(1.) THE records were called for and are before me today. The insurance policy, which the insurers counsel has relied on, is exhibit P-1 and I have perused the same. Counsel relied on condition No. 1 of the conditions of the policy to submit that no notice, contemplated thereunder, having admittedly been given to the insurer, the latter is not liable to be saddled with any liability which has been attached to it by the award passed in the instant case by the Tribunal. That is the only short point on which a decision has to be rendered by me in this appeal.

(2.) SHRI Dubey has relied on three decisions rendered by courts in comparable jurisdiction. The first decision is the one rendered by a High Court in Malaysia in the case of Public Insurance Co. Ltd. v. Lee Chau [1969] ACJ 452. The second one is of the Court of Appeal in England in the case of Alien v. Rables [1970] ACJ 299 (CA). In the third decision, which is of the Privy Council in New India Assurance Co. Ltd. v. Yeo Beng Chow alias Yeo Beng Chong [1973] ACJ 200 (PC), the appeal was heard from a judgment rendered by the Federal Court of Malaysia. These decisions do not at all bother or trouble me, because the law in India is codified and I have a right to look to the provisions of Chapter VIII of the Motor Vehicles Act, 1939 (for short, "the Act"), to decide the issue. What is the law in England or in Malaysia may be relevant for the consideration of those decisions. But, the same is not relevant for the purpose of the decision of the case before me. The rights of the parties in this case, the claimants, the owner and the driver of the offending motor vehicle and the insurer are regulated exclusively by the provisions of Chapter VIII of the Act. I propose, therefore, to refer immediately to Sub-section (2) (b) of Section 96 of the Act as also to Sub-section (6) thereof. Reference has also to be made to Sub-section (3) of Section 97.

(3.) I have no doubt at all about the purport of the provisions contained in Sub-section (2) (b) of Section 96 which, I must say, meets squarely and fully Shri Dubeys objection. I have no mind at all to hear him argue or to accept his argument that Clause (b), which I quote below, is not exhaustive, but is illustrative of the defences open to the insurer. I quote :

". . . . an insurer to whom notice of the bringing of any such proceeding is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely : - -. . . (b) that there has been a breach of a specified 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 ; or (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 conditon excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion ; or"

(4.) I must say so because I am required to say this by the statute. There is a mandate on me to say so as underwritten in Clause (b) of Sub-section (2) of Section 96, which exhaustively refers to the "following conditions", namely, the conditions enumerated in Sub-clauses (i), (ii) and (iii) thereof and nothing else. For breach of only the enumerated conditions, the insurer can avoid its or his liability ; and not for any other conditon of the policy of insurance. What is merely contemplated under the law in India is that when a proceeding is initiated to claim compensation for loss or injury suffered in a motor accident, the insurer has to be notified of the accident as required by Sub-section (2) of Section 96 which clearly also envisages the only defences which are open to an insurer in such cases. This is made very clear by the language of Sub-section (2) of which I quote the relevant portion :

". . . 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,. . . "

(5.) WHAT is the object of condition No. 1 of the policy, I asked Shri Dubey. He replied immediately that the object was to conduct negotiations with the parties for an amicable settlement out of court. If that is so, where the purpose is defeated if the notice is given under Sub-section (2) of Section 96 and indeed, it is for this purpose that Legislature has made the provision for prior notice being served on the insurer to enable him to make such negotiations ; Sub-section (6) pre-empts subsequent objections. I must, therefore, read condition No. 1 to be merely complementary to the statutory provisions and I must also say that it is not one of those conditions which are to be found in Clause (b) of Sub-section (2) of Section 96, which would entitle the insurer to avoid liability under an award passed by the Tribunal. According to me, Sub-section (6) has overriding effect: absence of policy notice would not kill the action.

(6.) WHAT has happened in the instant case is that the Tribunal has saddled the liability of the award solely and wholly on the owner, which was fixed at Rs. 7,000 only. This amount being covered by the statutory liability of insurer, it ought to have been saddled wholly and solely on the insurer. This I say on the authority of Narmada Choudhury v. Motor Accidents Claims Tribunal [1985] 58 Comp Cas 596 (Gauhati) and I do not propose to depart from the view taken by me in that case. Speaking for the Division Court in that case, I had said that the liability of the insurer is indefeasible and conclusive and it is the bounden duty of the Tribunal in passing the award to specify the liability in terms of Section 110b of the Act and in doing so, specify that the amount which falls within the statutory liability of the insurer must be paid by the insurer. I say no more because nothing more is submitted and nothing more indeed had to be submitted. The findings on the question of rash and negligent driving are unimpeachable and are not disputed. The quantum is also so meagre that it would be a futile exercise to dispute the same.

(7.) THE only prayer of Shri Dubey which I have to consider is, whether I should say anything about the right to recover anything in any other proceedings, of the amount the insurer has to pay under this award, from any person. I do not feel called upon to say anything on this prayer except that if law allows such a course, it will be open to the insurer to take recourse to that course.

(8.) IN the result, this appeal, which is preferred by the owner of the motor vehicle, is allowed with the direction that the sum awarded, namely, Rs. 7,000 payable to the claimant, the first respondent, shall be paid by the second respondent, the insurer, within a period of two months from today, with costs and interest awarded by the Tribunal.