R.N. Misra, J.

1. The insurer carried an appeal under Section 110D of the Motor Vehicles Act of 1939 (hereinafter referred to as the Act) to this Court against the award of compensation passed by the 2nd Motor Accidents Claims Tribunal and the said appeal was registered as Miscellaneous Appeal No. 128 of 1974. Before the Tribunal, the owner of the vehicle as also the insurer had contested the claim and after hearing parties, the Tribunal allowed compensation of Rs. 21,324/-. During the pendency of the appeal, a full Bench of this Court in the case Notional Insurance Company v. Magikhia Das 1976 A.CJ. 239, held that an insurer was not entitled to resist a claim on grounds not enumerated in Section 96(2) of the Act. The Appellant thereupon made an application for converting the Miscellaneous Appeal into a Civil Revision and on 15.6.1976, a learned Single Judge allowed the conversion. The appeal therefore, came to be registered as Civil Revision No. 162 of 1976. The insurer also made an application on 12.7.1976 for a writ of certiorari for quashing the same award and that application has been registered as O. J. C. No. 762 of 1976 and is pending disposal.

2. The maintainability of the revision application has been challenged on two grounds:

(i) The Claims Tribunal under the Act is not a Court and, therefore, Section 115 of the Code of Civil Procedure has no application ; and

(ii) As the award is subject to appeal merely because the award is not open to challenge at the instance of the insurer except on specified grounds, it cannot be said that it is a case in which no appeal lies to the High Court. Therefore, the revision is also not maintainable.

3. Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code) provides:

The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity ;

the High Court may make such order in the case as it thinks fit.

If the Motor Accidents Claims Tribunal is not a Court the award made by it is certainly not open to interference in exercise of this Courts revisional jurisdiction. Section 110 of the Act empowers the State Government by notification in the official Gazette to constitute one or more Motor Accidents Claims Tribunals. Sub-section (2) provides that such Tribunal shall consist of such number of members as the State Government may think fit to appoint. Sub-section (3) prescribes the qualification for appointment as member of such Tiibunal. It has now to be found out whether the Tribunal appointed under Section 110 of the Act is a persona designata or a court.

4. Hidayatullah, C. J. (as the learned Chief Justice then was) speaking for a Full Bench in the case of Ram Milan and Anr. v. Bansilal Tejsingh and Anr. : A.I.R. 1958 M.P. 203, stated that persona designata means:

A person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.

In the case of Shah Jagmohandas Pursho-Itamdas and Anr. v. Jamnadas Vrajlal Gandhi and others : A.I.R. 1965 Guj. 181, [LQ/GujHC/1962/148] Bhagwati J. (as the learned Judge then was), was examining whether use of the term District Judge in a scheme framed under Section 92 of the Code meant a persona designata or a court for the purposes of maintainability of a revision application under Section 115 of the Code against an order made by the District Judge and noted that in the scheme as originally framed by the District Court, functions had been assigned to the District Judge. In appeal, however, the High Court substituted the word District Judge by District Court The learned Judge observed:

...When the High Court departed from language used by the District Court in the Scheme as originally farmed and changed the expression from District Judge into District Court it would be a fair presumption to make that the alteration in the language was intentional. Had it been the intention of the High Court that the powers should be vested in the District Judge as a persona designata the High Court would have certainly retained the expression District Judge as appearing in the Scheme as originally framed by the District Court. There was no reason for the High Court to make any change in expression unless the intention was that the powers under the modified Scheme should be vested not in the District Judge as a persona designata but in the District Court as a Court of law. That is the only assumption on which the change of language can be explained...

In the case of Onkar Dutta Shastri v. The Bihar Hindu Religious Trust Board, Patrur : A.I.R. 1960 Pat. 164 [LQ/PatHC/1959/144] the question for consideration was whether the District Judge as the Appellate Authority against the order of the Superintendent ol Bihar State Board of Religious Trusts functioning under the Bihar Hindu Religious Trust Act of 1950 was court or a persona designata. Misra, J (as the lear-ned Judge then was), referred to the tests indicated in the case of Kiron Chandra Rose v. Kalidas Chattelji : A.I.R. 1943 Cal. 247, and found that the District Judge was a persona designata and not a court.

According to the Law Lexicon of British India by Iyer, persona designata means:

Where a person is indicated in a statute or legal instrument not by name, but either by an official designation or as one of a class, a question sometimes arises whether he ceases to be the person so indicated not losing his official designation or his character as one of the class or whether the intention was to single him out as a persona designata, that is, as an individual, the designation being merely a further description of him. Designatio persona then, in general, means simply the singling out by description of a party to a deed or contract or a person taking thereunder such party or person being in turn called persona designata. When difficulty is found in as certaining whether a person takes a persona designata, the maxim -Designa tio unius est exclusio alterius et expressum facit cessare taciturn is applicable; in other words, if one person is specified another is excluded on the principle that what is expected makes what is onlv understood to give way.

The test applicable for the determination of the dispute is to find out whether the person who is named as an individual or is designated by his office is the person who is selected to exercise the power by excluding others from the exercise of such power. If the answer is in the affirmative, then such oer-son becomes persona designata.

5. Reference to Section 110 of the Act which provides for the constitution of the Claims Tribunal clearly shows that the appointee is a particular person and others belonging to a class, such asJudges of the High Court, District Judges or Subordinate

Judges are excluded. In the absence of appointment as the Claims Tribunal, any person having the qualifications prescribed in Section 110(3) of the Act would not be competent to act. If, for instance, the Act would have provided that claims under the Act shall be preferred before the District Court, no particular notification for conferment of jurisdiction would be necessary for for exercise of power and every person acting as District Court would function as the Tribunal. In that event, qua Tribunal, the statutory authority would have been a court.

We may turn to certain authorities cited at the Bar. Mr. Jagadeb Ray for the Petitioner relies upon the observations of the Supreme Court in the case of Thakut Jugal Kishore Sinha v. Sitamarhi Central Cooperative Bank Ltd. and Anr. : A.I.R. 1967 S.C. 1494, wherein the Court was considering whether an authority exercising powers of a Registrar under the Bihar and Orissa Co-operative Societies Act was a court for the purposes of the Contempt of Courts Act. Mitter, J, speaking for the Court observed:

It will be noted from the above that the jurisdiction of the ordinary civil and revenue Courts of the land is ousted under Section 57 of the Act in case of disputes which fell under Section 48. A Registrar exercising powers under Section 48 must, therefore, be held to discharge the duties which would otherwise have fallen on the ordinary civil and revenue Courts of the land. The Registrar has not merely the trappings of a Court but in many respects he is given the same powers as are given to ordinary civil Courts of the land by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of Courts mentioned in Section 151 of the Code of Civil Procedure. In such a case there is no difficulty in holding that in adjudicat-ing upon a dispute referred under Section 48 of the Act, the Registrar is to all intents and purposes, a Court discharging the same functions and duties in the same manner as a Court of law is expected to do.

The learned Judges quoted with approval the meaning assigned to court in Hals-burys Law of England where it has been stated:

Originally the term Court meant, among other meanings, the Sovereigns palace ; it has acquired the meaning of the place where justice is administered and, further has come to mean the persons who exercise judicial functions under authority derived either immedi-dately or mediately from the Sovereign. All tribunals, however, are not Courts, in the sense in which the term is here employed, namely; to denote such tribunals as exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction....

The question is whether the tribunal is a Court, not whether it is a Court of justice, for there are Courts which are not Courts of justice. In determining whether a tribunal is a judicial body the facts that it has been appointed by a nonjudicial authority, that it had no power to administer an oath, that the chairman has a casting vote, and that third parties have power to intervene are immaterial, especially if the statute setting it up prescribes a penalty for making false statements ; elements to be considered are (1) the requirement for a public hearing, subject to a power to exclude the public in a proper case, and (2) provision that a member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings.

The learned Judges thereafter referred to judicial decisions and ultimately held that Assistant Registrar while determining a dispute under the Co-operative Societies Act was functioning as a Court. The question as to whether the Assistant Registrar would be persona designata was not at all raised obviously because under the Bihar & Orissa Co-operative Societies Act, jurisdiction to decide disputes was conferred on every Assistant Regist ar under an appropriate notification and not on a specified person only. In fact, the distinction drawn by us above justifies as to why the question of persona designata was not at all raised before the Supreme Court.

He next relied upon a decision of the Madhya Pradesh High Court in the case of Radhabai Bhikaji v., Baluram Daluram 1976 A.C.J. 403 wherein a Bench of that Court came to hold:

...The word civil Court has not been defined in Section 2 of the Act, and the entire trend of Section 3(5) is towards prohibition of duplication of proceedings not merely in a Court functioning under the Code of Civil Procedure or the local Civil Courts Act but any Court competent to notice the injury and grant compensation, such as any statutory Tribunal for example, the Motor Accidents Claims Tribunal....

Apart from the reference to Motor Vehicles Tribunal as an instance, there is nothing in the decision to support Mr. Jagadeb Rays stand. There is no discussion of the principle to be applied and we are not prepared to accept this decision as an authority for holding that the Tribunal under the act is a Court.

Reliance is next placed on a Single Judge decision of the Gujarat High Court in the case of Shardaben v. MI. Pandya and Anr. 1971 A.C.J. 222. The question for consideration was whether a claim could be laid in forma pauperis as provided under Order 33, Code of Civil Procedure. For determining that question. Mehta, J, proceeded to examine whether the Tribunal under the Act was a court. Reliance was placed on the decision of the Supreme Court which we heve already referred to above and conclusion was reached that the Tribunal was a court and, therefore, Order 33 of the Code of Civil Procedure was applicable to a proceeding before it. The distinction between court and persona designata had not been raised and merely on the basis that the Tribunal was conferred with most of the powers of the civil Court, conclusion was reached that the Tribunal was a court.

The other decision on which reliance is placed by Mr. Jagadeb Ray is the case of Krishan Gopal and Ors v. Dattatrya 1971 A.C.J. 372, where there was difference of opinion between two learned Judges of the Madhya Pradesh High Court and the matter was ultimately placed before a third Judge. Initially Raina J., before whom the revision petition had been placed directed the case to be referred to a Division Bench for considering whether the Claims Tribunal was a court or not. The case then came up before a Division Bench consisting of Sen and Raina JJ. Sin, J., came to bold that the Tribunal was a court while Raina, J., held otherwise. The matter was then placed before Bhave, J., who agreed with Sen, J. Undoubtedly, the decision supports the stand of Mr. Jagadeb Ray, but we must indicate that the distinction drawn before us between a court and a persona designata was also not appropriately dealt with in this case.

7. Mr. Patnaikin support of the preliminary objection, on the other hand, relies on a series of authorities. In the case of Khairunnissa A K. Siddiki and Ors. v. The Municipal Corporation, Bombay and Ors. 1966 A.C J. 37, a Bench of the Bombay High Court was considering the question of maintainability of a claim without notice under Section 527 of the Bombay Municipal Corporation Act (corresponding to Section 80 of the Code of Civil Procedure Code) and incidentally held that the Tribunal was not a Court. In the case of Harbans Singh v. Atma Singh and Ors. 1966 A.C.J. 172 a learned Single Judge of the Punjab High Court came to hold that the Claims Tribunal was a persona designata notwithstanding the fact that it had been given a jurisdiction which has been taken away from an ordinary civil Court and it has been given some of the powers of a civil Court. The reasonings given by Narula, J (as the learned Judge then was) in the Punjab High Court in the case of Ram Sarup and Anr. v. Gurdev Singh and Anr. 1966 A.C.J. 240, while examining whether the commissioner under the Workmens Compensation Act would be a court. support the view that the Claims Tribunal would not be a Court. The Allahabad High Court in the Case of Satish Chandra and Ors. v. State of Uttar Pradesh 1971 A.C.J. 180, held that the Claims Tribunal was not a court and, therefore, its decision was not amenable to revisional jurisdiction of the High Court. The Rajasthan High Court in the case of Laxminarain Misra v. Kailash Narain Gupta 1974 A.C.J. 79, examined the question at some length and came to hold that the Claims Tribunal under the Act was a mere Tribunal and not a Court. A learned Single Judge in this Court in the case of Vanguard Insurance Company Ltd. v. Janki Amma and Ors. 1971 C.W.R. 158, has held that the Claims Tribunal is not a Court. Though there is no reasoning given and the conclusion was reached mostly on concession of counsel, we are of the view that the conclusion is in accord with the law.

From the discussion made above, it follows that the Claims Tribunal is a persona designata and not a court. Therefore, the Claims Tribunal is not amenable to the revisional jurisdiction of this Court.

8. The next question for consideration is as to whether the award of the Tribunal is open to challenge in the revisional jurisdiction, as an appeal lies to the Court.

Section 110D of the Act provides:

(1) Subject to the provisions of Sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award prefer an appeal to the High Court Provided.

(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than two thousand rupees.

In this case, the award is more than Rs. 2,000/- and the appeal under the Act lay to this Court. Under Section 96(2) of the Act, the insurer is entitled to defend an action for claim only on three grounds namely:

(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later-than fourteen days after the hap pening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105, or (b) that there has been a breach of a special condition of the policy, being one of the following conditions, namely:

(i) a condition excluding the use of the vehicle,

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side-car being attached, where the vehicle is a motor cycle; 01 (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (c) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.

In the Full Bench decision this of Court in the case of National Insurance Company v. Magikhia Das (supra) this Court held:

On a plain reading of the lines quoted above from the judgment of the Supreme Court, it appears to us that the Court has said that the insurer must have reserved to it by the policy the right to defend the action in the name of the assured and the insurer must defend in the name of the assured in order that the restriction put under Section 96(2) of the Act goes and all the defences available to the assured are available to the insurer. The phrase if he does so does not have the narrow interpretation, as given to it by counsel in support of the appeal, namely, that the insurer has reserved to it the right to defend in the the name of the assured. If that was the real meaning intended to be given to the phrase, after it has already been said that the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured there was no necessity to add. What was really intended to be said was that such a condition was there under the terms of the policy and the insurer was out to raise the defence in exercise of the right. Most of the cases cited to us have followed the dictum of the Supreme Court in this sense though in one or two Courts a different view has been taken. Each of the cases that was cited to us at the Bar, however, seems to be one where the insured had not entered contest i.e., both the insurer and the insured were not contesting simultan eously. It is unnecessary to give a catalogue of such cases. Where the insured appears and defends the claim and the insurer intends to defend in his own name, the condition in the policy bond does not provide shelter to the insurer.

It was further held in the Full Bench decision that the restrictions of Section 96(2) would apply to an appeal under Section 110-D of the Act. It is, therefore, clear that though an appeal against the award at the instance of the insurer lies to this Court, it is open only on the grounds indicated in Section 96(2) of the Act. Mr. Jagadeb Rays contention is that as the right of appeal is not unrestricted, a revision lies on grounds on which no appeal lies. Such a submission has absolutely no ground to stand upon. Such a distinction has not been maintained in Section 115 of the Code of Civil Procedure. On the other hand, once it is found that at the instance of the insurer an appeal lay to the High Court, the award ceases to be amenable to revisional jurisdiction.

9. Both the preliminary objections are sustained and the revision petition is accordingly dismissed with costs. Hearing fee is assessed at rupees one hundred.