T.N. Singh, J. - (1.)THE son died on 6.1.75 -a bachelor, a promising young man, employed comfortably as an Agricultural Section officer under the Director of Agriculture, Government of Tripura. He died in an accident made by bus belonging to the 2nd Respondent, Tripura Road Transport Corporation, for short "T.K.T.C" which saw the death of the son. The mother who is 1st Respondent before us lodged a claim for herself and her husband for compensation in the Motor Accident Claims Tribunal, Tripura at Agartala, claiming Rs. 1,00,000/ -for her son's death, which occured according to her, due to rash and negligent driving of the bus.
(2.)THE claimant examined as. many, as 7 witnesses in support of her case. Learned Presiding officer of the Tribunal on a careful consideration of all the materials on record reached the conclusion that there was negligence on the part of the driver in driving the vehicle in question the to which the accident occured resulting in the death of one of its passengers Debabrata, son of the 1st Respondent. The claim was contested before the Tribunal by the T.R.T.C. and also by the Insurer, the Appellant before us, by filing written statements. Learned Presiding officer passed the award in favour of the claimant Respondent allowing her claim to the extent of Rs. 25,920/ - and also allowing interest at the rate of 6% per annum on that amount from the date of application up to the date of realisation.
The owner of the vehicle, namely T.R.T.C., has not appealed against the award. The insurer, on the other hand, has come to this Court and in the course of hearing of the appeal learned Counsel Mr. D. Choudhury has raised two contentions before us in support of the appeal. His first contention is that there was no rashness or negligence on the part of the driver in driving the vehicle and the finding recorded to the contrary is against the weight of evidence. He next contended the Appellant's liability in terms of Section 95 of the Motor Vehicles Act (here after the Act) extended only to Rs. 5,000/ -and therefore, he cannot be charged with the duty of satisfying the entire liability incurred by the owner under the award passed by the Tribunal. In our opinion, his both contentions are meritless.

(3.)FOR the first contention we need not travel far, because, answer thereto is given by the statutory provision itself. We examine, therefore, Sub -section (2) of Section 96 of the Act to test counsel's contention. On a plain reading of the provision it appears clear that the insurer was not liable to pay any sum determined as the owner's liability arising from the accident unless 3 conditions were satisfied. Firstly, before or after the commencement of the proceeding in which the judgment is given the insurer must be given notice of the proceeding; secondly he must also be made a party to the proceeding; and thirdly, he shall have the right to defend the action on certain grounds as mentioned in Clauses (a) and (b) of Sub -section (2). Mr. Choudhury (sic)onedes that the first two conditions have been duly satisfied. However, he disputes Respondent's objection to his challenging the award on merit, namely, finding of negligence, contending that Sub -clause (iii) of Clause (b) of Sub -section (2) gives him right to do so. We do not see any force in his contention for two reasons. We have perused the written statement of the insurer. We do not find any ground taken therein about breach of any condition of the policy or insurance by the owner of the vehicle. That apart, Sub -clause (III) on the face of it does not refer to a case of "rash or negligent" driving. The only liability that can be excluded under the clause is "liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion." We have no doubt that Section 96(2) contemplates that even by inserting a condition in the policy excluding liability accruing from "rash and negligent driving" the support cannot be achieved because such a condition would be illegal as it would not be covered by Clause (b) thereof.
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