Appeals Nos
1043 1044 of 1963
Appeals by special leave from the judgment and decree dated April 8 1963 of the Bombay High Court in Appeals Nos 10 and 11 of 1962
ST Desai V N Thakar J B Dadachanji 0
C Mathur and Ravinder Narain for the appellant in both the appeals
GS Pathak 0
P Malhotra and 1
N Shroff for respon dent No 1 in both the appeals
VJ Merchant for respondents Nos 2 and 4 to 7 in CA No 10431963
April 24 1964
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
These appeals by special leave arise in the following circumstances section N Asnani owned Chevrolet Car bearing registered No AA 4431
He insured it with the New Asiatic Insurance Co Ltd hereinafter referred to as the company under a policy dated November 26 1957
Asnani permitted Pessumal Dhanamal Aswani hereinafter called Pessumal to drive that car
When Pessumal was driving the car with Daooji Radhamohan Meherotra and Murli Dholandas in the car the car met with an accident as a result of which Meherotra died and Murli received injuries
Pessumal himself owned a Pontiac car which had been insured with the Indian Trade  General Insurance Co Ltd under policy No Bombay PC 42733 2 dated November 18 1957
The heirs of Meherotra instituted suit no70 of 1959 against Pessumal for the recovery of Rs 250000 by way of damages with interest
Murli instituted suit No 71 of 1959 against Pessumal to recover Rs 150000 by way of damages
Notices under section 962 of the Act IV of 1939 hereinafter called the Act were issued to the New Asiatic Insurance Co Ltd The notice was given to the company as the defendant s liability to third parties had been
insured with it under its policy No MV4564
The company then took out Chamber Summons and it was contended that notice under section 962 of the Act was bad in law and should be set aside and that the company was not liable to satisfy any 869 judgment which might be passed in the suit against the defendant
Alternatively it was prayed that the company be added as a party defendant to the suit andor be authorised to defend the suit in the name of the defendant
Tarkunde J held the notice issued to the company in the suits under section 962 of  the Act to be bad in law and accordingly set them aside
The plaintiffs then filed Letters Patent Appeals which were allowed and the Chamber Summonses were dismissed
It was directed that the trial Judge would hear the alternative prayers in the Chamber Summonses and make the necessary orders It is against this order in each of the appeals that the company has preferred these appeals after obtaining special leave
To appreciate the contentions of the parties in these ap peals reference may be made to certain provisions in the two policies
The various provisions in the two policies are identical in matters affecting the question for determination before us
We therefore set out the relevant provisions from the policy issued by the company and would refer to differences if any at the proper place
The policy is described as Private Car Comprehensive Policy 
The policy issued by the other company does not so describe it but it is also a Comprehensive Policy as the premium charged is on that basis
The policy insures under Section I against loss or damage under Section II against liability to third parties and under Section III against liability for medical expenses
Thereafter follow the general exceptions and conditions
Para 1 of Section II indemnifies the insured ie Asnani who effected the policy in the event of accident caused by or arising out of the use of the motor car against all sums which he may become legally liable to pay in respect of death or of bodily injury to any person
Paras 3 and 4 generally known as Other drivers  Extension Clause  and Other Vehicles Extension Clause  respectively are material and are set out in full 3
In terms of and subject to the limitations of the indemnity which is granted by this section to the Insured the Company will indemnify any driver who is driving the Motor Car on the Insured s order or with his permission provided that such Driver ais not entitled to indemnity under any other policy
bshall as though he were the Insured observe fulfil and be subject to the terms exceptions and conditions of the policy in so far as they can apply
870 4
In terms of and subject to the limitations of the indemnity which is granted by this Section in connection with the Motor Car the Company will indemnity which is granted by this Section in conPrivate Motor Car but not a Motor Cycle not belonging to him and not hired to him under a Hire Purchase Agreement
Under the heading Avoidance of certain terms and right of recovery  the policy states Nothing in this Policy or any endorsement hereon shall affect the right of any person indemnified by this Policy or any other person to recover an amount under or by virtue of the provisions of the  section 96
But the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the said provisions
 Condition 6 reads 6
If at the time any claim arises under this Policy there is any other existing insurance covering the same loss damage or liability the Company shall not be liable to pay or contribute more than its rateable proportion of any loss damage compensation costs or expense
Provided always that nothing in this Condition shall impose on the Company any liability from which but for this Condition it would have been relieved under proviso a of Section II 3 of this Policy
The Schedule to the policy mentions the limitations as to use and under heading Driver  notes aAny person bThe insured may also drive a motor car not belonging to him and not hired to him under a Hire Purchase Agreement
Provided that the person driving holds a licence to drive the Motor Car or has held and is not disqualified for holding or obtaining such a licence
At the end of the Schedule is an important notice which reads The insured is not indemnified if the Vehicle is used or driven otherwise than in accordance with this Schedule
Any payment made by the Company by reason of wider terms appearing in the Certificate in order to comply with is recoverable from the Insured
See the clause headed Avoidance of certain terms and right of recovery  871 The contention for the appellant is that in view of para 4 of Pessumal s policy issued by the other company Pessumal was indemnified against any liability incurred by him whilst personally driving a private motor car not belonging to him and not hired to him under a Hire Purchase Agreement and that therefore lie was not included among the persons indemnified in para 3 of the policy it had issued to Asnani on account of proviso a to para 3 which reads provided that such driver is not entitled to indemnity under any other policy
This contention is met by the respondent on the ground that this proviso is not a limitation on the class of persons indemnified under para 3 that class being the drivers driving the Chevrolet car insured under the policy but merely amounted to a condition affecting the liability of the company vis a vis the driver who was entitled to indemnity under any other policy
The question thus reduces itself to the determination of whether Pessumal comes within the persons indemnified in para 3 of the policy issued by the company
We may now set out the relevant provisions of the Act which have a bearing on the contention between the parties
Chapter VIII of the Act provides for insurance of motor vehicles against third party risks
Section 93 defines the expressions authorised insured  certificate of insurance  and reciprocating country 
The relevant portions of the various sections are 94
No person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place unless there is in force in relation to the use of the vehicle by that person or that other person as the case may be a policy of insurance complying with the requirements of this Chapter
Explanation A person driving a motor vehicle merely as a paid employee while there is in force in relation to the use of the vehicle no such policy as is required by this subsection shall not be deemed to act in contravention of the sub section unless he knows or has reason to believe that there is no such policy in force
2 Sub section 1 shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise
3 The appropriate Government may
by order exempt from the operation of sub section 1 any 872 vehicle owned by any of the following authorities
namely Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties
1 In order to comply with the requirements of this Chapter a policy of insurance must be a policy which a is issued by a person who is an authorised insurer or by a co operative society allowed under section 108 to transact the business of an insurer and b insures the person or classes of person specified in the policy to the extent specified in sub section 2 against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place 4 A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any conditions subject to which the policy is issued and of any other prescribed matters and different forms particulars and matters may be prescribed in different cases 5 Notwithstanding anything elsewhere contained in any law a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person
If after a certificate of insurance has been issued under subsection 4 of section 95 in favour of the person by whom a policy has been effected judgment in respect of any such liability 873 as is required to be covered by a policy under clause b of sub section 1 of section 95 being a liability covered by the terms of the policy is obtained against any person insured by the policy then notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy the insurer shall subject to the provisions of this section pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder as if he were the judgment debtor in respect of the liability together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments
2 No sum shall be payable by an insurer under sub section 1 in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings or in respect of any judgment so long as execution is stayed thereon pending an appeal and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds namely 3Where a certificate of insurance has been issued under sub section 4 of section 95 to the person by whom a policy has been effected so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in clause b of subsection 2 shall as respects such liabilities as are required to be covered by a policy under clause b of sub section 1 of section 95 be of no effect  Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub section shall be recoverable by the insurer from that person
4 If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under 874 the policy in respect of that liability the insure shall be entitled to recover the excess from that person 6No insurer to whom the notice referred to in subsection 2 or sub section 2A has been given shall be entitled to avoid his liability to any person en titled to the benefit of any such judgment as is referred to in sub section 1 or sub section 2A otherwise than in the manner provided for in sub section 2 or in the corresponding law of the State of Jammu and Kashmir or of the reciprocating country as the case may be
Chapter VIII of the Act it appears from the heading makes provision for insurance of the vehicle against third party risks that is to say its provisions ensure that third parties who suffer on account of the user of the motor vehicle would be also to get damages for injuries suffered and that their ability to get the damages will not be dependent on the financial condition of the driver of the vehicle whose user led to the causing of the injuries
The provisions have to be construed in such a manner as to ensure this object of the enactment
Section 94 prohibits as a matter of necessity for insu rance against third party risk the use of a motor vehicle by any person unless there exists a policy of insurance in relation to the use of the vehicle by that particular person and the policy of insurance complies with the requirements of Chapter VIII
The policy must therefore provide insurance against any liability to third party incurred by that person when using that vehicle
The policy should therefore be with respect to that particular vehicle
It may however mention the person specifically or generally by specifying the class to which that person may belong as it may not be possible to name specifically all the persons who may have to use the vehicle with the permission of the person owning the vehicle and effecting the policy of insurance
The policy of insurance contemplated by section 94 therefore must be a policy by which a particular car is insured
Section 95 lays down the requirements which are to be complied with by the policy of insurance issued in relation to the use of a particular vehicle
They are 1 the policy must specify the person or classes of person who are insured with respect to their liability to third parties 2 the policy must specify the extent of liability which must extend to the extent specified in sub section 2 and 3 the liability which be incurred by the specified person or classes of person in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle insured in a public place
875 Sub section 4 of section 95 requires the issue of a certificate of insurance in the prescribed form to the person who effects the policy
The form of the certificate prescribed by the Motor Vehicles Third Party Insurance Rules 1946 requires the specification of persons or classes of persons entitled to drive  The authorised insurer is also to certify in the certificate that the policy to which the certificate relates as well as the certificate of insurance are issued in accordance with the provisions of Chapter VIII of the Act
Sub section 5 of section 95 makes the insurer liable to in demnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person
If the policy covers the insured for his liability to third parties the insurer is bound to indemnify the person or classes of person specified in the policy The same is the effect of sub section
1 of section 96 which provides that the insurer is bound to pay to the person entitled to the benefit of a decree he obtains in respect of any liability covered by the terms of the policy against any person insured by the policy irrespective of the fact whether the insurer was entitled to avoid or cancel or might have avoided or cancelled the policy
This means that once the insurer has issued a certificate of insurance in accordance with sub section
4 of section 95 he has to satisfy any decree which a person receiving injuries from the use of the vehicle insured obtains against any person insured by the policy
He is however liable to satisfy the decree only when he has been served with a notice under sub section
2 of section 96 about the proceedings in which the judgment was delivered
It is for this reason that a notice under sub section
2 of section 96 was issued to the company and it is on account of the consequential liability in case the plaintiffs  claim is decreed against Pessumal that the appellant challenged the correctness of the allegation that Pessumal was a person insured under the policy issued by it in respect of the Chevrolet car
It follows from a consideration of these various provisions of the Act and this is not really disputed for the appellant that if under the terms of the policy Pessumal can be said to be the Person insured under para 3 the company would be liable to satisfy the decree if any passed against Pessumal
The whole question then is whether Pesumal comes within the terms of para 3 of Section II of the policy
Under this paragraph the company indemnifies any person who is driving the motor car on the insured s order or with his permission
Pessumal was driving the car with the permission of Asnani who had effected the Policy and there fore the company undertook to indemnify Pessum al in accor dance with this provision of para 3
The appellant however
876 contends that this provision should not be read as defining by itself the class of persons insured under it in view of the further classification of this class of drivers by proviso a
It is contended that only such drivers were indemnified as were not entitled to indemnity under any other policy and thus drivers who were entitled to indemnity under any other policy were taken out of the general class of drivers driving the car on the insured s order or with his permission
We do not agree with this contention
The proviso is not really a classification of drivers but is a restriction on the right of the driver to recover any dam ages be had to pay from the company
The driver who can get indemnity from any other company under any other policy is under this contractual term not to get indemnity from the company
The proviso thus affects the question of indemnity between a particular driver and the company and has nothing to do with the liability which the driver has incurred to the third party for the injuries caused to it and against which liability was provided by section 94 of the Act and was affected by the policy issued by the company
The company by agreeing with the person who affects the policy to insure him against liability to third parties takes upon itself the entire liability of the person effecting the insurance
It is open to the insurer not to extend this idemnity to the insured to other persons but if it extends it to other persons it cannot restrict it vis a vis the right of the third party entitled to damages to recover them from the insured a right which is not disputed
A proviso meant to exempt certain persons from the general classification Will have to be related to considerations affecting it and is not to be related to such classified persons right to indemnity from any other insurer
In this connection reference may be made to proviso b which cannot in any case be a proviso relating to the classification of persons to be indemnified
It provides that tie person indemnified under para 3 will observe fulfil and be subject to the terms exceptions and conditions of the policy in so far as they can apply to him
We are further of opinion that clause 4 of Section II of Pessumal s policy with the other company does not make that policy to be a policy within the meaning of section 94 of the Act in relation to the Chevrolet car by whose user Pessumal incurred liabilities sought to be established in the two suits
The paragraph indemnifies the insured ie Pessumal whilst personally driving any private motor car
It does not indemnify him against the liability incurred when driving any particular car and therefore in view of what we have said earlier Pessumal s policy cannot be a policy of insurance in relation to the Chevro
let car as required by section 94 of the Act
Such a policy and any indemnity under it cannot be used for sub classifying drivers specified in the policy of the company
877 The Act contemplates the possibility of the policy of in surance undertaking liability to third parties providing such a contract between the insurer and the insured that is the person who effected the policy as would make the company entitled to recover the whole or part of the amount it has paid to the third party from the insured
The insurer thus acts as security for the third party with respect to its realising damages for the  injuries suffered
but vis a vis the insured the company does not undertake that liability or undertakes it to a limited extent
It is in view of such a possibility that various conditions are laid down in the policy
Such conditions however are effective only between the insured and the company and have to be ignored when considering the liability of the company to third parties
This is mentioned prominently in the policy itself and is mentioned under the heading Avoidance of certain terms and rights of recovery  as well as in the form of An Important Notice  in the Schedule to the policy
The avoidance clause says that nothing in the policy or any endorsement thereon shall affect the right of any person indemnified by the policy or any other person to recover an amount under or by virtue of the provisions of the Act
It also provides that the insured will repay to the company all sums paid by it which the company would not have been liable to pay but for the said provisions of the Act
The Important Notice  mentions that any payment made by the company by reason of wider terms appearing in the certificate in order to comply with the Act is recoverable from the insured and refers to the avoidance clause
Thus the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis a vis the third parties in view of the provi sions of the Act
We are of opinion that once the company had undertaken liability to third parties incurred by the per sons specified in the policy the third parties  right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy
Considering this aspect of the terms of the policy it is reasonable to conclude that proviso a of para 3 of Section II is a mere condition affecting the rights of the insured who effected the policy and the persons to whom the cover of the policy was extended by the company and does not come in the way of third parties  claim against the company on account of its claim against a person specified in para 3 as one to whom cover of the policy was extended
It has been contended for the appellant that it was not incumbent on the owner of a car to take out a policy of in surance indemnifying himself or any person permitted to drive the car and that if he does not insure the car and uses it he runs the risk of prosecution under section 125 of the Act
This is 878 true but has no relevant effect on the question for decision before us
Asnani did insure his car with respect to liability against third persons
We have to see whether the company on account of undertaking that liability can be said to have insured Pessumal on account of his driving the car with the permission of Asnani
The same may be said about the other contention for the appellant that there is nothing in the Act which makes it compulsory for an insurer to insist that the owner of the car takes out a policy in the widest terms possible covering any person who drives the car with his permission
The company did agree under the policy to indemnify drivers who drove the car with the insured s permission
The question is whether that undertaking covers Pessumal
Lastly we may mention that the question about tie proper stage at which the question raised by the company in the Chamber notice is to be decided came up for consideration at the hearing
We however do not propose to express any opinion on that point in this case
We are of opinion that the High Court rightly held that the company had insured Pessumal in view of para 3 of Section II of the policy and that it comes within the expression insurer  in section 96 of the Act
We therefore dismiss the appeals with costs of hearing one set
Appeals dismissed


Summary:
A had insured his car with the appellant under a comprehen sive policy
A permitted B who had insured his own car with another company to drive his car and while B was driving the car it met with an accident
As a result of the accident died and D sustained serious injuries
Both C and D were in the car
The heirs of C and D filed suits for damages
Notices under section 962 of the were issued to the appellant who thereupon took out a Chamber Summons contending that the notice was bad in law
Alternatively it was contended that the appellant be permitted to defend the suit in the name of the defendant
The Court held that the notices were bad
The plaintiffs filed Letters Patent appeals with success and the Chamber Summons were dismissed and the trial Judge was directed to hear the alternative prayer
Against this Order the present appeal was filed with special leave
The contention of the appellant was that in view of para graph 4 of B s own policy issued by the other company which indemnified B against any liability incurred by him whilst personally driving a private car not belonging to him or hired by him
under a Hire Purchase agreement B was not included among persons indemnified in para
3 of A s policy which the appellant had issued on account of proviso a to the said para
The respondent contended that this proviso is not a limitation on the class of persons indemnified under para
3 that class being the drivers driving A s car insured under the policy but merely amounted to a condition affecting the liability of the company vis a vis the driver who was entitled to be indemnified under any other policy
Held i From a consideration of sections 93 94 95 and 96 of the it follows that if under the terms of the policy B can be said to be the person insured under Para 3 of the policy the company would be liable to satisfy the decree if any passed against B iiThe appellant by agreeing with the person who effects the policy to insure him against liability to third parties takes upon itself the entire liability of the person effecting the insurance
It is open to the insurer not to extend the indemnity to the insured to other persons but if it extends it to other persons it cannot restrict it vis a vis the right of the third party entitled to damages to recover them from the insured a right which is not disputed
A proviso meant to exempt certain persons from the general classification will have to be related to considerations affecting it and is not to be related to such classified person s right to indemnity from any other insurer
iiiThe cl
4 of section II of B s policy with the other company does not make that policy to be a policy within the meaning of LPD1SCI 28a 368 s94 of the Act in relation to A s car by whose user B incurred liabilities sought to be established in the two suits
Such a policy and any indemnity under it cannot be used for sub classifying drivers specified in the policy issued to A by the appellant
ivThe High Court was correct in holding that the ap pellant had insured B in view of para
3 of section II of that policy and that it comes within the expression insurer in section 96 of the Act