BISHAMBHAR DAYAL, J. - (1.)THIS is a writ petition by the Northern India Insurance Co., Indore Branch, for quashing an order passed by the Commissioner, Workmen's Compensation, Indore, holding the applicant liable for payment of Rs.8,400 as compensation to Respondent No.2.
(2.)THE facts of the case are not in dispute. Respondent No. 2 was a workman employed by Respondent No. 3. While working on his duty he met with an accident and suffered an injury. Respondent No. 2 filed an application before the Commissioner for Workmen's Compensation. During the pendency of this petition, the applicant was made a party at the request of both the parties because the applicant had insured the truck in connection with which the accident had occurred. The applicant filed a written statement and denied all the facts stated by Respondent No. 2 in his claim petition and denied its responsibility to pay the compensation but did not thereafter appear and the proceedings went on ex -pane. The learned Commissioner framed several issues and also framed an additional issue as follows:
Is the opposite party No. 2 liable under the Act to pay compensation to the applicant?

After taking evidence the Commissioner found that the applicant before him was a workman, that the accident arose out of and in the course of his employment, that he was entitled to compensation of Rs. 8,400. Then dealing with the liability of the insurance company the Commissioner came to the conclusion that although under the Workmen's Compensation Act the primary liability was that of the employer, yet under Section 96 of the Motor Vehicles Act the insurance company was also liable to discharge the amount as if it was a judgment debtor and consequently observed as follows:

It is therefore observed "that in view of the terms of the said policy the decree may be executed against the insurance company (the opposite parte party No. 2) treating it as a judgment -debtor.

In this Court only one point has been argued by learned Counsel appearing for the applicant insurance company and it is that the insurance company could not be made a party to the proceedings under the Workmen's Compensation Act and no liability could be fastened upon the applicant We have heard learned Counsel at length and we are of opinion that there is no force in this contention. Under Section 96 of the Motor Vehicles Act it has been made quite clear that the insurance company is liable to pay the amount as if it was a judgment debtor under the decree. The insurance company was, therefore, vitally interested in the result of the proceedings. In B.I.G. Insurance Co. v. Cttbar Singh A.LR. 1959 S.C. 1331 It has been decided (See para 16) that the insurance company is entitled to take up all the defences open to the insured if the company has under the insurance agreement reserved that right to itself of defending the claim on behalf of the insured. As a matter of fact, in most of the insurance policies such a right is reserved and the insurance company, therefore, in most of the cases is entitled to defend on all possible grounds. Apart from that, under Sub -section (2) of Section 96 of the Motor Vehicles Act there are some defences only open to the insurance company, and if the insurance company wants to take any of those defences, the insurance company can itself apply to be made a party and take any of those defences. The mere fact that the insurance company is not made a necessary party to the proceedings unless the company wants to take one of those special defences does not mean that otherwise the insurance company is not even a proper party. Since the insurance company has to be served with a notice of the proceedings under the said section and the company is ultimately liable to discharge the claim, it is but proper that the company be impleaded in the proceedings and given a chance to see that the decree is not improperly passed. In this sense the company is certainly a proper party to all the proceedings in which a binding liability upon the company is to be determined.

(3.)LEARNED Counsel for the applicant referred to a large number of cases where the language of Section 96 of the Motor Vehicles Act has been considered, We will deal with those cases one by one:
Sarup Singh v. Nilkant A.I.R. 1953 Bom. 109. This was a case in which an ex parte decree had been passed and an application by the insurer for restoration was dismissed on facts; but the notice to the company had been served very late and the company then wanted to get the ex parte decree set aside. It was on those facts that the Hon'ble Judges who heard the case interpreted the words of Section 96 of the Motor Vehicles Act and came to the conclusion that although the insurance company was not a necessary party or even a proper party, but under the inherent powers of the Court permission could be granted to the insurance company to apply for setting aside of the decree and they did actually set it aside. Thus, although the learned Judges stated that the company was not a proper party, yet in the interest of justice they found it necessary to hear the insurance company and to allow the application for restoration made by it as if it were a party.

Royal Insurance Co. v. Abdul Mohammed A.I.R. 1955 S.C. 39 In this case the insurance company applied to be made a party. The permission was refused as the company did not want to defend on any of the special grounds. The company, however, wanted to defend on behalf of the insured. This application was also refused by the Court below but on appeal the High Court allowed the appeal and permitted the company to defend on behalf of the insured.

Andhra Trading Co. v. Muthuswamy. A.I.R. 1956 Mad. 464 In this case both the insured and the insurance company were made parties. Issue No. 5 was expressly framed to decide the liability of Defendants Nos. 4 and 5, one of which was the insurance company. The trial Court did not decide the liability of the insurance company as no relief had been claimed against the insurance company. On appeal the Madras High Court modified the decree and held that the liability of the insurance company under Section 96 of the Motor Vehicles Act must be declared. This case is directly against the contention of the applicant as in this case the insurance company was in fact a party and the liability of the insurance company was declared by the High Court although the trial Court had not so declared it. The only case which lends support to the applicant is N.A. Insurance Co. v. Kulwanti Devi. A.I.R. 1959 J.&K. 90 With due respect to the Hon'ble Judges who decided that case, we are unable to agree with all the remarks made in that case.