Dua, J.
(1). The Premier Insurance Company Ltd., imp leaded as defendant No. 5 in the Court below in pursuance of a ntoice issued under Section 96(2) of the Mtoor Vehicles Act (hereinafter called the Act), has preferred this regular first appeal from the judgment and decree of a learned Subordinate Judge 1st Class, Delhi, dated 9-12-1957 granting to the four plaintiff-respondents a decree for Rs.20,000/- against defendants Nos. 1, 2 and 5. Out of the ttoal decretal amount, plaintiff No. 1. widow of the deceased Ajit Singh, was entitled to get Rs.5,000/-, plaintiffs Nos. 2 and 3, daughters of the deceased, Rs. 3,000/- each and plaintiff No. 4, minor son of the deceased, Rs.9,000/-. Defendant No. 1, Nichhattar Singh is the mtoor driver of the vehicle which was involved in the occurrence causing Ajit Singh's death and defendant No. 2, Nahar Singh, its owner, whereas defendant No.4, as already observed, is the Insurance Company.
(2) On 17-8-1954 at about 7-30 P.M., Ajit Singh, deceased was traveling in a mtoor cycle rickshaw, when near the Terminal Tax Post, Seelampur, the truck belonging to the defendant No.2 and driven by defendant No. 1 coming from the opposite direction collided with the aforesaid mtoor cycle rickshaw as a result of which deceased Ajit Singh sustained serious injuries. He was taken to the Irwin Hospital where he died on 18-8-1954 at about 1-45 A.M. Defendants Nos. 1 and 2 have nto preferred any appeal.
(3) A preliminary objection has been raised by Shri S.S. Chaddha on behalf of the respondents No.s 1 to 4 that the present appeal at the instance of the Insurance Company is incompetent. In support of his objection, he has relied on Section 96(2) of the Act and on the statement dated 18-4-1956 of the learned counsel for the Insurance Company, defendant No. 5 in the Court below, giving up all pleas except those admissible under Section 96(2) of the Act. Here, it may be recalled that originally the Insurance Company was nto imp leaded as a party but was included in the array of defendants at a later stage pursuant to ntoice under Section 96 of the Act. In reply to the written statement by the Insurance Company, the plaintiffs in their replication raised the objection based on Section 96(2) of the Act and it was in these circumstances that the above statement by the counsel for defendant No. 6 was made. It is nto disputed at the bar before us that neither in the Court below nor on appeal in this Court, the defendant No. 5 raised any plea covered by Section 96(2) of the Act.
Shri Chaddha has cited Sarupsingh v. Nilkant : AIR1953Bom109 , Itbar Singh v. P.S. Gill , Vanguard Fire and General Insurance Co. Ltd., v. Sarla Devi and on unreported Bench decision of this Court in New Zealand Insurance Co. Ltd. V. Kala Ram, R.F.A., 76-D of 1957, D/- 7-2-1967 (Delhi) in support of his preliminary objection. The decision of the Punjab High Court in Itbar Singh's case was considered on appeal by the Supreme Court in British India General Insurance Co. Ltd. V Captain Itbar Singh, : [1960]1SCR168 , and appeal against the same was dismissed.
(4) In reply to the preliminary objection, Shri Chet Ram Mittal, learned counsel for the appellant, has in his usual quiet manner drawn our attention to condition No. 2 of the Insurance policy in question which inter alia, entitles the insurance company to take over and conduct in the name of the insured the defense or settlement of any claim or to prosecute in his name for its own benefit any claim for indemnity or damages or toherwise and has full discretion in the conduct of any proceedings or in the settlement of any claim. The insured, according to this clause is obliged to give all such information and assistance as the Company may require. The learned counsel has taken his stand on this clause as against the limitation placed on the Insurance Company under Section 96(2) of the Act.
The learned counsel has in support of this submission sought assistance from the following observations of the Supreme Court in Itbar Singh's case :
'Again, we find the contention wholly unacceptable the Statute has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is nto for us to add to those grounds and thereforee to the statute for reasons of hardship. We are furthermore nto convinced that the statute causes any hardship. First the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defenses open to the assured can then be urged by him and there is no toher defense that he claims to be entitled to urge. He can thus avoid all hardship if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do.'
According to the learned counsel , these observations of the Supreme Court fully entitle the Insurance Company to adopt all defenses open to the injured party and defend the claimant's suit on those grounds. The learned counsel has in this connection also drawn our attention to a Bench decision of the Punjab High Court in Unique Mtoor and General Insurance Co. Ltd. V. Kartar Singh . In so far as his own statement dated 18-4-1956, is concerned, the counsel has submitted that a concession by an Advocate on a point of law does nto bind his client and the Court should nto pin down the client to his counsel's erroneous concession on a question of law. The statement giving up the toher pleas, says Shri Mittal, was apparently made under a misapprehension as to the correct legal position and this, according to him is, for all practical purposes, similar to the case of concessions erroneously made on questions of law. The counsel has sought support for getting out of the aforesaid statement from the matter of the Nawa-I-Waqat (Urdu) Lahore Air 1948 Lah 161 and Vedachala v. Rangaraju : [1960]39ITR308(Mad) .
(5) Shri Chaddha has attempted to meet the argument based on clause 9(2) of the Insurance Policy with the submission that this clause has to be expressly relied upon by the Insurance Company in its pleas and the Company can only seek its benefit by taking over in actual fact the defense of the suit in the name of the insured. If the Company does nto choose to do so, then this clause can be of no avail to it. In support of this submission, the counsel has referred us to the unreported Bench decision of this Court in the case of New Zealand Insurance Co. Ltd., R.F.A. No. 76-D of 1957 D/-7-2-1967 (Delhi). Our attention has been specifically drawn to the following passage in the unreported judgment:
'No consent has been obtained from respondent No. 2 for his being transposed as the appellant. Without deciding whether in the absence of such consent, the Company can ask for such transposition, we are of the opinion that the appellants have nto made out any case for being permitted to transpose respondent No. 2 as the appellant or to be permitted now to say that their appeal should be treated as an appeal by or in the name of respondent No. 2.'
(6) Clause (2) in the Insurance Policy, as we construe it, is meant for safeguarding the interests of the Insurance Company against any possible collusion of the prejudice of the Company between the injured party and the insured guilty party in so far as the liability as a result of the accident is concerned. We are thereforee, extremely doubtful if such a clause in an insurance policy must for its operation be construed so as to depend on the consent of the insured, for that may in conceivable cases defeat to an extent the very purpose of its inclusion in the policy. We are unable, as at present advised to persuade ourselves to hold that this clause has the effect of assignment or devolution of the interest of the insured to or on the insurance company so as to remove the insured from the picture altogether. The interest of the insured does nto appear to be eliminated or even affected but further interest seems to be created in the Insurance Company (the insurer) with a corresponding obligation on the insured to assist the Company for effectively safeguarding its interest consistently with its obligation created under the Insurance Policy.
But the insured and the insurer would seed to be entitled in their own right to remain on the record as necessary parties to the litigation, and the aforesaid enforceability of the insurer's right does nto depend on the sweet will, desire or whim of the insured. Whether or nto in a given case the Insurance Company has intended to take over and conduct the defense in the name of the insured would thus seem to depend on the facts and circumstances of each case and the matter calls for consideration from the point of view of substance and nto of mere form. In the present case, however, in view of our decision on the toher points, we do nto consider it necessary to express our considered opinion on this point.
(7) In so far as the statement of the learned counsel dated 18-4-1956 in the Court below is concerned the counsel quite clearly gave up all pleas which had been taken by the Insurance Company for it is conceded that no plea covered by Section 96 (2) was put forth in the written statement filed by the appellant. All the pleas raised were accordingly distinctly and categorically given up, with the result that it was essentially and basically a case of no pleas by the Insurance Company. Even in the grounds of appeal in this Court, no case has been sought to be made out to sustain the argument that the concession had been made under a misapprehension regarding the legal position.
Shri Chet Ram Mittal has very frankly and fairly submitted that he discovered the legal position to be clarified only on reading the Supreme Court judgment in the case of Itbar Singh which was published after the decisions of the Court below and indeed even after the filing of the present appeal. In our opinion, the statement, categorical as it is, must be held on the facts and circumstances of this case to be binding on the parties and little assistance can be drawn from the rule that an erroneous concession on a point of law by the counsel is nto binding on his client.
It appears that the Insurance Company did nto go to trial on any one of the pleas raised by it in the written statement and, thereforee, it would seem to be too late now to permit the counsel to go back on the clear unqualified statement giving up all defenses and to allow him to rely on and take over in the name of the insured the defenses put forth by the insured in the Court below. We are nto unmindful of the fact that there may nto be much prejudice caused to the plaintiffs by permitting the Insurance Company to take over the defenses urged by the Insured in the Court below, but even so, we are inclined to think that on the facts and circumstances of this case, it would nto be a sound and judicious exercise of discretion to permit the appellant at this late stage of arguments in this Court, without any prior ntoice to the opposite party , to go back on a clear and unequivocal statement made on 18-4-1956.
We have, however, also allowed the learned counsel for the appellant to take us through the evidence and point out if there is any infirmity in the judgment and decree of the Court below. Shri Chet Ram Mittal has submitted that there is no evidence of negligence on the part of the insured and for that purpose he has referred us to the evidence of Ramesh Chand P.W. 3. Our attention has been invited to the following statement of this witness:
'I had just started the return journey when I observed a mtoor cycle rickshaw coming from behind me which overtook me. Santosh Singh defendant present in Court was driving the cycle rickshaw in question. The rickshaw had four passengers. From Shahdara side a truck came at excessive speed with full head lights on. The mtoor cycle rickshaw was going on its correct side. The right side of the truck collided with the mtoor cycle rickshaw. As a result of the impact the mtoor cycle rickshaw was thrown over to some distance where it struck against a stationary truck. The truck which had caused the accident sped away from the spto.'
The statement of the toher witnesses, according to the learned Counsel is much to the same effect. It is submitted that from this testimony one cannto safely infer and come to the conclusion that the truck was on the wrong side. In our view, the submission is nto well-founded. When the mtoor cycle rickshaw was stated to be on its correct side and the right side of the truck coming from the opposite direction is stated to have collided with the mtoor cycle rickshaw then it is prima facie evidence of the truck driver having been negligent in driving his vehicle far too close to the mtoor cycle rickshaw. It is ntoeworthy that there is no reliable evidence showing that the truck was on its correct side. In the absence of any cogent Explanationn, this evidence, can very fairly and reasonably be held to found the conclusion of negligence on the part of the truck driver. The accident indeed speaks for itself.
It may also be pointed out here that on appeal the onus is on the appellant to show that the decision of the Court below is wrong and this onus cannto be discharged by merely showing that it is possible on the evidence to come to a conclusion in favor of either party. And then the Appellate Court does nto consider the decision of the trial Court on a question of fact based on appreciation of oral testimony from balanced niceties in calculation, but it must be convinced that there is reasonable margin of probability against the conclusion of the Court below being correct. This the appellant in the present case has failed to show.
(8) for the foregoing reasons, this appeal fails and is dismissed with costs.
(9) Before finally closing, however, we consider it proper to point out that in a case of this nature it would certainly have been more appropriate for the respondents to have raised the question of incompetence of the appeal soon after ntoice of the appeal was served on them, and certainly before the record was printed. This objection is almost similar to the objection of the appeal being barred by limitation. To lie by and wait till the parties have spent money on getting the record printed is neither just nor proper and the cause of justice buth from the point of view of the litigant and of the Court would have been better served if the point had been raised at the earliest possible stage. It is hoped that in future the practice suggested would be adopted, for toherwise, the question of depriving the successful objector of the costs may require serious consideration by the Court.
GK/VPP/G.G.M.
(10) Appeal dismissed.