{"id":109074,"date":"1959-05-11T00:00:00","date_gmt":"1959-05-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/british-india-general-insurance-vs-captain-itbar-singh-and-others-on-11-may-1959"},"modified":"2018-11-28T20:35:12","modified_gmt":"2018-11-28T15:05:12","slug":"british-india-general-insurance-vs-captain-itbar-singh-and-others-on-11-may-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/british-india-general-insurance-vs-captain-itbar-singh-and-others-on-11-may-1959","title":{"rendered":"British India General Insurance … vs Captain Itbar Singh And Others on 11 May, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
British India General Insurance … vs Captain Itbar Singh And Others on 11 May, 1959<\/div>\n
Author: L Slesser<\/div>\n
           PETITIONER:\nBRITISH INDIA GENERAL INSURANCE CO., LTD.\n\n\tVs.\n\nRESPONDENT:\nCAPTAIN ITBAR SINGH AND OTHERS\n\nDATE OF JUDGMENT:\n11\/05\/1959\n\nBENCH:\n\n\nACT:\nMotor  Car  lnsurance--Suit  for  damages  by  third  Party-\nInsurance  company added defendants- Defence  if other\tthan\nstatutory  available-Interpretation of--Motor Vehicles\tAct,\n1939 (4 of 1939), SS. 95, 96,\n\n\n\nHEADNOTE:\nA  suit\t claiming damages, for negligent driving  was  filed\naginst\tthe  owner of a motor car, who was  insured  against\nthird  party risks.  The insurer, was subsequently added  as\ndefendant  to the suit under s. 96(2) of the Motor  Vehicles\nAct, 1939. it contended that the defence available to it was\nnot restricted to the grounds enumerated in s. 96(2) Of\t the\nAct, but that it was entitled to take all defences including\nthose on which the assured himself could have relied for his\ndefence,  subject only to the restriction that it could\t not\nin view of S. 96(3) Of the Act rely on the conditions of the\npolicy as a defence.\nHeld,  that an insurer made a defendant to the action  under\nS.  96(2)  of  the Act was not entitled to defend  it  on  a\nground not specified in that section.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  413,\t and
\n414 of 1958.\n<\/p>\n
Appeals\t from the order dated April 27, 1955, of the  Punjab
\nHigh Court in Civil Revisions Nos. 81-D of 1953 and 96-D  of
\n1953 respectively.\n<\/p>\n
1959 April 21, 22, 23, 24.-C. K. Daphtary  Solicitor General
\nfor  India, Ram Behari Lal, D. K. Kapur and Sardar  Bahadur,
\nfor  the  appellants.  The question in the  present  appeals
\nturn  around  S. 96 of the Motor Vehicles  Act,\t 1939.\t The
\npurpose\t of  sub-s. (2) of S. 96 is to state  those  grounds
\nbased  on the policy of insurance on which the\tinsurer\t may
\nrely  for  his\tdefence.   Sub-section\t(3)  makes   certain
\nconditions  of\tthe policy of no effect as against  the\t 3rd
\nparty.\tBoth Sub-ss. (2) and (3) are concerned only with the
\nconditions of the policy.  They should not be interpreted so
\nas to oust other defences the insurer may wish to take\te.g.
\nthat  there  was  no  accident or  that\t the  plaintiff\t was
\nnegligent  or  that there was contributory  negligence\tetc.
\nWhen a person is joined as a party he has the right to\ttake
\nall defences permissible in law.\n<\/p>\n
[Subba Rao, J.-Did the insurer have a right to be joined  as
\na  party, apart from the statute ? Could he be joined  under
\nOrder 1, Rule 10, of the Code of Civil Procedure ?]
\n169<\/span>
\nI  am not basing my case on Order 1, Rule to of the Code  of
\nCivil Procedure.  Apart from the statute, the insurer  would
\nnot be liable to the third party, but only to the assured.
\n[Das,  J.-Is  it  not correct that  the\t statute  gives\t the
\ninsurer\t a  right to be joined as a party which he  did\t not
\nhave previously ? If so, the right cannot be extended beyond
\nwhat the statute gives.]
\nIt is true that the statute gives a right to the insurer  to
\nbecome a party to the action by the injured person which  he
\ndid  not have previously, but the real question\t before\t the
\ncourt  is whether sub-s. (2) limits the right to  defend  on
\nthe  grounds stated in that sub-section.  In my\t submission,
\nsubS. (2) exhausts only the defences based on the conditions
\nof the policy which the insurer may wish to take.  If it was
\nintended that these were to be the only defences open to the
\ninsurer\t the word ” only ” should have been used instead  of
\nthe  words  ”  any of ” before the  words  ”  the  following
\ngrounds.”  What the legislature meant was that\tthe  insurer
\ncould  defend the action ” also ” on the grounds  stated  in
\nsub-s. (2) in addition to other grounds.  If the court finds
\nthe  section  is clear no words can be\tadded.\t However,  I
\nsubmit\tthe section is ambiguous.  It can mean\teither\tthat
\nthe insurer can take other defences or that he is limited to
\nthe  matters  stated  in  sub-s.  (2).\t The  Court   should
\ninterpret  the: section to give effect to the  interests  of
\njustice.   The\tinsurer\t is  made  liable  to  satisfy\t the
\njudgmental  It would be an extreme hardship if he  were\t not
\nallowed\t to  defend the action on merits.   Apart  from\t the
\nsituations  coming  within sub-s. (2) the insurer  would  be
\ncondemned unheard.  The legislature could not have  intended
\nsuch a result.\tEven the cases which hold that the  defences
\nof  the\t insurer are limited to those stated  in  subS.\t (2)
\nrecognise that this causes hardship.  I.L.R. 1953 Bom.\t109,
\nI.L.R. 955 Bom. 39 and I.L.R. 1955 Bom. 278.  In those cases
\nthe  hardship  was  sought to be overcome  by  allowing\t the
\ninsurer to defending the name of the insured.  I do not\t say
\nthat  this  latter procedure is correct, but it\t shows\tthat
\nthere is hardship.\n<\/p>\n
[Sarkar, J.-How can that be done ? How can the -,insurer  be
\nallowed\t to defend in the name of the insured?\tHow  is\t the
\nrecord to be kept ? There is no provision under which it can
\nbe  done,  not\teven under s. 1 5 1 of\tthe  Code  of  Civil
\nProcedure.]
\nProbably  not.\tBut that question does not arise for  deter-
\nmination  in  this appeal.  The hardship recognised  by\t the
\nBombay cases can be avoided if the interpretation of sub-
\nS.   (2) suggested by me is accepted.\n<\/p>\n
22<\/span>
\n170<\/span><\/p>\n
[Das, J.-How is that interpretation possible in the face of
\nsub-s. (6) ?]
\nSub-sectioii  (6) only prohibits the insurer  from  avoiding
\nliability in a manner other than that stated in sub-s.\t(2).
\nThe  manner  of avoiding liability stated in sub-s.  (2)  is
\nthat  the  insurer  should  apply,  to\tbe  made  a   party.
\nConsequently, the insurer can avoid liability, only by being
\njoined\tas a party.  The word ‘ manner ‘ in the\t context  of
\nsub-s.\t(6)  refers only to the procedure  the\tinsurer\t may
\nfollow,\t not  to the grounds the insurer may wish  to  take.
\nHence  the insurer can avoid liability only by being  joined
\nas a party, but can take any defences, he chooses  including
\nthose  stated  in sub-s.Otherwise the third  party  and\t the
\nassured\t may collude and a judgment may be passed which\t the
\ninsurer\t would\tbe bound to satisfy without having  had\t ‘an
\nopportunity  of\t defending himself.  Or the case may  go  by
\ndefault against the assured or may be compromised.  The real
\nparty  affected is the insurer and yet he is given no  right
\nto  be heard except on the limited grounds stated in  sub-s.
\n(2).  The assured is only a nominal party and is not  likely
\nto  be interested in contesting the case, as the decree\t has
\nto  be satisfied by the insurer.  The legislature could\t not
\nhave  intended\tsuch a result.\tIt is  contrary\t to  natural
\njustice\t  that\ta  party  likely  to  be  affected  by\t the
\nproceedings should not be heard on the merits.
\nT.   P.\t S. Chawla (with him, Dipak Datta Choudhry) for\t the
\nrespondent.   Chapter VIII of the Motor Vehicles Act,  1939,
\nis  based on various English Statutes (See Report  of  Motor
\nVehicles  Insurance Committee 1936-37 known as the  Roughton
\nCommittee).   For  a  proper appreciation of  s.  96  it  is
\nnecessary to consider the historical development of the\t law
\nrelating to compulsory third party insurance in England.
\nBefore 1930, there, was no system of compulsory insurance in
\nrespect of third party risks in England.  In the event of an
\naccident  the  injured third party had a right\tto  sue\t the
\nmotorist and recover damages.  But if the motorist was a man
\nof straw, the injured party was in practice unable to obtain
\ncompensation.\tThis  was  the situation  the  various\tRoad
\nTraffic Acts were designed to avoid.\n<\/p>\n
Even  in those cases in which the motorist had taken out  an
\ninsurance  policy,  difficulties  arose in the\tway  of\t the
\ninjured\t third party recovering compensation.\tThe  injured
\nthird  party  had  no direct right  of\taction\tagainst\t the
\ninsurer.  In the event of the insolvency of the assured, the
\ninjured third party would rank a,; an ordinary creditor\t and
\nwould not receive complete satisfaction for his decree.\t The
\nThird Parties Rights
\n\t\t\t    171<\/span>
\nAgainst\t Insurers Act, 1930, created a system  of  statutory
\nsubrogation in such cases. (Halsbury, 3rd Edn., Vol. 22, PP.
\n339,  372).   The  provisions of this  Act  have  been\tsub-
\nstantially  reproduced in s. 97 of the Motor  Vehicles\tAct.
\nAs a result the third party can sue the insurer directly  in
\ncases.\n<\/p>\n
Next  the  Road Traffic Act, 1930, introduced  a  scheme  of
\ncompulsory insurance.  Section 35(1) made third party insur-
\nance Compulsory.  Section 94(1) of the Motor Vehicles Act is
\nworded in the Same Way.\t Similarly s. 36 Of the English\t Act
\nis substantially reproduced in s. 9.5 of the Motor  Vehicles
\nAct.  Section 38 of the Act of 1930 made certain  conditions
\nof  the\t policy\t ineffective so far as\tthird  parties\twere
\nconcerned.   The  object was that claims  of  injured  third
\nparties should not fail because the assured had not complied
\nwith  or  committed a breach of certain\t conditions  in\t the
\npolicy.\t (Shawcross on Motor Insurance, 2nd Edn.,  pp.\t219,\n<\/p>\n
277).\n<\/p>\n
But the Act of 1930 did not go far enough.  In 1934 another
\nRoad  Traffic  Act  was passed the object of  which  was  to
\ncompel\tInsurers to satisfy judgments obtained\tagainst\t the
\ninsured\t (Shawcross  ibid P. 271).   This  Act\tcontemplated
\nthree  separate\t actions between the various  parties.\t The
\nfirst  action  was by the injured third\t party\tagainst\t the
\nassured.   By s. 10(1) of that Act, which is  reproduced  in
\ns.  96(1),  the insurer was obliged to\tsatisfy\t the  decree
\nagainst\t the, assured.\tIf the insurer failed to do so,\t the
\nthird party had a right of action against the insurer, based
\non the judgment Obtained against the assured. (Shawcross, p.
\n296 ; Halsburry 3rd Edn., Vol. 22,PP. 374-5).  This was\t the
\nsecond\taction.\t  It  is doubtful if  even  the\t defence  of
\ncollusion would be open to the insurer in the second action.
\n(Sliawcross, P. 296).  Then S. 10(2) of the Road Traffic Act
\nof 1934, is substantially reproduced in s. 96(2)(a).   By
\nthis  provision\t in certain events  the\t insurers  liability
\nceases.\t  To appreciate s. 96(2)(b) it is necessary to\tkeep
\nin  mind s. 38 of the Road Traffic Act of 193o and S. 12  of
\nthe  Road Traffic Act of 1934.\tBoth these  letter  sections
\nmade  certain conditions of the policy\tineffective  against
\nthird  parties.\t Whilst drafting the Motor Vehicles Act\t the
\nlegislature  reversed  the  manner  of\tstatement.   In\t  s.
\n96(2)(b)  the legislature has stated affirmatively what\t are
\nthe  conditions on which the insurer can rely as  against  a
\nthird party.  This was done to avoid doubt and uncertainly.
\nThen  s.  10(3)\t of the Road Traffic  Act,  1934,  gave\t the
\ninsurer\t a  right to obtain a declaration that\the  was\t not
\nliable\t on   the   policy   due   to\tnon-disclosure\t  or
\nmisrepresentation as to
\n172<\/span>
\na material fact.  In this action a notice had to be sent  to
\nthe  third party injured who was given a right to join as  a
\nparty  and  oppose the action.\tThis was the  third  action.
\nThe same result is achieved by s. 96(2)(C).  What s. 96 does
\nis to roll up into one these three actions which occurred in
\nEnglish\t Law.\tThis saves time and money  and\tenables\t the
\nthree  parties involved to have their respective rights\t and
\nliabilities settled in one action.  But s. 96 does not\tgive
\nany  party greater rights than it would have had in  English
\nLaw.  At common law the insurer had no right to intervene in
\nthe  action  by the injured party against  the\tinsured\t and
\noppose the claim on merits, e.g., that there was no accident
\nor negligence or that there was contributory negligence etc.
\nThe  insurer could avoid liability only by showing  that  he
\nwas  not liable for some reason connected with the  -policy.
\nThis  is the right which sub-s. (2) preserves.\tIt does\t not
\ngive  additional  rights to the insurer over what  he  would
\nhave  had  at common law or in accordance with\tthe  English
\nStatutes.  On the interpretation suggested by the Solicitor-
\nGeneral\t the insurer would get a right he never had  before.
\nThis  is contrary to the object of Chapter VIII which is  to
\nprotect\t the injured third party and not the  insurer.\t The
\ninsurer\t is  neither a necessary nor a proper  party.  under
\nOrder 1, Rule 10, Code of Civil Procedure, in the action  by
\nthe injured third party against the assured.
\n[Subba Rao, J.-You need not deal with Order 1, Rule 10, Code
\nof Civil Procedure, as the Solicitor-General has not  relied
\non it.]
\nThere is no ambiguity in s. 96(2).  The sub-section  clearly
\nspecifies  the\tdefences open to the insurer and it  is\t not
\npermissible  to add to those defences.\tThis is\t put  beyond
\ndoubt by sub-s. (6).  It prevents the insurer from  avoiding
\nliability  in a ` manner’ other than that stated  in  sub-s.
\n(2). The ‘manner’ provided by sub-s. (2) is by joining as  a
\nparty  and  defending on the grounds stated There’  fore,  ‘
\nmanner’\t refers to both the procedure and the  grounds.\t  To
\nhold  otherwise is to make sub-s. (2) unnecessary.   If\t the
\nLegislature  intended  that the insurer should\tbe  able  to
\ndefend on grounds other than those stated in sub-s. (2)\t all
\nit  needed to say was that the insurer would be entitled  to
\njoin  as a party.  As sub-s. (2) specifies the defenses\t the
\nintention  was\tclearly\t to  limit  the\t insurer  to   those
\ndefences.\n<\/p>\n
[Subba\tRao,  J.-Suppose  the injured third  party  and\t the
\ninsured\t collude  or judgment is allowed to go\tby  default,
\ncould not the insurer have the judgment set aside or bring a
\nsuit to,have it set aside ?]
\n173<\/span>
\nIn. my submission even a suit for this purpose is barred  as
\nthat would contravene sub-s. (6).  Such a suit would  enable
\nthe  insurer to avoid liability in a.’ manner’ which  sub-s.
\n(6) does not allow.\n<\/p>\n
There  is  no hardship caused by giving full effect  to\t the
\nsection\t as it stands.\tThe possibilities of  collusion\t are
\nremote,\t and indeed illusory. (Shawcross, P. 296).   By-  s.
\n96(3)  the  insurer  is given a right to  recover  from\t the
\ninsured any sums paid, by him which he was not bound to\t pay
\ndue  to\t breaches  of conditions in the\t policy,  but  which
\nconditions  have been made ineffective as against the  third
\nparty.\t Sub-section  (4)  of the  same\t section  gives\t the
\ninsurer\t the  right to recover from the assured\t the  excess
\nwhich  he  is  made  to pay by virtue of  s.  95,  over\t his
\nobligations  in the policy.  The judgment is  still  against
\nthe  assured who is the party primarily liable.\t It is\tonly
\nmade executable against the insurer.  Apart from this, by s.
\n1(3)  of the Motor Vehicles Act, 1939, the legislature\tgave
\ninsurers  six years to insert provisions in  their  policies
\nand take such other steps to protect themselves against\t the
\nassured\t committing  them  to  liability  as  they   thought
\nfit.Most  insurers insert the control of proceedings  clause
\nin the policy (Halsbury, 3rd Edn., VOl. 22 p. 338).  Someone
\nhad  to\t bear the loss ultimately, and the  legislature\t has
\ntried  so far as possible to ensure that the loss  falls  on
\nthe  person  causing the accident.  But, if the\t insured  is
\nimpecunious the choice is between allowing the loss to\tfall
\non  the injured party or the insurer.  The  legislature,  in
\nits  wisdom has provided that in such a situation  the\tloss
\nshall  fall on the insurer.  It is a part of  the  insurer’s
\nbusiness  to  suffer  such  losses  and\t when  entering\t the
\ncontract  of  insurance\t he contemplates that  he  might  be
\ncalled upon to pay the loss.\n<\/p>\n
Now,  the Bombay cases referred to by the Solicitor  General
\nare right in so far as they hold that the insurer can defend
\nonly  on the grounds stated in sub-s. (2).  Those cases\t are
\nwrong in proceeding on the assumption that there is hardship
\ncaused\tto  the insurer by this view.  They are based  on  a
\nmisunderstanding  of  the  cases of  Windsor  v.  Chalcraft,
\n[1939]\t1 K.B. 279 and Jacques v. Harrison, 12\tQ.B.D.\t136,
\nand  on\t appeal, 12 Q.B.D. 165.\t It was not noticed  in\t the
\nBombay cases that the provisions of Indian Law equivalent to
\nS.  24(5)  of  the judicature Act and  Order  27,  Rule\t 15,
\nR.S.C.,\t were not as wide as the English provisions.   Order
\n9,  Rule  7,  Code of Civil Procedure,\tallows\tan  ex-parte
\ndecree to be set aside only at the instance of the defendant
\nwhilst\tthere is no such limitation in 0. 27, R. 15,  R.S.C.
\nThere, is
\n174<\/span>
\nno  procedure  known  to law by which  the  insurer  can  be
\nallowed\t to defend in the name of the insured.\tThis  cannot
\nbe done under s. 151, C.P.C. as it would contravene s. 96(6)
\nand allow the insurer to avoid liability in a ‘manner’ other
\nthan  the  one allowed.\t The Bombay cases have\tnot  noticed
\nsub-s.\t(6) at all.  The procedure stated in those cases  is
\nuntenable.\n<\/p>\n
[Sarkar, J. -Are we called upon to decide that point in this
\ncase  ? Apparently there is a revision petition\t pending  in
\nthe  High  Court  between the same  parties  in\t which\tthat
\nquestion awaits determination.\tShould we express an opinion
\non that point ?]
\nThe  Solicitor-General\thas  adopted  it  as  apart  of\t his
\nreasoning He has said that if the insurer can take all the
\ndefences in the name of the insured, that is an additional
\nreason why sub-s. (2) should not be interpreted as to limit the
\ndefences available to the insurer. I wants show that view is
\nwrong. (The Court disallowed this branch of the argument).
\nIn  the case reported as Windsor v. Chalcraft [1939] 1\tK.B.
\n279,  the dissenting judgment of Slesser, L.J.,\t states\t the
\ncorrect position.  The judgment of Greer, L.J., show-,\tthat
\nlie was in considerable doubt as to the correct position  in
\nlaw,  but  felt\t himself  bound\t by  the  earlier  judgments
\nreported  in jacques v. Harrison, 12 O.B.D. 165.   Mckinnon,
\nL.J.,  proceeded on the footing that the assured was only  a
\nnominal\t defendant.   As  already  submitted  this  is\t not
\ncorrect.   Even\t in English Law the  insurer  could  recover
\nagainst the assured. (Halsbury, 3rd Edn,, Vol. 22, PP.\t374,
\n379, 385).  The case of Windsor V. Chalcraft was decided  in
\nMay  1038.  The Motor Vehicles Act was passed  in  February,
\n1939.\tIt  is\tlegitimate to assume that  the\tpersons\t who
\ndrafted the Act were aware of this case.  I submit that\t the
\nreal purpose of sub-s. (6) was to give effect to the view of
\nSlesser, L.J.\n<\/p>\n
[Das, J.-That is rather far fetched.]
\nI  submit it is not.  Even in England the, view of  Slesser,
\nT..J.,\tseems  to have been  approved.\t Subsequent  English
\ncases  show that the principle of Windsor v.  Chalcraft,  is
\nnot  to be extended.  See Murfin v. Ashbridge [1941]  1\t All
\nE.R.231.  It  was not necessary to expressly over  rule\t the
\ncase  of Windsor v. Chalcraft as in 1946 the Motor  Insurers
\nBureau\twas  set  tip in England, as a result  of  which  an
\ninsurer\t is bound to satisfy a judgment obtained by a  third
\nparty  against\ta,  motorist even if the  motorist  was\t not
\ninsured\t (Halsbury,  3rd Edn., Vol. 22, PP.  382  et.  seq.,
\nShawcross,  ibid, Introduction LXXXVII et. seq.) This  shows
\nhow strong
\n175<\/span>
\nthe  attempt to protect the third party has been.   Actually
\nthe  words  of s. 96(2) and (6) are clear to show  that\t the
\ninsurer\t can take only the defences mentioned in sub-s.\t (2)
\nBut if there be any doubt, a consideration of the historical
\ndevelopment  of the law and the objects to be attained\tputs
\nit beyond doubt that the legislature intended this result.
\nC.   K. Daphtari, in reply.  It is wrong that at common\t law
\nthe  insurer could not be brought in as a party.  At  common
\nlaw  the  guarantor or indemnifier could be  brought  in  by
\nmeans of third party procedure (see\tI.L.R.\t35 All.\t 168
\nand  Halsbury, 3rd Edn., Vol. 18, P. 535 and Gray v.  Lewis,
\nL.R. (1873) 8 Ch. 1035, 1058).\n<\/p>\n
Apart from the common law, the insurer could also be  joined
\nas a party under 0. I, R. 10, Code of Civil Procedure.
\nI  rely\t on  the case of United Provinces  v.  Atiqa  Begum,
\n[1941] A.C. 16.\t A person should be joined as a party if his
\npresence   is  necessary  for  an  effectual  and   complete
\nadjudication.\tOn  this principle the insurer ought  to  be
\njoined as a party, and thus can take all defences.
\nChaula,\t in  reply  : The passage  cited  by  the  Solicitor
\nGeneral\t from  Halsbury,  3rd  Edn., Vol.  18,\tP.  535,  is
\nactually  against  him.\t  The foot note (e)  shows  that  at
\ncommon law the insurer could not be joined as a party to the
\naction by the insured.\tThird party procedure did not  exist
\nat Common Law.\tEven under third party procedure in  England
\nit  is doubtful whether this could be done  (Shawcross,\t pp.
\n150-151).  In any case there is no third party procedure  in
\nPunjab.\t  The  cases 35 All. 168 and (1873) L.R. 8  ch.\t  A.
\n1035 are also against him.\n<\/p>\n
The  insurer  is neither a necessary nor a proper  party  as
\nthere  can be a complete and effectual adjudication  without
\nhis  presence.\tThe decree is to be a against  the  assured,
\nnot against the insurer.\n<\/p>\n
\t\t\t\t   Cur. adv. vult.\n<\/p>\n
1959.  May 11.\tThe Judgment of the Court was delivered by
\nSARKAR J.-These two appeals arise out of two suits and\thave
\nbeen  heard  together.\t The suits had\tbeen  filed  against
\nowners of motor cars for recovery of damages suffered by the
\nplaintiffs as a result of the negligent driving of the cars.
\nThe  owners  of the cars were insured  against\tthird  party
\nrisks and the insurers were subsequently added as defendants
\nto the suits
\n176<\/span>
\nunder  the  provisions of sub-s. (2) of s. 96 of  the  Motor
\nVehicles Act, 1939.  The terms of that subsection  will have
\nto  be\tset  out later, but it may now\tbe  stated  that  it
\nprovided that an insurer added as a party to an action under
\nit was entitled to defend on the grounds enumerated in it.
\nOn  being  added as defendants, the insurers  filed  written
\nstatements  taking  defences other than those  mentioned  in
\nthat sub-section.  The plaintiffs contended that the written
\nstatements  should be taken off the records as the  insurers
\ncould defend the action only on the grounds mentioned in the
\nsub-section and on no others.  A question thereupon arose in
\nthe  suits  as\tto  what  defences  were  available  to\t the
\ninsurers.  In one of the suits it was held that the  insurer
\ncould  take only the defences specified in that\t sub-section
\nand  in the other suit the view taken was that the  insurers
\nwere not confined to those defences.  Appeals were perferred
\nfrom these decisions to the High Court of Punjab.  The\tHigh
\nCourt  held that the insurers could defend the actions\tonly
\non the grounds mentioned in the subsection and on no others.
\nHence these appeals by the insurers.\n<\/p>\n
The question is whether the defences available to an insurer
\nadded  as  a party under s. 96(2) are only  those  mentioned
\nthere.\t A few of the provisions of the Motor  Vehicles\t Act
\nhave  now  to be referred to.  Section 94 of the  Act  makes
\ninsurance  against third party risk compulsory.\t Section  95
\ndeals  with  the  requirements\tof  the\t policies  of\tsuch
\ninsurance  and\tthe limits of the liability  to\t be  covered
\nthereby.  Sub-section (1) of this section provides
\n“………… a policy of insurance must be a policy
\nwhich-\n<\/p>\n
(a)…………………………………………….\n<\/p>\n
(b) insures the person or classes of person specified in the
\npolicy to the extent specified in subsection (2) against any
\nliability which may be incurred by him or them in respect of
\nthe  death  or\tbodily injury to any  person  caused  by  or
\narising out of the use of the vehicle in a public place.”\n<\/p>\n
177<\/span><\/p>\n
Sub-section  (2)  of  s.  95 specifies\tthe  limits  of\t the
\nliability for which insurance has to be effected, and it  is
\nenough\tto say that it provides that in respect\t of  private
\ncars,  which  the  vehicles ‘with which\t these\tappeals\t are
\nconcerned  were,  the  insurance has to be  for\t the  entire
\namount\tof the liability incurred.  Then comes s.  96  round
\nwhich  the arguments advanced in this case have\t turned\t and
\nsome of its provisions have to be set out.\n<\/p>\n
”  Section 96. (1) If, after a certificate of insurance\t has
\nbeen issued under sub-section (4) of section 95 in favour of
\nthe  person by whom a policy has been effected, judgment  in
\nrespect\t of any such liability as is required to be  covered
\nby  a policy under clause (b) of sub-section (1) of  section
\n95 (being a liability covered by the terms of the policy) is
\nobtained  against  any person insured by the  policy,  then,
\nnotwithstanding that the insurer may be entitled to avoid or
\ncancel\tor  may have avoided or cancelled  the\tpolicy,\t the
\ninsurer\t shall, subject to the provisions of  this  section,
\npay to the person entitled to the benefit of the decree\t any
\nsum  not exceeding the sum assured payable thereunder as  if
\nhe  were the judgment debtor, in respect of  the  liability,
\ntogether with any amount payable in respect of costs and any
\nsum payable in respect of interest on that sum by virtue  of
\nany enactment relating to interest on judgments.
\n(2)  No sum shall be payable by an insurer under sub-section
\n(1)  in respect of any judgment unless before or  after\t the
\ncommencement  of  the proceedings in which the\tjudgment  is
\ngiven  the  insurer  had notice through\t the  Court  of\t the
\nbringing  of the proceedings, or in respect of any  judgment
\nso  long as execution is stayed thereon pending\t an  appeal;
\nand  an insurer to whom notice of the bringing of  any\tsuch
\nproceeding is so given shall be entitled to be made a  party
\nthereto\t and  to defend the action on any of  the  following
\ngrounds, namely:-\n<\/p>\n
(a)  that  the policy was cancelled by mutual consent or  by
\nvirtue\tof  any\t provision  contained  therein\tbefore\t the
\naccident giving rise to the liability, and 23
\n178<\/span>
\nthat either the certificate of insurance was surrendered  to
\nthe  insurer or that the person to whom the certificate\t was
\nissued\thas made an affidavit stating that  the\t certificate
\nhas  been  lost or destroyed, or that either before  or\t not
\nlater than fourteen days after the happening of the accident
\nthe  insurer has commenced proceedings for  cancellation  of
\nthe certificate after compliance with the provisions of sec-
\ntion 105; or\n<\/p>\n
(b)  that  there has been a breach of a specified  condition
\nof  the\t policy,  being one  of\t the  following\t conditions,
\nnamely:-\n<\/p>\n
(i)  a condition excluding the use of the vehicle-\n<\/p>\n
(a)  for hire or reward, where the vehicle is on the date of
\nthe contract of insurance a vehicle not covered by a  permit
\nto ply for hire on reward, or\n<\/p>\n
(b)  for organised racing and speed testing, or\n<\/p>\n
(c)  for a purpose not allowed by the permit under which     the
\nvehicle is used, where the vehicle is a public\t  service
\nvehicle or a goods vehicle, or\n<\/p>\n
(d)  without side-car being attached, where the vehicle in a
\nmotor cycle; or\n<\/p>\n
(ii) a\tcondition  excluding driving by a  named  person  or
\npersons or by any person who is not duly licensed, or by any
\nperson who has been disqualified for holding or obtaining  a
\ndriving licence during the period of disqualification; or\n<\/p>\n
(iii)\t  a condition excluding liability for injury  caused
\nor  contributed to by conditions of war, civil war, riot  or
\ncivil commotion; or,\n<\/p>\n
(e)  that  the\tpolicy\tis void on the ground  that  it\t was
\nobtained  by the non-disclosure of a material fact or  by  a
\nrepresentation\tof  fact which was false  in  some  material
\nparticular.\n<\/p>\n
(2A)………………………………..
\n(3)  Where a certificate of insurance has been issued  under
\nsub-section (4) of section 95 to the person by whom a policy
\nhas  been  effected, so much of the policy  as\tpurports  to
\nrestrict the insurance of the
\n179<\/span>
\npersons insured thereby by reference to any conditions other
\nthan  those  in\t clause (b) of\tsub-section  (2)  shall,  as
\nrespects such liabilities as are required to be covered by a
\npolicy\tunder clause (b) of sub -section (1) of section\t 95,
\nbe of no effect:\n<\/p>\n
Provided that any sum paid by the insurer in or towards\t the
\ndischarge of any liability or any person which is covered by
\nthe  policy  by\t virtue only of this  sub-section  shall  be
\nrecoverable by the insurer from that\tperson.
\n(4)  If the amount which an insurer becomes liable under     this
\nsection\t to  pay  in respect of a liability  incurred  by  a
\nperson insured by a policy exceeds the amount for which\t the
\ninsurer\t would apart from the provisions of this section  be
\nliable\tunder the policy in respect of that  liability,\t the
\ninsurer\t shall be entitled to recover the excess  from\tthat
\nperson.\n<\/p>\n
(5)……………………………………………….
\n(6) No insurer to whom the notice referred to in sub-section
\n(2) has been given shall be entitled to avoid his  liability
\nto  any person entitled to the benefit of any such  judgment
\nas  is referred to in subsection (1) otherwise than  in\t the
\nmanner provided for in sub-section (2).”\n<\/p>\n
It  may\t be stated that the policies that were\teffected  in
\nthese cases were in terms of the Act and the certificate  of
\ninsurance mentioned in s. 96 had been duly issued.  It\twill
\nhave been noticed that sub-s. (1) of s. 96 makes an  insurer
\nliable\ton  the\t judgment obtained  by\tthe  injured  person
\nagainst\t the assured.  Sub-section (2) provides that no\t sum
\nshall  be payable by the insurer under sub-s. (1) unless  he
\nhas  been given notice of the proceedings resulting in\tthat
\njudgment,  and\tthat an insurer who has been  given  such  a
\nnotice\tshall be entitled to be made a party to\t the  action
\nand to defend it on the grounds enumerated.  The  contention
\nof the appellants is that when an insurer becomes a party to
\nan  action under sub-s. (2), he is entitled to defend it  on
\nall grounds available at law including the grounds on  which
\nthe assured himself could have relied for his
\n180<\/span>
\ndefence and that the only restriction on the insurer’s right
\nof  defence is that he cannot rely on the conditions of\t the
\npolicy which sub-s. (3) makes as of no effect.\tThis is\t the
\ncontention which we have to examine in
\nthese appeals.\n<\/p>\n
To  start with it is necessary to remember that\t apart\tfrom
\nthe  statute an insurer has no right to be made a  party  to
\nthe action by the injured person against the insured causing
\nthe injury.  Sub-section (2) of S. 96 however gives him\t the
\nright to be made a party to the suit and to defend it.\t The
\nright  therefore  is  created by  statute  and\tits  content
\nnecessarily  depends on the provisions of the statute.\t The
\nquestion  then really is, what are the defences that  sub-S.
\n(2)  makes  available  to an insurer ?\tThat  clearly  is  a
\nquestion of interpretation of the sub-section.
\nNow  the language of sub-s. (2) seems to us to be  perfectly
\nplain and to admit of no doubt or confusion.  It is that  an
\ninsurer to whom the requisite notice of the action has\tbeen
\ngiven ” shall be entitled to be made a party thereto and  to
\ndefend the action on any of the following grounds,  namely,”
\nafter  which comes an enumeration of the grounds.  It  would
\nfollow\tthat an insurer is entitled to defend on any of\t the
\ngrounds\t enumerated and no others.  If it were not so,\tthen
\nof  course no grounds need have been enumerated.   When\t the
\ngrounds of defence have been specified, they cannot be added
\nto.  To do that would be adding words to the statute.
\nSub-section(6)\talso indicates clearly how sub-s.  (2)should
\nbe read.  It says that no insurer to whom the notice of\t the
\naction\thas  been  given  shall be  entitled  to  avoid\t his
\nliability  under sub-s. (1) ” otherwise than in\t the  manner
\nprovided  for in sub-section. (2)”.  Now the only manner  of
\navoiding   liability  provided\tfor  in\t subs.\t(2)  is\t  by
\nsuccessfully raising any of the defences therein  mentioned.
\nIt  comes  then to this that the insurer  cannot  avoid\t his
\nliability except by establishing ,such defences.   Therefore
\nsub-s.\t(6)  clearly contemplates that he  cannot  take\t any
\ndefence\t not mentioned in subS. (2).  If he could,  then  he
\nwould  have been in a position to avoid his liability  in  a
\nmanner other than that
\n181<\/span>
\nprovided  for in sub-s. (2).  That is prohibited  by  sub-s.
\n(6).\n<\/p>\n
We therefore think that sub-s. (2) clearly provides that  an
\ninsurer\t made a defendant to the action is not\tentitled  to
\ntake any defence which is not specified in it.
\nThree  reported decisions were cited at the bar and  all  of
\nthem proceeded on the basis that an insurer had no right  to
\ndefend the action except on the grounds mentioned in  sub-s.
\n(2).   These are Sarup Singh v. Nilkant Bhaskar\t (1),  Royal
\nInsurance Co. Ltd. v. Abdul Mahomed (2) and The\t Proprietor,
\nAndhra Trading Co. v. K. Muthuswamy (3).  It does not appear
\nhowever\t to  have been seriously contended in any  of  these
\ncases  that the insurer could defend the action on a  ground
\nother than one of those mentioned in sub-s. (2).
\nThe  learned counsel for the respondents, the plaintiffs  in
\nthe  action, referred us to the analogous  English  statute,
\nThe Road Traffic Act, 1934, in support of the view that\t the
\ninsurer is restricted in his defence to the grounds set\t out
\nin sub-s. (2).\tBut we do not think it necessary to refer to
\nthe  English statute for guidance in the  interpretation  of
\nthe section that we have to construe.\n<\/p>\n
We  proceed  now to consider the arguments advanced  by\t the
\nlearned\t Solicitor-General who appeared for the\t appellants.
\nHe  contended  that  there  was nothing\t in  sub-s.  (2)  to
\nrestrict  the defence of an insurer to the  grounds  therein
\nenumerated.  To support his contention, he first referred to
\nsub-s.\t(3)  of s. 96 and said-that it\tindicated  that\t the
\ndefences that were being dealt with in sub-s. (2) were\tonly
\nthose based on the conditions of the policy.  His point\t was
\nthat  sub-s.  (2)  permitted  defences\ton  some  of   those
\nconditions and sub-s. (3) made the rest of the conditions of
\nno  effect, thereby preventing a defence being based on\t any
\nof them.  He said that these two sub-sections read  together
\nshow  that  sub-s.  (2) was not intended to  deal  with\t any
\ndefence\t other than those arising -out of the conditions  of
\nthe  policy, and as to other defences therefore\t sub-s.\t (2)
\ncontained no prohibition.  He further
\n(1) I.L.R. [1953] Bom. 296.    (2) I.L.R. [1954] Bom. 1422.\n<\/p>\n
\t\t (3) A.I.R. 1956 Mad. 464.\n<\/p>\n
182<\/span><\/p>\n
said that as under sub-s. (2) an insurer was entitled to  be
\nmade  a defendant to the action it followed that he had\t the
\nright  to take all legal defences excepting those  expressly
\nprohibited.\n<\/p>\n
We  think that this contention is without foundation.\tSub-
\nsection\t (2)  in fact deals with defences other\t than  those
\nbased  on the conditions of a policy.  Thus cl. (a) of\tthat
\nsub-section  permits an insurer to defend an action  on\t the
\nground that the policy has been duly cancelled provided\t the
\nconditions  set\t out  in that clause  have  been  satisfied.
\nClause\t(c) gives him the right to defend the action on\t the
\nground\tthat the policy is void as having been\tobtained  by
\nnon-disclosure\tof  a  material fact  or  a  material  false
\nrepresentation of fact.\t Therefore it cannot be said that in
\nenacting  sub-s.(2) the legislature was\t contemplating\tonly
\nthose  defences\t which were based on the conditions  of\t the
\npolicy.\n<\/p>\n
It  also  seems to us that even if sub-s.(2)  and  sub-s.(3)
\nwere  confined only to defences based on the  conditions  of
\nthe  policy that would not have led to the  conclusion\tthat
\nthe  legislature  thought that other defences not  based  on
\nsuch  conditions, would be open to an insurer.\tIf that\t was
\nwhat  the  legislature intended, then there was\t nothing  to
\nprevent\t  it  from  expressing\tits  intention.\t  What\t the
\nlegislature  has  done\tis to enumerate in  sub-s.  (2)\t the
\ndefences  available to an insurer and to provide  by  sub-s.
\n(6) that he cannot avoid his liability excepting by means of
\nsuch defences.\tIn order that sub-s. (2) may be\t interpreted
\nin the way the learned Solicitor-General suggests we have to
\nadd  words  to it.  The learned\t Solicitor-General  concedes
\nthis and says that the only word that has to be added is the
\nword  ” also” after the word “grounds”.\t But even  this\t the
\nrules  of interpretation do not permit us to do\t unless\t the
\nsection as it stands is meaningless or of doubtful  meaning,
\nneither\t of  which we think it is.  The\t addition  suggested
\nwill,  in  our\tview, make the\tlanguage  used\tunhappy\t and
\nfurther effect a complete change in the meaning of the words
\nused in the sub-section.\n<\/p>\n
As  to\tsub-s. (6) the learned\tSolicitor-General  contended
\nthat the proper reading of it was that an
\n183<\/span>
\ninsurer\t could\tnot avoid his liability except by way  of  a
\ndefence\t upon being made a party to the action under  sub-s.
\n(2).   He contended that the word it manner ” in sub-s.\t (6)
\ndid  not refer to the defences specified in sub.s.  (2)\t but
\nonly  meant,  by way of defending the suit the right  to  do
\nwhich is given by sub-s. (2).  We think that this is a\tvery
\nforced construction of sub-s. (6) and we are unable to adopt
\nit.   The only manner of avoiding liability provided for  in
\nsub-s.\t(2)  is\t through  the  defences\t therein  mentioned.
\nTherefore when sub-s. (6) talks of avoiding liability in the
\nmanner\tprovided  in sub-s. (2), it  necessarily  refers  to
\nthese defences.\t If the contention of the learned Solicitor-
\nGeneral\t was right, sub-s. (6) would have provided that\t the
\ninsurer would not be entitled to avoid his liability  except
\nby defending the action on being made a party thereto.
\nThere  is  another ground on which  the\t learned  Solicitor-
\nGeneral supported the contention that all defences are\topen
\nto an insurer excepting those taken away by sub-s. (3).\t  He
\nsaid that before the Act came into force, an injured  person
\nhad  no right of recourse to the insurer and that it was  s.
\n96(1) that made the judgment obtained by the injured  person
\nagainst\t the assured binding on the insurer and gave  him  a
\nright  against the insurer.  He then said that being so,  it
\nis  only  fair that a person sought to be made\tbound  by  a
\njudgment should be entitled to resist his liability under it
\nby  all\t defences which he can in law  advance\tagainst\t the
\npassing of it.\n<\/p>\n
Again,\twe  find the contention\t wholly\t unacceptable.\t The
\nStatute\t has no doubt created a liability in the insurer  to
\nthe  injured  person  but the  statute\thas  also  expressly
\nconfined  the  right  to avoid\tthat  liability\t to  certain
\ngrounds\t specified in it.  It is not for us to add to  those
\ngrounds\t and  therefore\t to  the  statute  for\treasons\t  of
\nhardship.  We are furthermore not convinced that the statute
\ncauses\tany  hardship.\tFirst, the insurer  has\t the  right,
\nprovided  he  has reserved it by the policy, to\t defend\t the
\naction\tin  the name of the assured and if he does  so,\t all
\ndefences  open to the assured can then be urged by  him\t and
\nthere is no
\n184<\/span>
\nother defence that he claims to be entitled to urge.  He can
\nthus avoid all hardship if any, by providing for a right  to
\ndefend the action in the name of the assured and this he has
\nfull  liberty to do.  Secondly, if he has been made  to\t pay
\nsomething  which on the contract of the policy he  was\tnot,
\nbound  to  pay, he can under the proviso to sub-s.  (3)\t and
\nunder  sub-s. (4) recover it from the assured.\tIt was\tsaid
\nthat  the  assured might be a man of straw and\tthe  insurer
\nmight  not  be able to recover anything from him.   But\t the
\nanswer\tto  that is that it is the insurer’s bad  luck.\t  In
\nsuch  circumstances the injured person also would  not\thave
\nbeen  able to recover the damages suffered by him  from\t the
\nassured,  the person causing the injuries.  The loss had  to
\nfall  on  some one and the statute has thought fit  that  it
\nshall be borne by the insurer.\tThat also seems to us to  be
\nequitable for the loss falls on the insurer in the course of
\nhis  carrying  on his business, a business out of  which  he
\nmakes  profit, and he could so arrange his business that  in
\nthe  net result he would never suffer a loss.  On the  other
\nhand,  if the loss fell on the injured person, it  would  be
\ndue  to no fault of his; it would have been a loss  suffered
\nby him arising out of an incident in the happening of  which
\nhe had no hand at all.\n<\/p>\n
We  therefore feel that the plain words of sub-s.(2)  should
\nprevail\t and that no ground exists to lead us to  adopt\t the
\nextraordinary course of adding anything to it. We think that
\nthe High Court was right in the view that it took,
\nIn the result these appeals are dismissed with costs.\n<\/p>\n
\t\t\t  Appeals dismissed.\n<\/p>\n
       185<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India British India General Insurance … vs Captain Itbar Singh And Others on 11 May, 1959 Author: L Slesser PETITIONER: BRITISH INDIA GENERAL INSURANCE CO., LTD. Vs. RESPONDENT: CAPTAIN ITBAR SINGH AND OTHERS DATE OF JUDGMENT: 11\/05\/1959 BENCH: ACT: Motor Car lnsurance–Suit for damages by third Party- Insurance company added defendants- Defence […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-109074","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBritish India General Insurance ... vs Captain Itbar Singh And Others on 11 May, 1959 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/british-india-general-insurance-vs-captain-itbar-singh-and-others-on-11-may-1959\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"British India General Insurance ... vs Captain Itbar Singh And Others on 11 May, 1959 - 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