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Eagle Star Insurance Co. Ltd. And Another v. L.V Kumar .
Judgment Summary — B.C. Misra, J. (Revisions Nos. 514-D & 515-D of 1965)
Factual and Procedural Background
The two civil revisions (Nos. 514-D and 515-D of 1965) were instituted by Eagle Star Insurance Company (petitioner No. 1 before the Court below) and by Mrs. M. Polak (petitioner No. 2) under section 115 of the Code of Civil Procedure. They were directed against an order of the Motor Vehicle Accident Claims Tribunal, Delhi dated 22nd July, 1865, in which the Tribunal held that diplomatic immunity from civil process covered the diplomat himself but did not extend to his wife.
On 11th October, 1964 Shri L.V. Kumar was driving a scooter when he was involved in an accident with a motor vehicle owned by the Embassy of the Polish People's Republic in India, allegedly driven by Mrs. M. Polak, wife of the Ambassador. Shri L.V. Kumar filed a claim under section 110-A of the Motor Vehicles Act, 1939 for Rs. 60,220 for injuries said to have resulted from the rash and negligent driving of Mrs. M. Polak. A separate claim was filed by Smt. Santosh Kumari (the claimant's wife), who alleged injury while riding as a pillion on the same scooter; these cases were consolidated.
The defence pleaded before the Tribunal was that both Mr. Polak and Mrs. M. Polak were immune from the process of the Court. The Tribunal framed preliminary issues including (1) whether respondent Nos. 1 to 3 enjoy diplomatic immunity and whether the petition was maintainable against them, and (2) whether the embassy is a legal person and whether the petition against respondent No. 3 is maintainable. The Tribunal concluded that Mr. Polak enjoyed diplomatic immunity but that the immunity did not extend to his wife. Aggrieved, the Insurance Company and Mrs. M. Polak sought revision in this Court, reiterating the plea of immunity for Mrs. M. Polak.
Legal Issues Presented
- Whether the diplomat (Mr. Polak) and members of his household (in particular his wife Mrs. M. Polak) enjoy immunity from civil process of municipal Courts.
- Whether proceedings could be maintained against the wife of the diplomat in the Motor Vehicle Accident Claims Tribunal.
- Whether the Motor Vehicle Accident Claims Tribunal is to be treated as a Court for purposes of immunity (raised in argument by reference to Bhagwat Singh v. State of Rajasthan and the distinction drawn with Industrial Tribunals).
- Whether the revision petitions under section 115 of the Code of Civil Procedure were competent (raised by respondent's counsel).
Arguments of the Parties
Petitioners (Eagle Star Insurance Company & Mrs. M. Polak)
- Maintained that Mrs. M. Polak, as the wife of the diplomat and a member of his household/retinue, enjoys diplomatic immunity from civil process and therefore proceedings against her are not maintainable in municipal Courts.
- Challenged the Tribunal's conclusion that immunity did not extend to the wife and sought to set aside that part of the Tribunal's order.
Respondent (Shri L.V. Kumar / Counsel for the respondent)
- Contended that municipal Courts in India are not bound by international law and are governed by domestic statutory provisions; therefore international law cannot be read into municipal procedure unless consistent with domestic statute.
- Relied upon sub-section (4) of section 86 of the Code of Civil Procedure (which treats the position of rulers of foreign States and ambassadors and refers to Central Government notifications specifying staff or retinue) to argue limits on extending immunity.
- Argued, relying on Bhagwat Singh v. State of Rajasthan, that the Tribunal below is not a "Court" and that proceedings before it are not a suit in the same sense as before civil courts (an argument pressed to challenge immunity in the Tribunal).
- Raised the point that revision petitions under section 115 CPC may not have been competent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Engelke v. Musmann, 1928 A.C. 433 | By international law (part of the common law), an Ambassador (and diplomatic agents generally) enjoy immunity from legal process in receiving State; the Ambassador requires similar immunity for his personal family (wife and children living with him) so that he may discharge his Sovereign's business; such privileges are for the benefit of the Ambassador unless waived. | The Court relied on Engelke to support the proposition that the wife of a diplomat should be granted immunity from civil and criminal jurisdiction, and that the diplomat's family's immunity is part of the law of nations incorporated into domestic law. |
| Macartney v. Garbutt, 1890 24 QBD 368 | Held that a person accredited as a member of an embassy is exempt from local jurisdiction unless received on the express condition of being subject to it; entitled to immunity from process unless waiver was agreed at time of reception. | The Court cited Macartney in support of the proposition that accredited members of an embassy are generally exempt from local jurisdiction, reinforcing the importation of customary international law principles on immunity. |
| Bhagwat Singh v. State of Rajasthan, A.I.R. 1964 S.C. 444 | Addressed whether certain tribunals are "Courts" and observed that discussion of what immunities a foreign sovereign would be entitled to in India was unnecessary in that case; was used to show that some tribunals may not be "Courts" for certain purposes (Industrial Tribunals). | The opinion records the respondent's reliance on this decision to argue the Tribunal below was not a Court; the Court distinguished Bhagwat Singh on its facts, observed the Motor Accident Claims Tribunal was "very much like a civil Court," and rejected the contention that Bhagwat Singh dictated the result here. |
Court's Reasoning and Analysis
The Court began by identifying the narrow point in controversy: whether the diplomatic immunity that protects the diplomat from municipal process extends to his wife. It examined authorities on customary international law and the treatment of diplomatic families and retinues. The Court relied on Oppenheim's Treatise on International Law (cited passages) which classifies members of an envoy's retinue and states that members of the family living with the envoy are generally granted exemption from civil and criminal jurisdiction and are inviolable and extraterritorial like the envoy himself. The Court noted Oppenheim's observation that an envoy's wife must be granted privileges concerning inviolability and extraterritoriality and that similar rules apply to a husband whose wife is an envoy.
The Court also considered English authority (Engelke v. Musmann and Macartney v. Garbutt) to show that international law principles recognizing diplomatic immunity and family immunity have been treated as part of the common law in England. The opinion then examined the interaction between municipal law and international law. It relied upon Oppenheim's and Maxwell's statements (as cited in the opinion) to the effect that customary international law, when universally recognized or accepted by the State, forms part of the law of the land unless a clear and unambiguous statutory provision compels a contrary construction.
The Court considered the domestic statutory provision invoked by respondent's counsel—sub-section (4) of section 86 of the Code of Civil Procedure—which provides that certain protections apply to rulers of foreign States, ambassadors and envoys, and to any member of their staff or retinue as specified by the Central Government. The Court noted that no notification under section 86(4) had been shown and did not find section 86(4) to be inconsistent with the established customary international law on the subject.
The Court observed that India is a party to the Vienna Convention on Diplomatic Relations, 1961 and quoted Articles 31 and 37 which provide that a diplomatic agent enjoys immunity from civil and administrative jurisdiction and that members of the family forming part of his household, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in the Convention. In the absence of any subsequent domestic statutory provision to the contrary, the Court indicated it was inclined to treat those Articles of the Convention as part of the law of the land and concluded that Mrs. M. Polak is immune from process of municipal Courts.
The Court addressed the respondent's submission (based on Bhagwat Singh) that the Tribunal was not a Court. It distinguished the facts of Bhagwat Singh, observed that the Motor Accident Claims Tribunal is "very much like a civil Court" and that its proceedings are a special method of enforcing and recovering claims (and are different from Industrial Tribunals under the Industrial Disputes Act). The Court therefore rejected the contention that Bhagwat Singh precluded immunity in this forum.
The Court made clear it was not deciding issues as to the substantive legal liability of the diplomat and his wife or the extent of the insurance company's liability — those questions were left to be decided on the merits. The limited relief granted was that no process of any kind would issue against Mr. or Mrs. M. Polak by the Tribunal below. The Court also expressly declined to make any pronouncement on the privileges of children and other members of the retinue, as that question did not arise.
Finally, although the competence of revision under section 115 CPC was challenged, the Court did not decide that question; instead it exercised powers under Article 227 of the Constitution to set aside the impugned order of the Tribunal and allowed the petitions.
Holding and Implications
Holding: The Court allowed the revision petitions, set aside the impugned order of the Motor Vehicle Accident Claims Tribunal and held that Mrs. M. Polak is immune from the process of the Tribunal below. The Court ordered that no process of any kind shall issue against Mr. or Mrs. M. Polak by the Tribunal below. There will be no order as to costs. (Final line of the opinion: "Petitions allowed.")
Implications:
- The direct effect is that proceedings in the Motor Vehicle Accident Claims Tribunal could not proceed by issuing process against Mr. or Mrs. M. Polak; the Tribunal's earlier finding that the wife did not enjoy immunity was set aside.
- The Court treated the relevant Articles of the Vienna Convention (Articles 31 and 37) and customary international law principles as forming part of the law of the land in the absence of subsequent inconsistent domestic statute, and applied those principles to recognize immunity for the diplomat's wife.
- The Court did not resolve the underlying questions of legal liability or the insurance company's civil liability; those matters were left to be decided on the merits in further proceedings.
- No pronouncement was made on immunity of children or other members of the retinue; the Court explicitly said that question did not arise and was not decided.
- No costs were awarded, and the Court exercised Article 227 powers rather than resolving the competence of revision under section 115 in this case.
Note: This summary is confined to the reasoning, findings and material expressly contained in the provided opinion and does not include any information inferred beyond that text.
B.C Misra, J.:— These two revisions (Civil) Revisions Nos. 514 D and 515-D of 1965) have been filed by Eagle Star Insurance Company (respondent before the Tribunal below) under section 115 of the Code of Civil Procedure and are directed against the order of the Motor Vehicle Accident Claims Tribunal, Delhi dated 22nd July, 1865, by which the learned Tribunal came to the conclusion that, diplomatic immunity from civil process of municipal Courts covered the person of the diplomat and did not extend to his wife.
2. The brief facts of the case are that the claimint in the Tribunal Shri L.V Kumar was on 11th October, 1964 driving his scooter No. D LN. 7941 when he was involved in an accident with motor vehicl) No. Cti 1427 which was owned by the Embassy of Polish Peool's Republic in India and it was insured with Eagle Star Insurance Company Limited, petitioner No. 1 before me. The said motor vehicle was allegedly being driven by Mrs. M. Polak, wife of the Ambassador. Shri L.V Kumar moved an application under section 110-A of the Motor Vehicles Act 1939 for award of compensation amounting to Rs. 60,220/- on account of damages for injuries caused to him in the accident which is alleged to have occurred on account of the rash and negligent driving on the part of Mrs. Polak. The claim was preferred against Mrs. Polak as well as her husband Mr. Polak A claim under the same circumstances was also made by Smt. Santosh Kumari, wife of the respondent Shri L.V Kumar, for injuries caused to her as she was riding on the back seat of the aforesaid scooter which is the subject-matter of the second revision.
3. The defence raised was that Mr. Polak and his wife Mrs. Polak both were immune from the process of the Court.
4. Both the cases were consolidated and on the pleadings of the parties, the following were framed as preliminary issues.
“1, Whether respondent Nos. 1 to 3 enjoy diplomatic immunity and the petition was not maintainable against them?
2 Whether the embassy is a legal person and the petition against respondent No. 3 is maintainable.?
5. The learned Tribunal came to the conclusion that Mr. Polak enjoyed deplomatic immunity but the same did not extend to his wife.
6. Aggrieved by the said order, the Insurance Company as petitioner No. 1 and Mrs. M. Polak as petitioner No. 2, have come to this Court in revision and have filed two revisions, one against Shri L.V Kumar and the other against his wife Smt. Santosh Kumari and they have reiterated the plea of immunity of Mrs. M. Polk from the process of the Court which they had raised before the Tribunal below.
7. In my opinion, the point involved is a short one. Oppenheim in his Treatise on International Law, Volume I, Eighth Edition, 1966 reprint, has laid down in paragraphs 401 and 412 on page 809 and 810 that the individuals accompanying an envoy officially or in his private service, or as members of his family, or as couriers, compose his retinue. The members of the retinue belong, to four different classes and that the third class of his retinue consists of the members of the family of the envoy, namely his wife, children and such of his other near relatives as live within his family and under his roof and it is a generally recognised rule of international law that all members of a legation are as inviolable. and exterritorial as the envoy, himself; They, must be granted by the receiving State exemption from criminal and civilrjurisdiction and they are considered, like the envoy himself, to retain their domicile within their home State Although the wife, of the envoy, his children, and such of his near relatives as live within his family and under his roof belong to him retinue, there is a distinction to be made as, regards their privileges. The wife must certainly be granted all his privileges in so far as they concern inviolability and exterritorialy. The same rules apply to the husband whose wife is an envoy. As regards the children and other-relatives, no other general rule of International Law can safely be. said to be generally recognised, than that they must be granted exemption from civil and criminal jurisdiction and although this rule was formerly not generally recognised, nowadays the exemption from civil and criminal jurisdiction of such members of an envoy's family as live under his roof is always granted. He has further in paragraph 417 observed that although the mission, and, therefore, the privileges of the enovy, come to an end on his death, the members of his family who resided under his roof, and the members of his suite, enjoy, their privileges until they leave, the country.
8. The House of Lords in Engelke v. Musmann . 1928 AC 433., 1928 Appeal Cises 433, observed, “by international law, which is part of the common law of this country, an Ambassador, by which term I intend to include diplomatic agents of all sorts-the stately Ambassador in the restricted sense of the word, the special envoy, the resident minister, and the charge affairs is sent by the one country and received by the ot;ier upon the term that he has among his ether diplomatic privileges immunity from legal process in the Courts ot the country which receives him. This immunity being accorded to him in order that he may transact his Sovereign's business, is a privilege which he cannot waive unless under direction from his Sovereign. The Ambissador further requires, in order that he may effectually do his Sovereign's business that there should be a like immunity for his personal family, that is to say his wife and his children if living with him and this privilege is a right privilege which may be waived by him but should unless waived by the Ambassador shall be taken to be for the benefit of the Ambassador.” In Macartney v. Garbutt . 1890 24 QBD 368,, the Court held that a British subject, accredited to Great Britain by a foreign Government as a member of its embassy, is (unless he has been received by the British Government upon the express condition that he shall be subject thereto) exempt from the local jurisdiction of his own country and entitled immunity from its process, unless the same had been agreed to be waived at the time of his being received in the country.
9. My conclusion, therefore, is that the diplomat is admittedly immune from the process of the Court. In that event, his wife should also be held entitled to the same privilege. The well established immunity of the diplomat would become meaning less, if it is not extended to his wife who lives with him and who in a sense is a part of his being and whose presence and inviolaibility are essential for the discharge of his official duties. I therefore, hold that the wife of the diplomat enjoys immunity from the process of civil and criminal Courts in India and the impugned order must be set aside. I am not making any pronouncement on the privileges of the children and other members of the retinue of the diplomat, as the question does not arise in the case before me.
10. Learned counsel for the respondent has, however, urged that the municipal Courts in India are not bound by the International law and they are governed by the provisions of the statutes of this courtry. The submission of the learned counsel would be correct if I had found some provisions of municipal law inconsistent with the aforesaid International Law on the subject. Again Oppeoheim in his Treatise on International Law, Eighth Edition, states in paragraph 21(a) on page 39 that as regards Great Britain, all such rules of customary International Law as are either universally recognized or have at any rate received the assent of this country are per se part of the law of the land. To that extent, there is still valid in England the common law doctrine to which Blackstone gave expression that the law of Nations is part of the law of the land and the same has been repeatedly acted upon by courts and apart from isolated obiter dicta, it has never been denied by Judges. However, so far as treatise which affect private, rights are concerned, they require for their enforcement by English Courts a modification of the common law or of a statute and must receive parliamentary assent through an enabling Act of Parliament However, English statutory law is absolutely binding upon English Courts even if in conflict with International law.
11. So far as U S. A. is concerned, the principle that International law is part of the law of the land has been adopted even more clearly. Such customary International law as is universally recognised or has at any rate received the assent of the United States, and further all international conventions ratisfied by the United States are binding upon American Courts, even if in conflict with previous American statutory law, but subsequent American Statutory law prevails if in conflict with previous customary or conventional International Law. Nevertheless, the incorporation of customary International Law as part of the law of the land, although it was first formulated in Anglo-American countries, is not confined to England and the United States and the position has for a long time been essentially the same in many other countries.
12. Maxwell in his Interpretation of Statutes. Twelfth Edition, under the heading “general presumption that the legislature does not intend to exceed its jurisdiction”, has laid down as follows:—
“Every statute is interpreted, so ??? its language permits, so as not to be inconsistent with the comity of nations or the established rules of international law, and the court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language. But if the statute is clear, it must be followed notwithstanding the conflict between municipal and international law which results”
13. Neither counsel has cited any authority on the subject. The learned counsel for the respondent has, however, relied upon the provisions of sub-section (4) of section 86 of the Code of Civil Procedure which provides that the provisions of section 86, namely, that no ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government in writing by a Secretary to that Government which may be given in a few exceptional circumstances with which we are not concerned, shall apply in relation to any Ambassador or envoy of a foreign State as well as to any High Commissioner of a Common wealth country. Clause (c) of the said subsection further provides that the protection shall apply to any such member of the staff or retinue of the Ambassador or envoy, as the Central Government may by general or special order specify in this behalf. No notification under section 86(4) of the Code of Civil Procedure issued by the Central Government has been brought to my notice. I, however do not find that the said provision of law is, incontistent with the well established customary International Law, subject only to certain exceptional circumstances when with consent of the Government even a foreign ruler or an Ambassador may be sued.
14. I have been informed that India has been a party to the Vienna Convention on Diplomatic Relations, 1961 and Articles 31 and 37 of the same lay down as follows:—
“31 A diplomatic agent shall enjoy immunity from the criminal jurisdiction of tne receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of.
37. (1) The members of the family of a diplomatic agent forming part of bis house hold shall, if tney are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.
15. Under the circumstances of the case, I am inclined to treat the aforesaid Articles of the Convention as part of the law of the land in the absence any of subsequent statutory provisions to the contrary and I hold that the wife of the envoy Mrs. M. Polak is immune from the process of the municipal Courts of the country aad the proceedings cannot be instituted against her. An argument had also been advancced before me to, the effect that in view of Bhagwat Singh v. State of Rajasthan . A.I.R 1964 S.C 444, the Tribunal below is not a Court and the proceedings before it are not a, suit as was held by the Supreme Court in respect of Industrial Tribunals. The facts of the said case are, however, entirely different, the Court itself observed in paragraph 10 that it was unnecessary to enter upon a discussion as to what immunities and privileges a foreign sovereign would be entitled to in the Republic of India Moreover, the Motor Accident Claims Tribunal is very much like a civil Court and the proceedings before it are a special method of enforcing and recovering the claim against the respondent and they are entirely different from Industrial Tribunals hearing references under the Industrial Disputes Act. I have, therefore, to reject the contention. This finding, however, does not conclude the question of legal liability of the diplomat and his wife and the extent to which the insurance Company may consequently be liable for the claim of the respondent in dispute raised before the Tribunal below, would be decided on the merits of the case, but no process of any kind would issue against Mr. or Mrs. M. Polak by the Tribunal below.
16. The learned counsel for the respondent lastly submitted that the Tribunal was not a civil Court and thererfore, the revision petition under section 115 of the Code of Civil Procedure were not competent. Without deciding this question in this case, I exercise my powers under Article 227 of the Constitution and set aside the impugned order of the Tribunal below and allow the petitions and hold that Mrs. M. Polak is immune from the process of the Tribunal below. There will be no order as to costs.
17. Petitions allowed.
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