Mustafa Badsha and Another vs Madras Motor Insurance Co. Ltd., Madras

Ramaswami Gounder, J.—C. R. P. No, 428 of 1950 is filed by the plaintiffs against the order made against them in I. A. No. 409 of 1955

in O. S. No. 1190 of 1955, a suit filed by them against the defendants to recover damages for the death of their child as a result of a car accident.

According to the plaintiffs, the car at the time of the accident belonged to the first defendant; but, according to the respondent insurance company,

it belonged to the second defendant, by reason of a transfer in his favour.

The third defendant to the suit was the driver of the car. The application I. A. No. 409 of 1955 was made by the insurance company to be brought

on record as the defendant and they were brought on record, but with this restriction that they would be permitted only to watch the proceedings

that is to say as a dummy defendant. I am not convinced about the propriety of that order, because the CPC does not create a class of defendants

who could be called spectator or dummy defendants,

If a party is brought on record as a defendant, then naturally it follows that, that party should be allowed to exercise all the rights and privileges

Conferred by the Civil Procedure Code. However, the revision is filed against the order bringing on record the insurance company, and Mr. C. R.

Krishna Rao for the plaintiffs contends that they (the company) are not even proper parties to the suit, that their liability is absolute and that once

the plaintiffs obtain a decree against defendants 1 and 2 then, that decree is straightaway executable against the insurance company without their

being allowed to raise any objection.

But that contention, to the extent to which it is relevant for the purpose of this revision namely whether the insurance company is a proper party or

not, does not seem to me to be sound, because, u/s 96(2) of the Motor Vehicles Act, there is a specific provision that an insurer, to whom notice

of any such proceedings is given, shall be entitled to be made a party thereto and to defend the action on any of the grounds specified in that sub-

clause.

The learned counsel for the insurance company contends that the contention which they put forward in the suit would fall under Sub-clause (a) of

Clause 2, namely, that the policy was cancelled by virtue of any provision contained therein before the accident giving rise to the liability and that

subsequently the certificate of insurance was surrendered to the insurer. If that is the contention, it clearly follows that the insurance company has

got a right to come on record and defend the suit on that ground.

The further question how far that contention is sustainable in view of the other provisions in the Act does not certainly arise for consideration at this

stage. The only relevant consideration now is, what is the contention which the insurance company puts forward and whether that contention would

fall within any of the several Sub-clauses of Clause 2 of Section 96 . As I stated, the contention which the insurance company seeks to put forward

is a contention which would be covered by Sub-clause (a) of Clause 2 of that section.

It follows that in this case the insurance company was properly brought on record as a party defendant, and so, C. R. P. No. 428 of 1956 is

dismissed with costs. C. R. P. No. 1367 of 1955 is against the order restricting the insurance company in the matter of defending the suit, namely,

that they shall have the right only to watch the proceedings. That, on the face of it, is erroneous, and so, this civil revision petition is allowed, but

with out costs.