JUDGMENT
J.R. Chopra, J.
1. By this reference Under Section 27 of the Workmen’s Compensation Act, 1923, the following questions have been referred for decision of this Court by the Workmen’s Compensation Commissioner, Jodhpur (for short ‘the Commissioner’):
(1) Whether the insurance company can be impleaded as necessary party, as employer, in a case under the Workmen’s Compensation Act, 1923?
(2) Whether the insurance company can be required to satisfy the decree, passed against an employer as judgment-debtor, specially when the insurance company has been once dropped as opposite party?
(3) Whether the notice dated 19-10-1978 to the insurance company fulfills all the requirements of a notice Under Section 96(2) of the Motor Vehicles Act?
(4) Whether all or specific provisions of the Civil Procedure Code are applicable to proceedings under the Workmen’s Compensation Act?
(5) Whether Section 82, Civil Procedure Code is applicable in respect of an insurance company?
2. The facts necessary to be noticed for the disposal of this reference briefly stated are : that one Raju Umedsingh while working in the employment of one Pratap Singh Thekedar, a registered owner of the truck bearing No. RJQ 9513 met his death in a truck accident. He himself was the driver of the truck. The second driver of the truck was one Jagdish who at the relevant time was driving the truck which met with an accident and caused the death of Raju. An application for workman compensation was filed by the legal heirs of Raju Umedsingh against the owner of the truck Pratap Singh and driver of the truck Jagdish as also against the National Insurance Company Ltd., (non-petitioner No. 2), which has insured the truck for third party risk. A notice of this application filed in Form ‘G’ was issued to the non-petitioner No. 2. In pursuance of that, it filed a reply and submitted that it does not come under the definition of an employer and, therefore, for determination of the compensation under the Workmen’s Compensation Act, the National Insurance Co. Ltd. is not a proper and necessary party. The averments made in paras 1 to 6 of the application were, however, denied and it was alternatively pleaded that the insurance policy only covered one driver and not two drivers. It so appears that in view of these submissions, the petitioner requested for the deletion of the name of non-petitioner No. 2 and that request was accepted by the court. However, while deleting the name of non-petitioner No. 2, the court ordered that the claim of the petitioner against non-petitioner No. 2 is dismissed as withdrawn. Be that as it may, after holding the enquiry, the Commissioner came to the conclusion that the death was occurred during the course of employment and, therefore, it decreed the claim of the petitioners against Pratap Singh for a sum of Rs. 16,800/-. The compensation was not deposited by the owner of the truck and, therefore, an application was filed that proceedings for recovery of this amount be initiated against the owner of the truck. The learned Commissioner, therefore, issued a certificate to the Collector, Jodhpur for the recovery of Rs. 16,800/- from the owner of the truck Pratap Singh. In the execution proceedings pending before the Collector, an application was filed by Pratap Singh that this amount should be deposited by non-petitioner No. 2 because it is liable to pay this amount as a judgment-debtor. On this, a notice was issued to the non-petitioner No. 2. It failed to appear before the execution court on a number of hearings but later, when it was asked to deposit the amount, it filed certain applications which were decided by the Commissioner and in deciding those applications, these questions have been raised by the learned Commissioner for being referred to this Court for decision.
3. I have heard Mr. S.R. Bhandari, learned Counsel for the petitioner, Mr. B. Advani for non-petitioner No. 1 and Mr. B.L. Mahesh-wari for non-petitioner No. 2.
4. Section 96(1) of the Motor Vehicles Act provides that if after a certificate of insurance has been issued Under Sub-section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 being a liability covered by the terms of the policy is obtained against any person insured by the policy then notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy the insurer shall subject to the provisions of this section pay to the person entitled to the benefit of the 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 any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. It is, therefore, clear that any claim which has been decreed against an employer and if that claim relates to a policy issued by the insurance company then the insurance company is liable to pay that amount as a judgment-debtor to the extent aforesaid. Section 96(2) of the Act provides that 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 proceedings is so given shall be entitled to be made party thereto and to defend the action on any of the statutory grounds mentioned in Clauses (a) to (c) of Section 96(2) of the Act, The insurance company, however, did not prefer to do so.
5. It is nowhere provided that the petitioner should make the insurance company a party to the proceedings instituted by him, in a claim preferred under Workmen’s Compensation Act. What is required by Section 96(2) of the Act is that a notice of such claim is to be given to the company and if the company so prefers, it can insist for becoming a party. That requirement of the law has been fulfilled in this case because in this case, not only the insurance company was made a party but it was also issued a notice by the court and after the notice was received by the insurance company, the insurance company claimed in the reply filed by it that it is not a necessary or a proper party. In this view of the matter, even if the petitioners abandoned their claim against the insurance company, it hardly matters because the essential requirement of the Act is that the insurance company must have a notice of the proceedings from the court before it is called upon to honour its claim under the policy as a judgment-debtor. That requirement of law has been fulfilled and hence, simply because the petitioners requested for the deletion of the name of the insurance company from the array of non-applicants hardly affects the liability of the company to pay the amount on behalf of the insured judgment-debtor. That liability arises on account of the responsibility of the insurance company to reimburse the employer judgment-debtor on account of the terms of a validly subsisting insurance policy in favour of the employer.
6. The issuance of notice Under Section 96(2) of the Motor Vehicles Act has been made obligatory only to ensure that the insurance company may be informed of such proceedings being taken against the insured employer so that it may be offered with an opportunity to get itself impleaded as a party if it so desires or elects and if it applies to become a party, the court is obliged to implead him as a party and after becoming a party, the insurance company can contest the claim on the basis of statutory defences available to it Under Clause (a), (b) and (c) of Section 96(2) of the Act. In these proceedings, the direction of the court that the claim of the petitioners against the insurance company is, therefore, dismissed as withdrawn was unnecessary surplusage The court need not have issued such a direction because what was prayed for by the applicant was that the name of the insurance company may be deleted from the array of the non-petitioners. That prayer does not mean that the petitioner has abandoned his claim against the insurance company for any liability which may arise against the insurance company under the Act and hence, the argument of Mr. Maheshwari that as the petitioners have relinquished their claim against the insurance company, it has no legs to stand. In this respect, Mr. S.R. Bhandari, learned Counsel for the petitioner, has placed reliance on a decision of this Court in Kamla Devi v. Navin Kumar 1973 ACJ 115 (Rajasthan), wherein late Jagat Narayan, J. (as he then was) has held that a notice should be issued to the insurer and if it appears, it should be made a party. The order under the Workmen’s Compensation Act will be passed against the employer, but by virtue of Section 96(1), the insurer will be treated as a judgment-debtor for purposes of making recovery of compensation. With respect, I may say that if the insurer appears after the notice, it is entitled to be made a party to the proceedings under the Act, if it so elects. What is obligatory on the court is to issue it a notice of the proceedings. It is not obligatory on the court to implead the insurer as a party unless the insurer himself elects to do. The law only provides that it is entitled to be made a party and to defend the action on any of the grounds mentioned in Clauses (a) to (c) of Section 96(2) of the Act. It is thus clear that it is not obligatory on the part of the court to make the insurance company a party. With this modification, I respectfully follow the dictum laid down by Jagat Narayan, J., in Kamla Devi v. Navin Kumar 1973 ACJ 115 (Rajasthan).
7. Nothing has been said before me about the validity of the notice issued by the Commissioner to the insurance company. It was also not disputed that the insurance company is a corporation and hence, it cannot be said that it is State or it is Union of India. Learned Counsel appearing for the parties have submitted that the decision of the case will not require the decision of the fact whether all or special provisions of the Code of Civil Procedure are applicable to the proceedings under the Workmen’s Compensation Act.
8. In this view of the matter, I answer this reference as under:
(1) It is not essential for the petitioner to implead the insurance company as a necessary party in the proceedings under Workmen’s Compensation Act in which they claim compensation against the employer or if the employer is insured then together with him against the insurance company. The insurance company is not an employer and, therefore, it need not be impleaded as a necessary party to the proceedings in which the claim for compensation is made against the employer. The legal requirement is that the court must issue a notice to the insurance company and the insurance company is entitled to get itself impleaded as a party after the receipt of such a notice by it from the court.
(2) The insurance company is obliged to satisfy the decree passed against the employer as a judgment-debtor even if the petitioners have prayed for the deletion of its name from the array of the parties.
(3) The notice dated 19-10-1978 issued to the insurance company by the Commissioner fulfills all the requirements of the notice Under Section 96(2) of the Act.
(4) The decision of this question is not at all necessary and, therefore, I refrain from answering this question.
(5) Section 82, Civil Procedure Code, provides that if the decree is passed against the Union of India or a State, as the case may be, by the public officer, such decree shall not be executed except in accordance with the provisions of Sub-section (2) of Section 82, Civil Procedure Code. The insurance company is not the Union of India nor can it be termed to be a State and, therefore, Section 82, Civil Procedure Code, is not applicable to the insurance company because the insurance company is a corporation still governed by the Insurance Act.
9. The reference is answered accordingly. Let the record of the case along with a copy of the judgment be sent to the Commissioner under the Workmen’s Compensation Act for passing necessary orders in the case.