PREMIER INSURANCE CO LTD Vs. SWARAN KAUR

JUDGEMENT

(1.) The Premier Insurance Company Ltd., impleaded as defendant No. 5 in the Court below in pursuance of a notice issued under Section 96(2) of the Motor Vehicles Act (hereinafter called the Act), has preferred this regular first appeal from the judgment and decree of a learned Subordinate Judge Ist Class, Delhi, dated 9-12-1957 granting to the four plaintiff-respondents a decree for Rs.20,000/- against defendants Nos. 1, 2 and 5. Out of the total decretal amount, plaintiff No. 1. widow of the deceased Ajit Singh, was entitled to get Rs.5,000/-, plaintiffs Nos. 2 and 3, daughters of the deceased, Rs. 3,000/- each and plaintiff No. 4, minor son of the deceased, Rs.9,000/-. Defendant No. 1, Nichhattar Singh is the motor driver of the vehicle which was involved in the occurrence causing Ajit Singh's death and defendant No. 2, Nahar Singh, its owner, whereas defendant No.4, as already observed, is the Insurance Company.

(2.) On 17-8-1954 at about 7-30 P.M., Ajit Singh, deceased was travelling in a motor cycle rickshaw, when near the Terminal Tax Post, Seelampur, the truck belonging to the defendant No.2 and driven by defendant No. 1 coming from the opposite direction collided with the aforesaid motor cycle rickshaw as a result of which deceased Ajit Singh sustained serious injuries. He was taken to the Irwin Hospital where he died on 18-8-1954 at about 1-45 A.M. Defendants Nos. 1 and 2 have not preferred any appeal.

(3.) A preliminary objection has been raised by Shri S.S. Chaddha on behalf of the respondents No.s 1 to 4 that the present appeal at the instance of the Insurance Company is incompetent. In support of his objection, he has relied on Section 96 (2) of the Act and on the statement dated 18-4-1956 of the learned counsel for the Insurance Company, defendant No. 5 in the Court below, giving up all pleas except those admissible under Section 96(2) of the Act. Here, it may be recalled that originally the Insurance Company was not impleaded as a party but was included in the array of defendants at a later stage pursuant to notice under Section 96 of the Act. In reply to the written statement by the Insurance Company, the plaintiffs in their replication raised the objection based on Section 96(2) of the Act and it was in these circumstances that the above statement by the counsel for defendant No. 6 was made. It is not disputed at the bar before us that neither in the Court below nor on appeal in this Court, the defendant No. 5 raised any plea covered by Section 96(2) of the Act. Shri Chaddha has cited Sarupsingh v. Nilkant, Itbar Singh v. P.S. Gill, Vanguard Fire and General Insurance Co. Ltd., v. Sarla Devi, and on unreported Bench decision of this Court in New Zealand Insurance Co. Ltd. V. Kala Ram, R.F.A., 76-D of 1957, D/- 7-2-1967 (Delhi) in support of his preliminary objection. The decision of the Punjab High Court in Itbar Singh's case, was considered on appeal by the Supreme Court in British India General Insurance Co. Ltd. V Captain Itbar Singh, and appeal against the same was dismissed.