Skip to content


Phonix Assurance Co. Ltd. Vs. Shushilaben Shantilal Mehta and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Insurance
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1307 of 1968
Judge
Reported in1974ACJ326; AIR1974Guj157; (1974)15GLR231
ActsMotor Vehicles Act, 1939 - Sections 96 (2) and 110-A
AppellantPhonix Assurance Co. Ltd.
RespondentShushilaben Shantilal Mehta and ors.
Appellant Advocate Kusum M. Shah, Adv.
Respondent Advocate G.M. Desai,; N.J. Mehta, Advs. and;Amicus curiae
Cases ReferredHukam Chand Insurance Co. Ltd. v. Subhashini Roy
Excerpt:
.....(2) - application dismissed - revision petition filed under section 115 - insurer entitled only to defend action on grounds mentioned in section 96 (2) - held, insurer rightly refused permission to cross examine insured on merits. - - ' 3. miss kusum shah, appearing for the petitioner (insurer) has urged that the position referred to, by the claims tribunal may obtain good in case such a claim was made before the court. but in the proceedings before claims tribunal the insurer is a party as the amount payable by it has to be clearly specified in the award -as required by section 110-b. 'it is to be noted, that even after the aforesaid amendment under section 2 (a) of section 110-c, the insurer is entitled to contest the claim on all or any of the grounds that are available to the,..........the petitioner (original opponent no. 3)- insurer -against the order passed by the motor accident claims tribunal, ahmedabad, dismissing the application, ex. 74, filed by the petitioner claiming that it being made a party to motor accident claims tribunal application no. 57 of 1967 by opponent no. i (injured) and others, it has a right to cross-examine the witnesses examined not only on the grounds mentioned in sub-section (2) of section 96 of the motor vehicles act, 1939 (which will be hereinafter referred to as 'the act'), but on all grounds on the merits as it could be done by an assured (insured) opponent no. 1 in the petition is an injured person, opponent no. 2 is her husband. opponent no. 3 is her son. opponent no. 4 is the daughter and opponent no. 5 is the scooter-driver who.....
Judgment:

1. This is a revision petition filed under Section 115 of the Civil Procedure Code by the petitioner (original opponent No. 3)- Insurer -against the order passed by the Motor Accident Claims Tribunal, Ahmedabad, dismissing the application, Ex. 74, filed by the petitioner claiming that it being made a party to Motor Accident Claims Tribunal Application No. 57 of 1967 by opponent No. I (injured) and others, it has a right to cross-examine the witnesses examined not only on the grounds mentioned in sub-section (2) of Section 96 of the Motor Vehicles Act, 1939 (which will be hereinafter referred to as 'the Act'), but on all grounds on the merits as it could be done by an assured (insured) Opponent No. 1 in the petition is an injured person, opponent No. 2 is her husband. Opponent No. 3 is her son. Opponent No. 4 is the daughter and opponent No. 5 is the scooter-driver who was driving the scooter, which was responsible for causing injury to the injured, and opponent No. 6 is the owner of the scooter.

2.The Claims Tribunal has reached the conclusion that the fact that the injured had made the insurer a party to the application itself, would not make any difference in the -position in this behalf, Whether the insurer is given a notice about such a Proceeding as contemplated by Section 96 of the Act or it is made a party, would not make any difference. In view of the Provisions contained in sub sections (1), (2) and (6) of Section 96 of the Act, if they are read together, it is clear that the law does not recognise a general right to defend the action in favour of the Insurer. The right to defend, which is given to the Insurer is only a restricted right and it can defend the action on the grounds specified in sub-section (2) of Section 96 of the Act. In British India General Insurance Co. v. Itbar Singh, AIR 1959 SC 1331, their Lordships have observed at page 1335 in connection with this restricted right as under:

'The statute has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to -avoid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore to the statute for reasons' of hardship. We are furthermore not convinced that the statute causes any hardship. First, 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 assured can 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.'

After quoting these observations of the Supreme Court, it is observed by the Claims Tribunal:

'Now, in the present case, even Mr. J. M. Shah for the insurer accepted the position that the insurer does not seek to defend this action in the name of the assured. In fact, the assured himself is contesting this action along with the first opponent, who is said to have caused this accident. The insurer has merely adopted the written statement of the assured and the first opponent. And if that is the position in the present case, then it is clear that the insurer can have no general right to defend the action. It is also not in dispute that there is no defence to this action on any of the grounds specified in sub-section (2) of Section 96. Mr. Shah's sole reliance upon his right to cross-examine the first petitioner in the present case is on the fact that the insurer has been imp leaded as an opponent., To my mind, when the statute itself denies any such right and when the statute itself lays down the manner in which an action of which notice is given to the insurer can be defended, no such right, as contended for and on behalf of the insurer, is available.'

3. Miss Kusum Shah, appearing for the petitioner (insurer) has urged that the position referred to, by the Claims Tribunal may obtain good in case such a claim was made before the Court. In the instant case, the claim is made before the Motor Accident Claims Tribunal. Section 110 of the Act empowers the State Government to constitute such Claims Tribunal and such a Claims Tribunal has been constituted by the State Government at Ahmedabad. Section 110-A deals with application for compensation. Section 110-B deals with award of the Claims Tribunal. Section 110-C deals with procedure and Powers of Claims Tribunals, Section 110-E reads:

'When any money is due from an insurer under an award, the Claims Tribunal may, on an application made to it by the person entitled to the money, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue.'

Section 110-F reads:

'Where any Claims Tribunal has been constituted for any area. No civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.'

In view of all these provisions, it has been contended by Miss Shah that a clear distinction is made between the Court and the Claims Tribunal. Section 96 of the Act refers to 'court' and not to 'Claims 'Tribunal'. It is, therefore, urged by her that such a restricted right to defend the action could be availed of, by the insurer only if the case arose before the Court and not in the case if it arose before the Claims Tribunal. In support of her submission, she has relied upon the decision of a Division Bench of the Madras High Court in K.Gopalakrishnan V. Sankara Narayanan, AIR 1968 Mad 436. That decision, no doubt, supports her submission. It is observed:

'The Claims Tribunal has no power to restrict the rights of the insurance company to cross-examine the claimant and his witnesses on its construction of, Section 96 of the Act. Section 96 of the Act was not intended to govern the enquiry before a Claims Tribunal. Section 96 contemplates proceedings in a Court and not a proceeding before a Tribunal. It contemplates notice being given to the insurer which may be before or after judgment is obtained against the person who had effected insurance for third Party risk. The insurer is no doubt entitled to be made a party and defend the action on the grounds mentioned in that section. But in the proceedings before Claims Tribunal the insurer is a party as the amount payable by it has to be clearly specified in the award -as required by Section 110-B. Hence the insurance companies who are mainly responsible to satisfy the claims of third parties and who are Parties to the, proceedings before the Claims Tribunal and who are entitled to cross-examine cannot be restricted to the defences specified in Section 96 (2) of the Act.'

A Division Bench of the Bombay High Court, in Abdulkadar Ebrahim. v. Kashinath Moreshwar, AIR 1968 Bom 267, has observed:

'Section 96 of the Motor Vehicles Act provides in clear terms that in an application for damages under the Motor Vehicles Act, the insurance company need not be made party by the claimant. Under sub section (2) it is the duty of the Court to issue a notice of the proceeding to the insurance company and on such notice being issued to it, t he insurer is entitled to be made a party and defend the action only on the ground that the policy stood cancelled on grounds stated in the sub section. It is only on the limited grounds that the insurer is entitled to, contest the proceeding.'

The decision of the Supreme Court, AIR 1959 SC 1331 referred to, by me above, was relied upon by the Division Bench of the Bombay High Court. It is observed: 'It is wrong to allow the counsel for Insurance Company to cross-examine the witness on the merit of the dispute between the insured and the applicants.'

4. Miss Shah tried to distinguish that case relied upon by Mr. N. J. Mehta, appointed as amicus curiae, on the ground that the Bombay High Court has not considered the aspect of the case which she has pleaded before me and which has been considered by the Madras High Court in the-aforesaid decision. It is true that the Bombay High Court has not considered this argument which has been canvassed by her before me.

5. A Division Bench of the Calcutta High Court has considered this very question in Hukam Chand Insurance Co. Ltd. v. Subhashini Roy, 1971 Acc CJ 156 (Cal). The facts in that case were as under:

'In an application for compensation filed under Section 110-A of the Motor Vehicles Act, 1939, the Claims Tribunal passed an award and directed the insurance company with which the vehicle was insured, to pay the amount awarded. The insurance company filed an appeal against the award. The claimants contended that the insurance company could challenge the award only upon such grounds as were specified in Section 96 (2). The appellant contended that this restriction was applicable only in case of suits for compensation before a Court and not to proceedings before a Claims Tribunal.

It was held dissenting from the view expressed by the Madras High Court in Gopalakrishnan's case, AIR 1968 Mad 436 (supra)) whenever a Claims Tribunal is set up for any area the word 'Court' occurring in Section 96 (2) must be interpreted to mean 'Claims Tribunal' because if the contention raised by the appellant was upheld it would lead to anomalous and absurd results. An insurer was entitled to defend an action only on the limited grounds specified in clauses (a) to (c) of Section 96 (2), even in case of proceedings before a Claims Tribunal constituted under Section 110 of the said Act. Accordingly, it was not open- to the appellant insurers in the instant appeal to take up any grounds other than those specified in the above section''

It is further observed:

'It is true that normally the Court will not introduce or substitute or add any word in -a section which is not there but it is also a settled rule of construction that the Court will lean in favour of reading a section or sections with appropriate changes for giving effect to the smooth and harmonious working of the system and for fulfillment of the purposes of the Act,'

6. A Division Bench of this Court, in First Appeal No. 1210 of 1969, decided on 7 and 8-12-1971 (Guj), independently of any decision, after referring to the relevant provisions to which my attention was drawn by Miss Shah, has taken a similar view. After quoting the observations made by the Supreme Court in AIR 1959 SC 1331 (supra), and after referring to Section 96 of the Act, and the observations made by the Madras High Court in Gopalakrishnan's case, AIR 1968 Mad 436 (supra) on which reliance was placed by the insurer and after referring to Sections 110 to 110-F of the Act, it is observed:

'... If we refer the amended Sections 110 to 110-F, there is nothing in the provisions of the said sections either for making the insurer a party or that the insurer is entitled to take all defences in any adjudication -proceeding before the Claims Tribunal for compensation. Section 110 provides for constituting Claims Tribunals by the State Government concerned for adjudication upon claims involving the death or bodily injury arising out of use of motor vehicles.' After referring to the provisions of those sections, it is observed: ' ... It is to be noted, that even after the aforesaid amendment under Section 2 (a) of Section 110-C, the insurer is entitled to contest the claim on all or any of the grounds that are available to the, person against whom the claim has been made if there is collusion between the -person making the claim and the person against whom the claim is made or the person against whom the claim is made has failed to contest the claim. Even after the amendment the insurer is allowed to contest the claim on all or any of the grounds that are available to the insured against whom the claim has been made only in cases provided in the said sub-section. The amendment on the contrary assumes that ordinarily the defences available to the insure are those under sub-section (2) of Section 96 and no other defences are available to the insurer. Therefore, the insurer is not entitled to raise any defence other than that mentioned in subsection (2) of Section' 96 of the Act. In an appeal filed by the insurer against award, the insure r is entitled to raise contentions which are covered by Section 96 (2)'.

In view of this decision of the Division Bench of this Court, which is binding on me, I need not dilate further on this point. The Claims Tribunal was, therefore, fully justified in reaching the conclusion that the insurer in the instant case is entitled only to defend the action on the grounds mentioned in Section 96 (2) of the Act. Insurer is, therefore, rightly refused the permission to cross examine the injured on merits. The revision -petition, therefore, fails.

7. Mr. N. J., Mehta, who appeared as amicus curiae, has rendered valuable assistance to the Court. Revision petition is dismissed. Rule is discharged. Petitioner to pay the costs of opponents Nos. 5 and 6 in this revision petition.

8. Rule discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //