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United India Fire and General Insurance Co. Ltd. Vs. Smt. Kalyani and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Insurance
CourtKerala High Court
Decided On
Case NumberA.S. No. 205 of 1977
Judge
Reported inAIR1982Ker315; [1985]58CompCas746(Ker)
ActsMotor Vehicles Act, 1939 - Sections 96(2)
AppellantUnited India Fire and General Insurance Co. Ltd.
RespondentSmt. Kalyani and ors.
Appellant Advocate C.S. Rajan,; A. Hariharasubramanian,; Thomas John an
Respondent Advocate V.M. Prabhakaran Nair,; Jose K. Kochupappu and; M. Vijay
DispositionAppeal dismissed
Cases Referred and Kesavan Nair v. State Insurance Officer
Excerpt:
motor vehicles - defence - section 96 (2) of motor vehicles act, 1939 - claim for accidental compensation - compensation granted - insurance company took defences to avoid liability to pay compensation - section 96 (2) prescribed defences which insurer can take to avoid liability - insurance company took defences outside purview of section 96 (2) - held, insurance company liable to pay compensation. - - in its written statement the insurance company also denied the rashness and negligence attributed to the second defendant and contended that the suit was bad as all the legal representatives of surendran had not been made parties. sub-section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it.balagangadharan nair, j.1. appellant, the united india fire and general insurance co. ltd. (the insurance company) which was the additional 3rd defendant in a suit for compensation has brought this appeal seeking reversal of the decree passed by the additional subordinate judge, trichur. the relevant facts out of which the appeal arises lie in a narrow compass and can be briefly stated.2. one surendran who is the son of theplaintiffs-respondents 1 and 2 was employed as a cleaner by the first defendant-3rd respondent in his lorry klr 6093 of which the second defendant-fourth respondent was the driver. on jan. 4, 1973 at about 5 p. m. the lorry was involved in an accident at ayakudi on palani-dindigal road in the course of which surendran sustained serious injuries leading to his death. the.....
Judgment:

Balagangadharan Nair, J.

1. Appellant, the United India Fire and General Insurance Co. Ltd. (the Insurance Company) which was the additional 3rd defendant in a suit for compensation has brought this appeal seeking reversal of the decree passed by the Additional Subordinate Judge, Trichur. The relevant facts out of which the appeal arises lie in a narrow compass and can be briefly stated.

2. One Surendran who is the son of theplaintiffs-respondents 1 and 2 was employed as a cleaner by the first defendant-3rd respondent in his Lorry KLR 6093 of which the second defendant-fourth respondent was the driver. On Jan. 4, 1973 at about 5 P. M. the lorry was involved in an accident at Ayakudi on Palani-Dindigal Road in the course of which Surendran sustained serious injuries leading to his death. The accident, according to the plaintiffs, was caused by the rash and negligent driving of the lorry by the second defendant. He was prosecuted before the Sub-Divisional Magistrate, Dindigal for the offence Under Section 304A, Penal Code, and on his plea of guilty he was convicted and sentenced to pay a fine of Rupees 200/- with a default sentence of rigorous imprisonment for four months. The first plaintiff brought the suit against the owner and the driver of the lorry, as defendants 1 and 2 claiming compensation of Rupees 20,000/- on account of the death of Surendran. Subsequently the Insurance Company was joined as additional 3rd respondent Defendants 1 and 2 contended that it was not correct that the second defendant drove the lorry in a rash and negligent manner and brought about the accident. The first defendant took a further defence that if compensation was to be awarded the Insurance Company should be directed to pay it. In its written statement the Insurance Company also denied the rashness and negligence attributed to the second defendant and contended that the suit was bad as all the legal representatives of Surendran had not been made parties. It was on this contention that Surendran's father was joined as additional plaintiff 2. The Insurance Company disowned liability on the further ground that the lorry had not been insured with it.

3. On the admission of the first defendant as D. W. 1 the Court found that Surendran was a cleaner in the lorry. On the more controversial question whether the lorry was driven rashly or negligently the Court rejected the evidence of the relevant witnesses, P. Ws. 2 and 3 but found that as the second defendant had pleaded guilty to the charge Under Section 304, Penal Code and suffered a conviction he could be held to have driventhe lorry rashly and negligently on his own admission. The Court overruled the 3rd defendant's defence of non-liability finding that the Insurance cover Ext. B1 disclosed that the lorry was covered. On the amount of compensation the Court held that Rs. 9,000/- was a reasonable amount. On those findings the learned Judge gave judgment for the plaintiffs for Rs. 9,000/- with interest at 6% per annum from the date of suit till recovery against the defendants with proportionate costs.

4. Counsel for the appellant opened the appeal contending that the suit should have been dismissed as there was no evidence of rashness or negligence on the part of the driver, the Court having rejected the relevant witnesses P. Ws. 2 and 3. He submitted that the Court erred in relying upon the plea of guilty of the second defendant as sufficient to constitute an admission for this suit on which a finding of rashness and negligence could be entered. He pointed out that the findings in the judgment of the Criminal Court were irrelevant in a civil suit, and that much less is the relevancy of a plea of guilty. While meeting those contentions, Mr. Kochapappu counsel for the plaintiffs-respondents raised what he called, a preliminary objection that these defences were not open to the Insurance Company and they should not be entertained to upset the judgment. We therefore heard full arguments on this point and in the event it became the central issue in the appeal. As we are inclined to uphold the objection of counsel for the respondents it is needless to canvass the merits of the contention raised by the appellant on the adequacy of the evidence.

5. Section 94 of the Motor Vehicles Act makes insurance against third party risk compulsory. Section 95 deals with the requirements of the policies of such insurance and the limits of the liability to be covered thereby. Sub-section (1) provides that a policy of insurance must be a policy which -

'(a) .........................

(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) - (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.'

6. Section 96(1) lays an obligation upon the insurer who has issued a policy in termsof Section 95(1)(b) to pay to the person entitled to the benefit of a decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and interest on that sum, Sub-section (2) reads:

'No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment 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 proceeding 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 organised 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 transport 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 condition excluding liability for injury caused or contributed to by conditionsof war, civil war, riot or civil commotion; or

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

7. Sub-section (6) which is the only other provision that falls to be noticed provides :

'No insurer to whom the notice referred to in Sub-section (2) or Sub-section (2A) 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 (2A) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.'

The scope and impact of those provisions arc not matters of first impression as they have been settled by the Supreme Court in British India General Insurance Company Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331. The two suits out of which the appeal arose were for damages suffered by the plaintiffs as a result of the negligent driving of the cars. The Insurance Company which had issued a third party insurance and was made a party filed written statements taking defences other than those mentioned in Sec-lion 96 (2). The plaintiffs contended that the written statements should be taken off the records on the ground that the insurers could defend the action only on the pleas specified in the sub-section and on no others. The High Court upheld the plain-tiffs' objection. In the appeal filed by the Insurance Company in the Supreme Court the question was whether the defences available to the insurer added as a party under Section 96(2) are only those mentioned therein. The Supreme Court discussed the provisions at length and rejected the arguments on behalf of the Insurance Company, holding that an insurer who is made a defendant to an action is not entitled (o take any defence which is not specified in Sub-section (2). It is enough to reproduce the headnote as it correctly represents the substance of the decision :

'Apart from the statute an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Sub-section (2) of Section 96 however gives him the right to be made a party to the suit and to defend it. The right therefore is created by statute and its content necessarily depends on the provisions of the statute. Sub-section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it. When the grounds of defence have been specified, they cannot be added to. The only manner of avoiding liability provided for in Sub-section (2) is through the defences therein mentioned. Therefore when Sub-section (6) talks of avoiding liability in the manner provided in Sub-section (2), it necessarily refers to those defences. It cannot be said that in enacting Sub-section (2) the legislature was contemplating only those defences which were based on the conditions of the policy.'

In view of this pronouncement -- and our attention was not drawn to any subsequent decision of the Supreme Court -- it is really unnecessary to discuss the later decisions of the various High Courts that were cited by counsel. We may however mention the following cases, to acknowledge the industry of counsel, where the above decision has been followed. General Assurance Society v. Mohammed Hussain, AIR 1966 Mad 388; M. M. & G. Ins. Co. v. Jagadeeswari, AIR 1974 Mad 318; General Assurance Society v. Jayalakshmi Ammal, AIR 1975 Mad 198; Abdulkadar v. Kashinath, AIR 1968 Bom 267; United Fire & Gen. Insurance Co. Ltd. v. P. Parvathamma, AIR 1981 Andh Pra 227; Hukum Chand Insurance Company Ltd. v. Suhashini Roy, 1971 Acc CJ 156; Mangilal v. Parasram, AIR 1971 Madh Pra 5 (FB); and Kesavan Nair v. State Insurance Officer, 1971 Ker LT 380.

8. What the appellant raises before us are not contentions or defences which are open to it as an insurer Under Section 96(2), but matters which are outside is provisions. This it cannot be allowed to do for as an insurer it is confined to those defences and is statutorily precluded from taking any other. That the contentions are raised not in the original Court but in the appeal is immaterial as the same provision must govern the appeal which is but a continuation of the suit. It is illogical and unsound to hold that the Insurance Company is freed of the fetters Under Section 96(2) once the original Court has given a decision overruling its defence. The appellant has no case, apart from the fact that it has not produced the insurance policy, that any right has been reserved for it to defend the action in the name of the assured, for as pointed out by the Supreme Court in para 16 of the above case '........the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defences open to the assuredcan then be urged by him and there is no other defence that he claims to be entitled to urge. He can thus avoid all hardship if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do,' As the appellant is seeking to raise defences which are outside the grounds enumerated in Section 96(2) and as the appellant has not proved that it has reserved any right in that regard in the insurance policy, we cannot entertain those defences. We uphold the respondents' preliminary objection.

9. Counsel for the appellant submitted that in certain reported decisions the prohibition Under Section 96(2) has been limited to proceedings in suits and has not been extended to proceedings before Motor Accidents Claims Tribunals. And by way of illustration he quoted AIR 1968 Mad 436. It is unnecessary to determine the validity of this distinction as this appeal arises out of a suit as did the appeal before the Supreme Court in AIR 1959 SC 1331. We might however point out that the decision in AIR 1968 Mad 436 has been dissented from by the Calcutta High Court in 1971 Acc CJ 156 and that AIR 1974 Mad 318 and AIR 1976 Raj 173 have applied Section 96(2) to Courts.

We confirm the decision and dismiss the appeal. The appellant will pay the costs of the appeal to respondents 1 and 2,


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