As a result of an accident at about 9-30 PM on 21st May 1947 in which the motor lorry belonging to the first defendant and the motor bus belonging to the second defendant were involved, the plaintiff, a passenger in the bus, got his right arm crushed. Eventually that arm had to be amputated. The first defendant had insured the lorry with the third defendant, and the second defendant had taken out a policy issued by the fourth defendant. The plaintiff claimed Rs. 20,000 as damages, and he laid the suit against both defendants 1 and 2. In response to the notice issued through Court under S. 96(2) of the Motor Vehicles Act, defendants 3 and 4 applied to the Court and obtained permission to be impleaded as party defendants to the suit.

The plaintiff pleaded that the accident was caused by the negligence of the drivers of both the vehicles; alternatively, he pleaded that one or the other of the drivers was guilty of negligence, which eventually re suited in the plaintiff being injured. Defendants 1 and 2 in effect each charged the driver of the other with responsibility for the accident. Defendants 1 and 2 each pleaded that it was the plaintiff who had his right arm thrust outside the bus in which he was travelling, and that was really responsible for the injury to the arm. Neither of the Insurance Companies, defendants 3 and 4, set up any of the defences enumerated in S. 96(2) of the Motor Vehicles Act. In effect each, Insurance Company supported the pleas set up by its policyholder.

Issue 5 in the suit was, what is the liability of defendants 3 and 4, if any?

The learned Subordinate Judge found that there was a collision between the bus and the lorry, and the learned Subordinate Judge further found that it was the negligence of the driver of the lorry owned by the first defendant that led to that collision. The learned Judge therefore fixed the responsibility for the negligence on the first defendant and decreed Rs. 5,000 as damages payable by the first defendant to the plaintiff. On issue 5 the learned Judge recorded:

“No finding is given on issue 5 as it is unnecessary in this suit.” The first defendant appealed. The plaintiff filed a memorandum of cross-objections, claiming a further sum of Rs. 5,000 as compensation.

It should be easy to dispose of the contention of the first defendant, negatived by the lower Court, that the plaintiff had at least contributed by his negligence to the damage to his arm that he sustained that day by keeping his arm outside the bus. It is really a little difficult to visualise even the possibility of the plaintiff's arm being thrust through the widow of the bus behind his back. It was not disputed that the seat occupied by the plaintiff ran alongside the bus and that the plaintiff was seated with his back to the wall of the bus nearest the driver. The contention of the first defendant is to be accepted, the plaintiff must have thrust out his arm behind his back, an inconvenient position normally difficult to visualise. There was no specific evidence to prove that either. Even if the plaintiff bad rested his elbow on the widow and most of the witnesses swore that the plaintiff had not even done that, that would not amount to any proof, of negligence on the, part of the plaintiff. It was common ground that the road was about 60 ft. wide, and the metalled portion itself was 16 ft. wide. There was thus ample clearance for the bus and the lorry travelling in opposite directions; and obviously the first defendant could not claim the right to take his lorry within an inch or less of the bus coming from the opposite direction. On the evidence on record, the learned Subordinate Judge was right in holding that the plaintiff had in no way contributed to the injury to the arm that he sustained that day.

That there was a collision between the lorry and the bus could not really be in doubt. Both the drivers virtually admitted it in the report which each of them lodged soon after the occurrence with the police. The quantum of damage sustained by the bus and the lorry could not be ascertained as the vehicles had apparently been repaired by their respective owners before the suit came on for trial. Obviously the plaintiff could not be held to blame for not letting in evidence to prove with precision, the damages sustained by each of the vehicles, the lorry and the bus.

The next question is, is there material on record which entitles the first defendant-appellant to invite a finding, that the learned Subordinate Judge erred in holding that it was the driver of the lorry that was guilty of negligence.

The learned Subordinate Judge was right in the view he took, that the burden did not lie on the plaintiff in such a case as this to prove affirmatively to the exclusion of the driver of the bus that the driver of the lorry alone was guilty of negligence. Palghat Coimbatore Transport Company Ltd. v. Narayanan (1). Varadachariar J. quoted with approval the principles enunciated by Sir Frederick Pollock in his book on Torts:

“………in such a case the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as to remotenesss of damage, the plaintiff is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons though in any case he cannot recover in the whole more than his whole damage.”

In Hummerstone v. Lear (2), Bray J. pointed out:

“When once a state of facts was proved………from which the reasonable inference to be drawn was that prima facie one if not both drivers had been negligent, the plaintiffs were entitled to call on the defendants for an answer, and the proper time at which to decide whether on the evidence one defendant or the other defendant or both the defendants were liable was at the close of the whole case.”

It was that course the learned Judge adopted in this case. It was on a consideration of the entire evidence on record, including the testimony of D.W 1, the driver of the lorry, apparently the only witness called by the first defendant,—that the learned Judge came to the conclusion, that it was the driver of the lorry that had been negligent. That finding was virtually based on the appreciation of the oral evidence on record; and I see no real justification for differing from the learned Judge who had the advantage of hearing the witnesses. The entire evidence was discussed in full by the learned Judge, and there is little that I can add to it. On the evidence on record the learned Subordinate Judge was right in coming to the conclusion, that the fault was that of the driver of the lorry. The learned Advocate General contended that, if the evidence of the witnesses called by the plaintiff and by the first defendant were true, that D.W 1, the driver of the lorry, did not dim his lights, the driver of the bus should have been blinded and in the normal course should have swerved too late to avoid the collision. There was really no evidence to prove that, the bus driver did swerve. As I said on the evidence on record, the learned Judge rightly fixed the responsibility for the accident on the driver of the lorry.

The learned Advocate General urged that the learned Subordinate Judge should have recorded a finding on issue 5, declaring the liability at least of the third defendant, the Insurance Company with whom the first defendant had insured the lorry. The learned Subordinate Judge observed:

“The plaintiff in this suit did not implead these companies as parties and did not pray for any decree or relief against these defendants. As no relief is prayed for in this suit against these defendants, the question of liability by the Insurance Companies to defendants 1 and 2 need not be gone into in this suit and it is not gone into.”

The learned Advocate General was right in his contention, that these observations of the learned Subordinate Judge are rather wide, and that the learned Subordinate Judge apparently failed to keep in view the statutory provisions of S. 96(1) of the Motor Vehicles Act which certainly imposed a statutory liability on the Insurance Company. The relevant portion of S. 96(1) runs:

“………notwithstanding that the insurer may be entitled to avoid or cancel………the policy, an 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.”

The requirements of S. 96(2) were satisfied by the plaintiff in this case, because notice was given through Court to the “insurer”, that is, the third defendant. I have already pointed out that none of the defences open to the third defendant listed in Sub-Cls. (a), (b) and (c) of S. 96(2) was availed of by the third defendant in this case. The scope of S. 96 was explained by Chagla, C.J, in Royal Insurance Co., v. Abdul Mahomed .

“Therefore, the object of providing for a notice to the insurance company is really two-fold. One is to enable it to defend the action in its own right and in its own name if it is challenging the claim on any of the grounds mentioned in S. 96(2). But the other purpose and object of the notice, which is equally important, is to give intimation to the insurance company that an action has been started against the defendant so as to enable the insurance company to see that action is properly defended and that the decree does not go against the defendant by default or that a decree is not passed conclusively against the defendant.”

The learned Chief Justice pointed out earlier, that when an insurance company does not want to defend the action on any of the grounds listed in S. 96(2) of the Motor Vehicles Act, it is not entitled under that section to be made a party and to defend the action in its own right. In the present case, however, despite the tact, that the third defendant, the insurance company, did not put forward any of the defences open to it under the provisions of S. 96(2) of the Act, it applied to the Court and was impleaded as a party defendant in the suit. The question is, should that suffice to make the third defendant jointly liable along with the first defendant for the payment of the damages decreed to the plaintiff?

Section 6(1) lays down the statutory liability of the insurance company to pay the amount due under a decree. That liability could be enforced, the section declares, as if the insurance company were a judgment-debtor. So, even if the insurance company is not eo nomine a party defendant, that statutory liability could be enforced. In such a case, where the insurance company is not eo nomine a party defendant, there can be no scope for embodying in the decree itself the direction, that the insurance company should pay the amount decreed either independently of the policy holder or jointly with the policy holder. The position could not be really different where the insurance company is made a party defendant to the suit on its own motion. It should be remembered that the plaintiff is not himself entitled to implead the insurance company as party defendant. The only statutory liability imposed on the plaintiff is to issue a notice to the insurance company through Court. It is the insurance company that is given the right to bring itself on record as a party defendant, but that can be only for the limited purposes listed in Sub-Cls. (a), (b) and (c) of S. 96(2). The plaintiff cannot insist on the insurance company bringing itself on record as a party defendant. And Outside the contingencies provided for by Sub-Cls. (a), (b) and (c) of S. 96(2), the insurance company would not be entitled either to bring itself on record as a party defendant. In the present case, as I have already pointed out, none of the statutory defences open to the insurance company under S. 96(2) was availed of by the insurance company.

That the primary liability for the negligence of his servant, was that of the master, the first defendant in this case, should be obvious. The plaintiff cannot be compelled to look to some one other than the first defendant for the damages decreed to the plaintiff. No doubt the statutory liability imposed on the insurance company by S. 96(1) of the Act could be enforced. The question is really one of procedure. The liability could be enforced as if the insurance company were a judgment, debtor, even though the insurance company is not a party defendant and is not eo nomine a judgment-debtor. That would really be the position in this case. The first defendant is not therefore entitled to ask that the third defendant should be made eo nomine a judgment-debtor in this case. The learned Advocate General explained the differences between the law on the subject in England and the law embodied in the provisions of S. 96 of the Motor Vehicles Act in India. It may not be necessary to deal at length with this aspect of the case, because as the learned Advocate General pointed out the Court is bound by the provisions of S. 96 of the Act. As I have stared above, S. 96(1) provides for the enforcement of the statutory liability of the insurance company even where it is not eo nomine a judgment-debtor under the decree. Under what circumstances the insurance company could itself be made a judgment-debtor eo nomine in a suit for damages, it is not necessary to discuss in this case. The position is, the plaintiff did not seek to make the third defendant a judgment-debtor under the decree. The Court did not make the third defendant eo nomine a judgment-debtor. Nonetheless, the statutory liability of the insurance company imposed by S. 96(1) cannot be avoided by the insurance company; but to enforce that liability it is not necessary in the circumstances of this case to make the third defendant exclusively liable for the amount decreed, or even jointly liable along with the first defendant by the very terms of the decree.

The contention of the learned Advocate General, however, that some of the observations of the learned Subordinate Judge are rather wide off the mark would appear to be well founded. In my opinion, in the circumstances of this case, the proper finding on issue 5 should be, that the liability of the third defendant is that declared by S. 96(1) of the Act. Despite that modification, the decree of the lower Court calls for no interference. Subject to what I have recorded above with reference to issue 5; the decree of the lower Court will stand confirmed; and the appeal is dismissed with the costs of the plaintiff-first respondent in appeal.

The only other question for consideration is the quantum of damages. In his memorandum of cross objections the plaintiff asked for Rs. 5,000 more, that is, Rs. 10,000 in all.

On the evidence on record the learned Subordinate Judge found that the plaintiff should have been earning as a cycle repairer only Rs. 25 to Rs. 30 per month before the accident in which he lost his arm. The learned Subordinate judge, was of the view, that, though the plaintiff could no longer pursue that avocation, it was certainly open to him to earn his livelihood helped by the amount of Rs. 5,000 which 1 he could get under the decree. It was on that basis that the learned Subordinate Judge assessed the damages at Rs. 5,000. I see no reason to differ from the learned Subordinate Judge, who found that the:plaintiff had been earning only Rs. 25 to Rs. 30 per month before the accident. Though the assessment of damages has to be on a just basis, in the circumstances of this case it could only be on a rough and ready basis. I am unable to hold that the learned Subordinate Judge went wrong in assessing the damages at Rs. 5,000. The memorandum of cross-objections is dismissed but in the circumstances of the case, there will be no order as to costs on the memorandum of cross-objections.

Other respondents do bear their respective costs. Plaintiff to pay the court-fee on the memorandum of cross-objections.

V.C.S