Decided on October 04,1983



Sen, J. - (1.) This is a revisional application at the instance of the Oriental Fire and General Insurance Co., one of the respondents in a Motor Accidents Claims Case No. 306 of 1974 of the Tribunal at Alipore. The order impugned is one dated October 4, 1980, dismissing an application under Order 9, Rule 13 of the Code of Civil Procedure filed by the petitioner which was registered as Miscellaneous Case No. 13 of 1980.
(2.) Opposite party No. 1 instituted the said claim case against opposite party No. 2, owner of a taxi, which ran over him and caused injury on May 16, 1974, resulting in the claim. In that proceeding, the present petitioner was made a party respondent on an allegation that they were the insurers. That claim was allowed ex parte on December 17, 1979. In filing the application under Order 9, Rule 13, the present petitioner made out a case that they came to know of the said ex parte award on May 9, 1980, and, as such, filed the said application on May 12, 1980. The application has been dismissed by the learned judge presiding over the Tribunal not on merits but on the ground that an application under Order 9, Rule 13, at the instance of the petitioner is not maintainable in law. That is the order now impugned before us in the present revisional application which has been heard on contest by opposite party No. 1. At the outset, it should be made clear that the provisions of Order 9, Rule 13, have been made applicable to proceedings before the Claims Tribunal by virtue of rule 238 of the Motor Accidents Claims Tribunal Rules (West Bengal) framed in exercise of powers under Section 110 of the Motor Vehicles Act. In that way, it cannot be said that an application under Order 9, Rule 13 of the Code not being contemplated in law is not maintainable as such. The learned judge presiding over the Tribunal has held the application to be not maintainable on the ground that the award, according to the learned judge, is not against the petitioner. The learned judge has taken the view that the award is really against opposite party No. 1, the owner of the taxi, and the petitioner is made liable only as the insurer and hence it cannot be said that the award is against the petitioner. In that view, the learned judge has held that the petitioner has no locus standi to make an application under Order 9, Rule 13, of the Code of Civil Procedure. On a careful consideration of the material provisions of the Motor Vehicles Act, it appears to us that the view taken by the learned judge is erroneous. Under Section 96(2) of the Motor Vehicles Act, in order to make the insurer liable for payment of the amount to be awarded, notice of the proceedings has to be served on the insurer and the insurer being given an opportunity to be added as a party is entitled to raise certain specific defences of his own.
(3.) That apart, under Section 110C(2A), where there is collusion between the claimants and the person against whom the claim is made, or where, as in the present case, the claimants fail to contest the claim, the Tribunal has to implead the insurer who may be made liable in respect of the claim and the insurer in that event would have an unrestricted right to defend the proceeding and contest the claim on all grounds. In view of these provisions, it cannot be said that the petitioner as insurer had no independent right of defence in the claim proceeding which they failed to put forward when the proceeding was decreed ex parte and which they can still put forward as and when the ex parte award is recalled and the claim proceeding is reopened if just and proper grounds are made out for recalling such an ex parte award. Hence, it is necessary for the learned judge to go into the merits of the petitioner's case made in the application under Order 9, Rule 13, of the Code. He really refused to exercise his jurisdiction in this regard when, upon an erroneous view of the law, he held that the application under Order 9, Rule 13, of the Code of Civil Procedure, is not maintainable at the instance of the petitioner.;

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