Decided on March 21,1954



- (1.)THIS is a notice of motion taken out by the applicants who are an insurance company asking that they may be allowed to defend the suit in the name of the defendant and make and file their written statement of defence in the name of the defendant. It is apparent that the suit is filed for damages against the owner of the motor cycle, the defendant, for injuries caused by the defendant by a rash and negligent act. It is alleged on behalf of the applicants that the defendant has gone away to Africa and his exact whereabouts today are unknown and that the service on the defendant has been effected only by substituted service. Now, normally the company would be entitled to intervene only under Section 96 if the cause of action falls under any of heads set out in Section 96 of the Indian Motor Vehicles Act and not in any other case. The applicants invoke the help of this court on the ground that it would be most inequitable to allow a decree to be passed against the defendant which will be straightway executed against the insurance company without giving the insurance company an opportunity to be heard and therefore they ask not that they may be allowed to be made parties to the suit but that they should be allowed to carry on the suit in the name of the defendant by filing a written statement of defence in his name. The difficulty in granting this relief would be that if that were done that would be adding a further ground to the grounds set out in Section 96 of the Indian Motor Vehicles Act. Mr. Banaji who has argued this matter very fully drew my attention to a recent judgment by my brother Mr. Justice TENDOLKAR in Vimlabai v. General Assurance Society Ltd. In that matter there was a similar application and it is argued that the learned Judge after considering the position and certain Indian and English authorities came to the conclusion that just as in England in certain cases cited before him the courts had intervened, the position is the same in India where the court could also intervene in its inherent jurisdiction to do elementary justice to the insurer where the judgment is to be enforced against him and he should have a right to defend. Now, it must be remembered that relying upon the English judgment in Jacques v. Harrison, Lord Justice GREER pointed out in Windsor v. Chalcraft that the defendant had already bound himself to allow the underwriters to use his name and thereupon the applicant was entitled to proceed under the defendant's name and to have the judgment set aside which had already been given against the original defendant. I have not the benefit of the contract which was placed before the learned Judge, Mr. Justice TENDOLKAR, but this particular ground on which Lord Justice GREER based his judgment clearly shows that the order would be implementing a specific agreement between the insurer and the insured. I have tried to look for a similar provision in the contract before me. As far as I can see there is none and the only clause that is relied upon is clause (3) of the policy. Clause (3) of the policy states :
"the company may at its own option arrange for representation at any inquest or fatal inquiry in respect of any death which may be the subject of indemnity under this section and secondly may undertake the defence of proceedings in any court of law in respect of any act or alleged offence causing or relating to any event which may be the subject of indemnity under this section. "

(2.)THIS to my mind is entirely different from the clause referred to in the English case of Jacques v. Harrison. The question, therefore, is whether in the absence of such a clause the court is entitled to use its powers under its inherent jurisdiction. That power is used again and again to do justice between parties. The question is, whether the applicants can be considered a party to these proceedings at all. I fully realise that once a decree is passed against the defendant under the law it can be immediately executed against the applicants. That is the statutory right flowing after the decree is passed in favour of the plaintiff.
(3.)APART from this question of law I am unable to accede to the application made as there is a very substantial objection to allowing this notice of motion. In paragraph 2 of the affidavit in support the applicants say that they immediately instituted enquiries as a result of which they have come to know that on March 2, 1950, that is the day on which the incident took place, the motor cycle had been transferred by the defendant to one Abdul Sultan Noormahomedbhoy. In other words they wish to take up a defence in the name of the defendant which could not possibly at any time be open to the defendant to take. To my mind to allow the applicants to take the place of the defendant and to allow them to take a defence which could not be open to the original defendant would be really doing violence to all questions of procedure and addition of parties.

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