DIAYALI BAL Vs. JUPITER GENERAL INSURANCE CO LTD

JUDGEMENT

(1.) THIS is a petitioner for revision and is directed against the order of the subordinate Judge, Hissar dated the 20th of February, 1964, by which the following preliminary issue was decided in favour of the plaintiffs: is a suit liable to be stayed or incompetent as alleged in the preliminary objection by defendants 5 to 8? the suit in which this preliminary issue was framed was filed by the Jupiter general Insurance Co. against Shri Lalu Ram, Shri Babu Ram Gupta R. Biyani, mohan Arya Smt. Dayalibai Smt. Chander Kanta Ashwani Kumar and Anita. Defendant No. 5 is the mother of the deceased Captain O. P. Girdhar defendant no. 6 is his widow defendant No. 7 is the son and defendant No. 8 is the daughter captain O. P. Girdhar met with an accident on the 15th of December, 1962. He was struck by a truck No. PNK-1223 and as a result of this collision he died. An application was made by defendants Nos. 5 to 8 to the Motor Accident Claims tribunal Punjab under Section 110a of the Motors Vehicles Act. This application is no. 35 of 1963. In this application the Vanguard Insurance Co, Ltd and the Jupiter general Insurance Co. , the plaintiff in the suit in which the preliminary issue has been framed were made parties. The Jupiter General Insurance Co. has raised the defence to the application before the Claims Tribunal to the effect that the insurance policy in question to which the cover-note dated the 12th of December, 1962, relates was obtained by fraud and conspiracy. The allegations of conspiracy are that defendants 5 to 8 conspired with defendants Nos. 1 to 4 whereby defendant Nos. 1 to 4 whereby defendants Nos. 2 and 3 were instrumental in getting the cover-note and the policy of insurance issued and that all this happened after the accidents.

(2.) ON the basis of this very plea the Insurance Company has filed a suit in the court of the Subordinate Judge 1st Class Hissar on the 24th of July, 1963, against the defendants already set out above. The suit is for a declaration and for cancellations of the insurance policy on the same grounds that have been taken by the company in defence to the application filed by defendants Nos. 5 to 8 before the Claims Tribunal Defendants Nos. 5 to 8 have raised the plea that the suit by the Insurance Company is not competent and that is what has given rise to the preliminary issue which has given rise to the preliminary issue which has been determined by the trial Court. The trial Court has decided this issue in favour of the Insurance Company and it will be proper to set out the relevant part of the decision in the very words of the learned Subordinate Judge-". . . . . If the subject-matter in dispute in this case is triable by the Claims tribunal constituted under the Motor Vehicles Act then the jurisdiction of the civil Courts would be barred. Section 110-F of the Motor Vehicles Act bars the jurisdiction of the civil court to entertain any question relating to any claim for compensation which may be adjudicated upon by the claims Tribunal for that area. This argument is not without force and apparently this suit does not relate to any claim for compensation. In fact none of the parties in this case have claimed any compensation. The suit relates to the allegations made by the plaintiff insurance policy and the cover note in dispute contract of insurance was made between the plaintiff and defendant No. 1. The reliefs which have been claimed in the alternative also do not relate to any compensation. Section 110-F of motor Vehicles act bars the jurisdiction of the Civil Court only to try cases in which claim of compensation has been made and which claim can be adjudicated upon the by the Claim Tribunal. As the instant case does not relate to any compensation it is held that civil court has jurisdiction to try this case. "

(3.) IT is the aforesaid decision of the trial Court which is being challenged in this petition by defendant No. 5 Mst Dayalibai. The contention of the learned counsel for the petitioner is that the trial Court has no jurisdiction to entertain the suit in view of the provisions of S. 96 of the Motors Vehicles Act. Before examining this contention it will be proper to examine the scheme of the Motor Vehicles Act so far as it relates to a claim by a third party against the insurance companies. Chapter vii deals with insurance of motor vehicles against third-party risk. Section 93 is the definition section. Section against third-party risk. Section 95 lays down the requirement of policies and limits of liability Section 96 which is the section pressed into service deals with the duty of the insurers to satisfy judgment s against persons insured in respect of third party risks. The relevant part of this sections is as follows: "96 (1), If after a certificate o f insurance has been issued under subsection