CHUMMAN LAL AND ANOTHER Vs. BHAGWANI AND ANOTHER

JUDGEMENT

(1.) This is a defendants appeal arising out of a claim under the Indian Fatal Accidents Act, 1855. Appellant No. 1 was the owner of a Motor Truck No. U. P. Q. 718 while Mohammad Jawad Hussain appellant No. 2 was the driver of the said truck at the relevant time. They were impleaded in the suit as defendant Nos. 1 and 2 respectively. Plaintiff-respondent No. 1 is the widowed mother and plaintiff-respondent Nos. 2 and 3 are minor children of the deceased Phuleshwar.

(2.) The plaintiffs instituted the suit giving rise to the instant appeal alleging that on 19th May, 1965 on account of the negligent and reckless driving of Truck No. U. P. Q. 718 by appellant No. 2 on P. W. D. Road Kasiya, district Deoria, Phuleshwar met with an accident by the said truck and received fatal injuries and died instantaneously. According to the plaintiffs, Phuleshwar, who was a skilled carpenter, was proceeding on the road on a bicycle when the truck driven by appellant No. 2 came from behind, dashed against his bicycle and caused his death. It was alleged that at the time of the accident, Phuleshwar was earning about Rs. 300.00 per month. The plaintiffs claimed that they had suffered heavy loss of pecuniary benefits which would have accrued to them if Phuleshwar, who was a healthy man aged about 35 years, had not met with the accident and consequent death. The plaintiffs, who are the heirs and dependents of late Phuleshwar, initially claimed an amount of Rs. 90,300.00 as damages. By a subsequent amendment they reduced their claim to a sum of Rs. 35,000.00. The appellants resisted this claim. It was alleged that the plaintiffs had no cause of action for bringing the suit. It was claimed that the truck was proceeding from Kasiya to Padrauna and Phuleshwar was also proceeding in the same direction on his bicycle. According to the plea raised in defence the truck was being driven at a reasonable speed of 12 miles per hour and there was sufficient light on account of the head-lights. It was pleaded that when appellant No. 2, who was at the relevant time driving the truck approached Phuleshwar, he blew the electric horn and started proceeding with reduced speed. When the front wheel of the truck had bye-passed the bicycle on which Phuleshwar was moving, he suddenly swerved towards the truck and the truck driver did not notice how Phuleshwar came beneath the near left wheel of the truck and got crushed. The truck was stopped and when the driver after alighting therefrom went to the spot where Phuleshwar was lying on the road, he found him dead. Thus in substance the defence was that Phuleshwar's death was caused by his own negligence and careless cycling. The plaintiff's claim that Phuleshwar was a skilled carpenter was denied and it was asserted that he was a poor agriculturist who was learning carpentry and had no income in fact from that trade. According to the appellant, the plaintiffs were not dependent on Phuleshwar for their livelihood. It was pleaded that Phuleshwar was not of sound state of health and could not have survived for more than a few years. The suit, according to the defence plea, was barred by the provisions of the Motor Vehicles Act and it was bad for non-joinder of New India Assurance Co. Ltd. (hereinafter referred to as the insurer) as a party with which the Truck involved in the accident was insured in accordance with the requirements of Sec. 94 of the Motor Vehicles Act (thereinafter referred to as the Act). The compensation claimed was said to be excessive in any case. On the pleadings of the parties the trial court framed the following issues:-

(3.) The first submission made by the learned counsel, appearing for the appellants, was that because of the statutory requirements of Sec. 94, the Motor Truck which had become involved with the accident resulting in the death of Phuleshwar was insured against third party risk. The appellants had clearly brought it to the notice of the court that the Truck was insured with the insurer whose name was disclosed in the written statement. It was submitted that by reason of Sec. 96(2) the appellants were indemnified by the insurer in respect of any claim for compensation which might be decreed against them on account of any accident by the Truck, but on account of failure of the court to issue notice to the insurer, the insurer could not be held liable for the decretal amount. This had resulted, it was submitted, in serious prejudice to the appellants. It was urged that it was the duty of the court to have issued notice to the insurer as contemplated by Sec. 96(2) of the Act and the failure of the court below to have done so justified the decree being set aside and the suit being remanded with directions to the court to give notice to the insurer and to proceed with the trial of the suit thereafter. The contention to my mind, is devoid of merit. Neither the Civil Procedure Code nor Sec. 96 of the Act nor any provision of the Indian Fatal Accidents Act make it incumbent for the plaintiffs in a suit of the nature with which I am concerned to implead the insurer as a party to the suit. The plaintiffs had chosen to make a claim for compensation only against the owner and driver of the truck. They asked for a decree only against the two appellants. Since they sought no relief against the insurer, no provision or principle of law could compel them to implead the insurer as a party to the suit. Sub-Sec. (2) of Sec. 96 provides that no sum under Sec. 96(1) shall be payable by an 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 concerned of the bringing of the proceedings or in respect of any judgment so long as execution is stayed thereon pending an appeal. Sub-Sec. (2) of Sec. 96 further entitles the insurer to be impleaded as a party if it receives notice of the proceedings and to defend the action on the grounds mentioned in the various clauses of that provision. Sec. 96 (2) is a provision for the benefit of the insured the claimant and the insurer. If the claimant desires to enforce his decree against the insurer, it is for him to move the court for a notice to the insurer. On the other hand, if the insured is anxious to be indemnified in respect of any decree that may be passed against him, he must take steps for getting notice issued to the insurer. The court itself is under no duty to issue notice to the insurer. In support of his contention that it is the duty of the court irrespective of any move in that behalf by the plaintiff or the defendant in a run down action to issue notice to the insurer, learned counsel placed reliance on certain observations made by Chhagla, C. J. with whom Bhagwati, J. concurred in Sarup Singh Mangat Singh Vs. Nilkanth Bhaskar, A.I.R. 1953 Bom. 109 . The particular passage on which reliance is placed by the learned counsel, runs as follows :