Gurdial Chand Bhasin vs Anil Kumar and Others

G.C. Garg, J.—This order will dispose of C.R. Nos. 1156 and 1157 of 1992, as the point involved in the two cases is precisely the same.

Car bearing registration No. PJR 4433 and truck bearing registration No. CHW 2005 were involved in an accident which took place at about 7 PM on 25.8.1985. Anil Kumar was driving the car. The truck CHW 2005 coming from the side of Rajpura stuck against the car near village Ganda Kheri on the Patiala Rajpura road. As a result of this accident Anil Kumar received injuries and the car was damaged.

Two claim petitions were filed before the Motor Accident Claims tribunal, Patiala, one by Anil Kumar and the other by the owner of the car Sh. Raj Kumar. Anil Kumar claimed compensation in the sum of Rs. 10,000/- for the injuries sustained by him, whereas Sh. Raj Kumar claimed damages for the car to the tune of Rs. 40,000/-. The claim petitions were filed against the owner of the truck and its driver. The particulars of the Insurance Company were not disclosed either by the owner or by the driver of the truck. The respondents in the claim petition did not put in appearance and they were thus proceeded against ex-parte. An ex-parte award thus came to be passed on 13.10.1986. Anil Kumar was awarded compensation in the sum of Rs. 5,000/-, whereas the claim of Raj Kumar was accepted to the extent of Rs. 30,000/-.

Owner of the truck moved an application on 8.1.1989 for setting aside the ex-parte award. This application was dismissed. Anil Kumar and Raj Kumar took out execution. Petitioner, owner of the truck moved an application before the executing court for impleading the Insurance Company as a judgment debtor with a prayer that it be impleaded as respondent and the compensation awarded be recovered from it as the truck bearing registration No. CHW 2005 was insured with M/s United India Insurance Company. The executing court dismissed this application by order dated 1.2.1992 and while doing so also dismissed the application for stay of the execution proceedings. Hence this revision at the instance of the owner of the truck.

Learned counsel for the petitioner by reference to the provisions of Section 96 of the Motor Vehicles Act, 1939, for short ''the Act'', submitted that executing court acted illegally in dismissing the application for impleading the Insurance Company as a respondent. According to the learned counsel the Insurance Company even if not impleaded as a respondent in the claim petition, could be ordered to be impleaded in the execution application and the amount of the award recovered from it in view of the fact that the vehicle owned by the petitioner was insured and which fact was not in dispute as the Insurance Company had admitted in reply to the application that the vehicle was insured with it at the relevant time.

Sub-section 1 of Section 96 of the Act provides for the liability of the Insurance Company in respect of the vehicle which is covered by the Insurance Policy issued by it. Sub-section 2 of Section 96 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 a party thereto and to defend the action on the grounds detailed in the sub-section.

Learned counsel for the petitioner by relying upon Urmilla Pandey and others Vs. Khalil Ahmad and ohters, submitted that the insurer even if not a party to the claim petition could be ordered to be umpleaded as a party in the execution application and the amount of compensation recovered from it. According to the learned counsel it was totally irrelevant whether the Insurance Company is impleaded or not as a respondent in the claim petition or the appeal that may be taken against the award of the Tribunal. This judgment, however, in my opinion renders no assistance to the learned counsel. In the reported case the Insurance Company was a party to the claim petition and the Tribunal dismissed the claim against the Insurance Company on the ground that there was no material on record to prove that the car was insured with the Insurance Company could be asked to pay the amount of compensation after the Supreme Court came to the conclusion that the vehicle was so insured with the Insurance Company.

Sub-section 2 of Section 96 of the Act even otherwise in terms provides that no sum shall be payable by the insurer 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 a pending appeal therefrom. In other words the liability of the Insurance Company under the said provision is in respect of a claim granted by the tribunal where it had given a notice to the Insurance Company or such notice was given to it in a pending appeal against the award of the Tribunal. It in my opinion does not cover a case where the Insurance Company was not made a party or was not given a notice in the claim proceedings or in an appeal taken there against.

For this view I am supported by the decision of the Supreme Court in Narendra Kumar and Another Vs. Yarenissa and Others, wherein it was held that before an insurer can be saddled with the liability to pay the sum awarded, it is necessary that the Insurance Company must have a prior notice of the institution of the proceedings before the award is given so as to enable it to defend the action on all or any of the grounds enumerated. Sub-section 2 of Section 96 of the Act provides that once the insurer had a notice of the claim application, it is thereafter for it to seek impleadment or to defend the action on any of the grounds available under Sub-section 2 of Section 96 of the Act. Once that is so it is clear that the insurer cannot be saddled with the liability of a claim granted by the Motor Accident Claims tribunal, where the Insurance Company was not impleaded as a party or had no notice thereof.

For the reasons recorded above I am of the opinion that the contention of Mr. Suri has no merit and I find no illegality in the order of the executing court refusing to implead the Insurance Company as a respondent and to direct it to pay the compensation awarded against the owner of the offending truck. These revision petitions are consequently dismissed, but with no order as to costs.

Since the proceedings before the executing court were stayed. Panties through their counsel are directed to appear before the executing court on 10.8.1998 for further proceedings in accordance with law. It is, however, clarified that it will be open to the petitioner to recover the amount of damages awarded against him by the Motor Accidents Claims Tribunal, Patiala, from the Insurance Company in accordance with, if he is so entitled to.