J.M.SHELAT - (1.) On July 30 1958 while respondent No. 3 Chinubhai (defendant No. 2 in the suit) was driving a motor car bearing registration No. BYA 9887 belonging to the second respondent Kanubhai (defendant No. 1 in the suit) the car caused severe bodily injuries to respondent No. 1 (the plaintiff in the suit) which are said to have permanently incapacitated him. Respondent No. 1 thereafter filed a suit being Suit No. 86 of 1959 for damages against the 2nd respondent the owner of the car and the 3 respondent who was at the time driving the car. On the City Civil Court being established in 1961 the suit stood transferred to that Court and was renumbered as Suit No. 299 of 1961. During the pendency of that suit a notice under sec. 96(2) of the Motor Vehicles Act IV of 1939 was issued against the petitioner company and the fourth respondent company. The petitioner company had issued an insurance policy in favour of respondent No. 3 Chinubhai in respect of a Hudson car bearing registration No. BYA. 7323 which contained a clause which inter alia provided as follows:- The Company will indemnify the Insured in the event of accident caused by or arising out of the use of the Motor car against all sums-including claimants costs and expenses which the Insured shall become legally liable to pay in respect of etc. Clause 4 in sec. II of that policy which may be called a comprehensive clause provided that:- In terms of and subject to limitations of the indemnity which is granted by this section in connection with the motor car the Company will indemnify the Insured whilst personally driving a private Motor car (but not a Motor cycle) not belonging to him and not hired to him under a hirepurchase agreement. The certificate of insurance issued by the petitioner company along with the said policy also stated that:- The insured may also drive a motor car not belonging to him and not hired to him under a Hire Purchase Agreement. Though therefore the policy was issued in respect of the Hudson car it also covered the risk in relation to the use by the third respondent Chinubhai of any other private motor car personally driven by him though not belonging to him. The notice was issued against the petitioner company relying upon this policy and the aforesaid clause 4 contained in sec. II in it.
(2.) On June 22 1964 the petitioner company took out a chamber summons praying that the notice should be quashed on the ground that it was not the insurance company liable under Chapter VIII of the Act. By an order dated March 5 1964 the City Civil Court dismissed the chamber summons and held that the said notice was properly issued against the petitioner company. The learned Judge after considering secs. 94 95 96 and sec. 125 of the Act observed as follows:- "It has been argued and streneously argued by Mr. Kayastha the learned advocate appearing for the Insurance Company that the use of the article the in sec. 94 provides the key to the intention of the legislature. In the first place the article the prefixed to vehicles in sec. 94 does not necessarily refer to the vehicle X but refers to such vehicle as is put to use by the person happening to drive it. The vehicle means the vehicle under use and not a particular specified vehicle. In the second place a complete and effective answer to this contention is that when the person who is actually driving the car has taken out an insurance policy which covers the risk generally in respect of all motor vehicles or arising out of the use of any vehicle it necessarily covers the risk arising from the individual motor vehicle (car X) notwithstanding the fact that he is not the owner of the particular motor vehicle (car X). If an insurance policy which is in larger amplitude in the sense that it embraces the individual motor vehicle as well as other motor vehicles in general is taken out similar to the one in the present case can it be said that it falls short of the statutory requirement or is violative of the requirement of sec. 94 ? To my mind it cannot possibly be contended that such a person would be committing an offence or that he would be violating the provisions of sec. 94. I am therefore of the opinion that a policy taken out by a person actually driving the car meets the requirements of the Motor Vehicles Act provided it is a policy generally covering the risk arising from the accident caused while using any car of all cars and therefore even if the person who is the real owner of the motor car does not happen to have an insurance policy the friend driver would be protected as long as he has taken out such an insurance policy. The facts of the instant case completely cover such a hypothetical case."
(3.) On this interpretation of the provisions of sec. 94 the learned Judge came to the conclusion that since the petitioner company had issued an insurance policy in favour of the third respondent Chinubhai which contained the aforesaid comprehensive clause that policy was a policy contemplated by sec. 94 and by reason of such a policy notice under sec. 96(2) could be issued against the petitioner company and if any judgment were to be passed in such a suit the petitioner company would be deemed to be a judgment-debtor bound to satisfy the aforesaid liability under sec. 96(1). It is this order which has been challenged in this petition.;