PHONIX ASSURANCE COMPANY LIMITED Vs. SHUSHILABEN SHANTILAL MEHTA

JUDGEMENT

(1.) This is a revision petition filed under sec. 115 of the Civil Procedure Code by the petitioner (original opponent No. 3) Insurer-against the order passed by the Motor Accident Claims Tribunal, Ahmedabad, dismissing the application, Ex. 74, filed by the petitioner claiming that it being made a party to Motor Accident Claims Tribunal Application No. 57 of 1967 by opponent No. 1 (injured) and others, it has a right to cross-examine the witnesses examined not only on the grounds mentioned in sub-sec. (2) of sec. 96 of the Motor Vehicles Act, 1939 (which will be hereinafter referred to as the Act), but on all grounds on the merits as it would be done by an assured (insured). Opponent No. 1 in the petition is an injured person, opponent No. 2 is her husband. Opponent No. 3 is her son. Opponent No. 4 is the daughter and opponent No. 5 is the scooter-driver who was driving the scooter which was responsible for causing injury to the injured, and opponent No. 6 is the owner of the scooter.

(2.) The Claims Tribunal has reached the conclusion that the fact that the injured had made the insurer a party to the application itself, would not make any difference in the position in this behalf. Whether the insurer is given a notice about such a proceeding as contemplated by sec. 96 of the Act or it is made a party, would not make any difference. In view of the provisions contained in sub-secs. (1), (2) and (6) of sec. 96 of the Act, if they are read together, it is clear that the law does not recognise a general right to defend the action in favour of the Insurer. The right to defend, which is given to the Insurer is only a restricted right and it can defend the action on the grounds specified in sub-sec.(2) of sec. 96 of the Act. In Bright India General Insurance Co. v. Itbar Singh, A.I.R. 1959 Supreme Court 1331, their Lordships have observed at page 1335 in connection with this restricted right as under :

(3.) Miss Kusum Shah, appearing for the petitioner (insurer) has urged that the position referred to by the Claims Tribunal may obtain good in case such a claim was made before the Court. In the instant case, the claim is made before the Motor Accident Claims Tribunal. Sec. 110 of the Act empowers the State Government to constitute by the State Government at Ahmedabad. Sec. 110-A deals with application for compensation. Sec. 110-B deals with award of the claims Tribunal. Sec. 110-C deals with procedure and powers of the Claims Tribunals. Sec. 110-E reads :