TMI Blog1954 (7) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... hicles Act. The insurance company took out a chamber summons to be added as a party to the suit. That chamber summons was dismissed. It then took out a notice of motion to be allowed to defend the action in the name of the defendant. This notice of motion was also dismissed by Mr. Justice Coyajee, and it is against this decision that this appeal, is preferred. 2. Now, the position under Section 96, Motor Vehicles Act, is that a vicarious liability is cast upon the insurance company in respect of any decree that may be passed against the person in default and who has been insured with the insurance company. But before the plaintiff can become entitled to execute such a decree, it is obligatory that the insurer should have notice throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether an insurance company is entitled to defend the action on merits, not in its own name, not in its own right, but in the name of the defendant. Now, apart from authorities, we should have thought that it is a principle of elementary justice that a liability cannot be cast upon a party with out that party being given an opportunity to resist the claim which it has ultimately to satisfy. What we are told by Mr. Desai on behalf of the plaintiff is that, however elementary this notion of justice might be, the Motor Vehicles Act does not permit us to give effect to this well-established principle. Now, it is perfectly true that a Court should never avail itself of its inherent powers under Section 151 in order to do something which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent insurance policy does not contain any such term, it is not open to the insurance company to step into the shoes of the defendant. Now, we find it rather difficult to understand or appreciate this argument. If a contract between the parties can permit the Court to act in a manner not contemplated by the statute and to permit the insurance company to defend in the name of the defendant, why cannot the interests of justice equally permit the Court to allow the insurance company to defend in the name of the defendant? Surely the interests of justice should stand on a higher pedestal than the mere sanctity of a contract. As we shall presently point out, as far as the decision of this Court is concerned, it is clear that the view taken by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance company was not entitled to defend it in its own name and in its own right under. Section 96 (2). we have also pointed out at p. 110, 111 that the object of giving the notice to the Insurance company was obviously to enable it to defend the action through the defendant, but that no right had been given to the insurance company to defend the action in all cases in its own right or in its own name. 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 Section 96 (2). But the other purpose and object of the notice, which is equally important, is to give inti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im in the name of the insured; and the fact is emphasized in the judgment that by this condition the nominal defendant bound himself to allow strangers to this litigation, namely, the underwriters, to use his name. But we refuse to accede to the contention of Mr. Desai that the real ratio of this decision is the right given to the stranger under the contract to use the name of the defendant in the litigation and to defend the action in his name. It would be taking much too narrow a view of the powers of the Court to assume that the English, Court would have been helpless if such a provision in the contract was not to be found and if the Court had taken the view that in the interests of justice the insurance company should be allowed to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to defend in the name of the defendant. 6. Mr. Desai says that the defendant in this case has not been served and that he may choose to come at the date of the hearing and defend the action and by our order we may be prejudicing his rights as a defendant. Now, the order that we propose to pass will in no way prejudice the defendant. It would be open to the defendant to appear at the hearing. He is the defendant and he has every right to defend the action. The only right which the insurance company will get will be to defend in his name if he does not choose to defend, and, if he chooses to defend, to remain in Court at the hearing and to see that the defence is properly put forward. We must also protect the defendant as far as th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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