T.C. Das, J.
1. This appeal arises out of an award passed by the learned Member, Motor Accidents Claims Tribunal, 'the Tribunal' for short, in Motor Accident Claim Case No. 7 of 1973. The learned Tribunal, Now-gong, on the claim application of respondent No. 1 awarded a compensation of Rs. 20,000/-in total with a further direction that the appellant shall pay a sum of Rs. 5,000/- and the balance amount of Rs. 15,000/- would be paid by the insurance company, the respondent No. 2. Sterling General Insurance-Co. Ltd., Now gong, Assam was the insurer of the vehicle. The said insurance company has been renamed as 'the Oriental Insurance Company Limited'. The original claim stood at Rs. 50,000/- but the learned Tribunal after considering the facts and circumstances of the case and on scrutiny of the evidence found that a sum of Rs. 20,000/- would be 'just compensation' and accordingly awarded the same. The owner has preferred this appeal being aggrieved by the direction of the learned Tribunal for saddling the liabilities with him to pay a sum of Rs. 5,000/- out of the award amount. The fact giving rise to the claim of the respondent No. 1 may briefly be put herein below:
2. On 5-12-1972 the eldest son of the claimant who was a student of Class V and aged about 13 years met with an accident which was caused by public bus No. ASN 672 belonging to the appellant. The bus was coming, from north to south direction on the Rupahi Silghat P.W.D. road carrying: full passengers. The eldest son of the claimant-respondent No. 1 Abu Bakkar Siddique was standing by the eastern side of the road at Singimari. It was stated that the back door of the bus was open and it hit Abu Bakkar from behind causing severe head injuries. The boy was immediately removed to-Now gong Civil Hospital but he succumbed to his injuries on the next day. The doctor found three injuries which appeared to him to be major. According to the doctor there was a fracture on the humerus and it was narrated by the doctor as injury No. I. As per the opinion of the doctor injury Nos. 2 and 3 were sufficient to cause death apart from injury No. 1. However, non disputed the death of the boy due to the said accident The claimant (father of the boy) preferred the claim for payment of compensation before the Tribunal. The present appellant who was arrayed as opposite party No. I as well as respondent No. 2, insurance company, contested the claim by filing their separate written statements. There is no deniel that vehicle in question was insured and that the accident took place within the coverage period. The insurance company, respondent No. 2. submitted the written statement with limited grounds of contest. In paragraph 1 of the written statement the insurance company has stated that there was no cause of action for the claim against the insurance company. It was also denied in the written statement that there was any fault on the part of the vehicle in question resulting in the death of the boy. The present appellant, however, on various grounds contested the claim denying the liabilities for death. On the basis of the pleadings the learned Tribunal finally framed three issues as follows:
(1) Whether the claim is bad for non-joinder of necessary parties ?
(2) Whether the offending vehicle is liable for payment of compensation ?
(3) To what relief or reliefs, the parties are entitled under the law and equity ?
3. In support of the claim, the claimant examined as many as 5 wit-nesses including the claimant. None was examined on behalf of the opposite parties. On consideration of the evidence on record the learned Tribunal passed the impugned award which has been challenged in this appeal by the owner only on the point of distribution of the liabilities to pay the award amount. There is no other point raised in this appeal except the point as raised by Mr. B.P. Borah, learned Counsel for the appellant that since the insurance company is liable to pay the entire compensation to the limit as prescribed by the provisions of law and the amonnt being less than that limit, the insurance company is liable to pay the entire amount of award and the owner is in no way liable to pay the same as directed by the learned Tribunal. Admittedly, the limit as it stands now under the provisions of law is to the extent of Rs. 50,000/- in case of death and the liability to the extent of that limit is upon the insurance company to pay the award money to the claimant.That being the position, let me consider the case of the insurance company as advanced before me by Mr. S.N. Bhuyan, learned Counsel for the insurance company in view of the cross-objection filed in this appeal. Though the cross-objection has been filed on very many grounds by the insurance company, Mr. S.N. Bhuyan, learned Counsel for the insurance company has very fairly limited his grounds of attack on two points. Firstly, Mr. Bhuyan has submitted that the evidence of PW 5 is clear to the effect that the bus which was involved in the accident was overcrowded on the day of occurrence and hence there was a violation of the terms of the permit and as such the insurance company cannot be made liable for such violation caused by the owner of the vehicle. Let me examine the evidence of PW 5 on this point. It is seen in the evidence (cross-examination) that this PW 5 has stated-'I was sitting in the eastern side (i.e., left hand side) of the bus. I was coming in the lower class. Upper class was full of passengers. At the time of occurrence no motor vehicle passed through that road. Passengers were holding the open door. People raised alarm when the boy was knocked.' It has not been stated in the evidence as observed by the learned Tribunal that the bus was overcrowded. It was only loaded with full passengers. This is the solitary evidence in respect of the point raised by Mr. Bhuyan. It is very difficult to hold that the concerned bus violated any condition of the permit as it carried full passengers on the day of occurrence. Therefore, this submission as made by Mr. Bhuyan cannot stand. Moreover, there is no evidence to support this contention. The next submission of Mr. Bhuyan is that it is open for the insurance company to defend and/or to resist the claim on any other legal point which is not enumerated Under Section 96(2) of the Motor Vehicles Act. Referring to claim petition the learned Counsel has submitted that the proviso to Section 110-A was inserted by the amendment Act of 1969 of the Motor Vehicles Aet and it came into force with effect from 2-3-1970. The proviso to Section 110-A runs as follows:'Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.'
4. With reference to the claim application Mr. Bhuyan, learned Counsel for the insurance company has made his submission that the proviso to Section 110 A has not been complied with by the claimant and it being a legal defect in entertaining the claim application, the insurance company can take this legal plea in this appeal. Admittedly, this plea was not raised before the Tribunal nor there was any averment in the written statement to this effect. Consequently, no issue could be framed on this point. Therefore, no evidence could be led by the party in this regard.
5. Now let me examine the provisions of Section 96(2) and also the effect of the provisions of Section 110-C (2-A) of the Motor Vehicles Act. Section 96(2) has enumerated the right of defence or to resist the claim by the insurance company under the provisions of Sub-clauses (a) to (c). it does not give right to resist the claim by the insurance company save and except what are enumerated in those clauses. By virtue of these provisions it can be said that in an application filed Under Section 110-A of the Motor Vehicles Act, 1939 the insurer can defend the action only on the grounds mentioned in Section 96(2) of the Act, and as such, it cannot even cross-examine the witnesses of the claimant on merit. From the provisions of Subsections (1), (2) and (6) of Section 96 of the Act, if read together, it will be clear that the law does not recognise a general right to defend the action in favour of the insurer. The right to defend, which is given to the insurer, is only a limited right and it can defend the action on grounds specified in Sub-section (2) of Section 96 of the Act.
6. Mr. B P Borah, learned Counsel appearing on behalf of the appellant has submitted that this point is no longer res integra. As far back as in the year 1959 their Lordships of the Supreme Court in British India General Insurance Co. Ltd. v. Captain Itbar Singh 1958-65 ACJ 1 (SC), ruled that the right given to the insurer to defend the claim is a limited right as envisaged by the provisions of Section 6(2) of the Act and the right cannot be extended beyond that. Therefore, according to Mr Borah, learned Counsel for the appellant, the insurance company now cannot agitate on any of the grounds to contest the claim which was not taken before the learned Tribunal at the time of evidence. According to the learned Counsel for the appellant, as this has not been prescribed in any of the clauses as enumerated in Section 96(2) of the Act, the insurance company cannot urge this plea at all. Mr. Borah, learned Counsel for the appellant has also placed reliance on a decision of this Court in Bhagabat Kundu v. Debidutta Agarwalla, M. A. (F) No. 51 of 1975; decided on 22-11-1985. In the said case it was held 'The insurer may defend an action only on the limited grounds-mentioned in Section 96(2) of 'the Act'. The insurer can take up the defence that the policy has elapsed or the policy has been cancelled or that there has been a breach of specified conditions of the policy including the plea that the vehicle has been driven by a person not duly licensed or by any person who has been disqualified for holding or obtaining driving licence during the period of disqualification and that the policy was void.'
7. In reply to the above submission of the counsel for the appellant, Mr. Bhuyan, learned Counsel appearing on behalf of the insurance company has drawn my attention to the provisions of Section 110-C of the Act. It is submitted by Mr. Bhuyan that the decision in British India Gent. Ins. Co Ltd. v. Captain Itbar Singh 1958-65 ACJ 1 (SC), was prior to the amendment of the Act which was given effect to on and from 2-3-1970. It was only by the amendment, the provisions of Section 110-C (2-A) have been introduced. Referring to the amended provision of Sub-section (2-A) of Section 110-C, Mr. Bhuyan has submitted that the right to defend by the insurance company in a claim petition has been extended by these provisions. Provisions of Sub-section (2-A) of Section 110-C run 85 follows: '(2-A) Where, in the course of any inquiry, the Claims Tribunal is satisfied that-
(i) there is collusion between the person making the claim and the person against whom the claim is made, or
(ii) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer, who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so in pleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
8. On bare perusal of the above provisions it becomes clear that the Tribunal in course of enquiry must be satisfied that the claim petition was collusive in nature between the person making the claim and the person against whom the claim is made or the person against whom the claim is made failed to contest the claim. The Tribunal also will have to record the reasons in writing that it was satisfied that both or any of the conditions being present the insurer was to be impleaded as a party to the proceeding to enable the insurer to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. In general this provision is not attracted unless the conditions laid down in Sub-section (2-A) of Section 110-C are not present. Therefore, the limited or restricted right as enumerated in Sub-section (2) of Section 96 of the Act cannot be extended by invoking the provisions of Section 110-C (2-A) of the Act for the insurer to defend the case on all or on any of the grounds that are available to the person against whom the claim has been made. In the present case the owner has contested the claim by denying the liabilities. Therefore, the provisions of Section 110-C (2-A) to take any other ground besides what are enumerated in Sub-section (2) of Section 96 of the Act cannot be made available to insurer. Incidentally, this matter also came up for consideration before a Division Bench of Calcutta High Court in Kantilal & Bros. v. Rama-rani Debi 1980 ACJ 501 (Calcutta). Relying on a Division Bench decision of that court it was held in Kantilal's case (supra) that the appeal filed by the insurance company was not maintainable as because it contained no ground available to them Under Section 96(2) of the Act. The grounds that are available Under Section 96(2) of the Act may be urged only by the insurer in a claim. It was further held that according to law there is no doubt that the insurer would be responsible for the amount under the award unless there is ground to avoid the same as indicated in Sub-section (2) of Section 96(2) of the Act.
9. Mr. A.C. Bora, learned Counsel appearing on behalf of respondent No. 1 (the claimant), has replied to the contentions raised by Mr. S.N. Bhuyan, learned Counsel for the insurance company on the score that the grounds as urged in cross-objection are not at all available to the insurer either to resist the claim application or in this appeal.
10. I have considered the rival contentions of learned Counsels of the parties. I cannot agree to the contentions as raised by Mr. Bhuyan, learned Counsel for the insurer that the grounds as advanced herein are available to the insurance company by virtue of the provisions as laid down Under Section 110-C of the Act. No other point has been raised by Mr. Bhuyan. On perusal of the evidence on record I find that the compensation as awarded by the learned Tribunal is a 'just compensation'. The liability of the insurance company is to pay the entire compensation amount and having considered the amount as awarded in this case, the direction issued by the Tribunal to the owner to pay a sum of Rs. 5,000/- appears to be not proper. The award amount has not crossed the limit of the liability of the insurance company and as such the insurance company is liable to pay the entire compensation amount of Rs. 20,000/- as awarded by the learned Tribunal.
11. In the result appeal filed by the owner is allowed. The insurance company is alone liable to pay the entire compensation amount. Therefore, the cross-objection is rejected being merit less. The insurance company is also liable to pay the balance amount which was directed to be paid to the claimant.
12. It is submitted at the bar that the insurance company has already paid Rs. 15,000/-. If that be the position, only the remaining balance amount of Rs. 5,000/- shall be paid by the insurance company. The insurance company shall also pay interest at the rate of 6% per annum on the balance amount of Rs. 5,000/- which will accrue from today till payment is made. The insurance company shall pay a sum of Rs. 1,000/- as cost.