 and Northern India General Insurance Co. Ltd. v. L. Krishanan, 1972, ACJ 420, (Mys) according to which it has been expressly held that the insurer can urge all the defences open to the insured only when the insurer defends the action in the name of the insured by virtue of the right reserved in the insurance policy. According to Section 110-C(2-A) of the Act, the claims tribunal, if satisfied, can allow the insurer, for reasons to be recorded, in writing, to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. In the present case, however, neither the appellant insurance company claimed this right on the ground that there was a collusion between the insured and the claimant or that the insured had failed to contest the claim on merits, nor the tribunal passed any order granting this right to the insurance company.
3. The learned counsel for the appellant, has relied upon a Division Bench Judgment of this Court in Unique Motor and General Insurance Co. Ltd. Bombay v. Kartar Singh, (1964) 66 Pun LR 1083. A close perusal of the same, however, shows that in the said case, there was a specific condition stipulated in the insurance policy that the insurer will be entitled to defend the claim petition in case of an accident on behalf of the insured and the insurer had claimed that right before the tribunal, but the tribunal had arbitrarily refused to grant that right. It was in this situation, that the order of the tribunal was set aside and the insurer was allowed to contest the claim on merits, in appeal. In the present case, the facts are entirely different, The claim petition was contested on merits by the insured and the driver of the truck, in question, and the insurance company had not objected before the Tribunal that the insured had concluded with the claimant or was not contesting the, claim of the claimant. In these circumstances, the ratio of the decision in Itbar Singh's case (supra) will be fully applicable and the appellant insurance company is not entitled to contest the award on merits.
4. Consequently, there is no merit in this appeal which is dismissed, however, with no order as to costs. In view of the statement of the learned counsel for respondent No. 3, the cross-objections ate also dismissed.
5. Appeal dismissed.