An Insurance Company can raise all the defences that are open to the insured, despite the limitations specified in Section 96(2) of the Motor Vehicles Act, if the insurance policy contains a clause reserving such right.

KALASAM, J. :- This appeal is filed by the Madras Motor and General Insurance Co. Ltd., against the order of the Motor Accidents Claims Tribunal, Madras, awarding a sum of Rs. 33,120, being the compensation-payable to the respondents due to the death of the husband of the first respondent and father of respondents 2 to 4.

2. The first respondent herein is the widow and respondents 2 to 4 are the minor children of the deceased Anandan, a railway-employee, who died in a traffic accident on 11-10-1968 at about 10-20 p.m. when he was knocked down and run over by a lorry MYD 2511 belonging to the first respondent before the Claims Tribunal. The owner of the vehicle entered appearance through advocates, but filed no counter. The counsel also did not appear at the trial stage to conduct the defence on behalf of the first respondent. The Insurance Company, the appellant herein, filed a counter raising the plea that the accident was solely due to the negligence on the part of the deceased and that it was not due to any rash or negligent driving of the lorry by its driver. Before the Tribunal P.Ws. 2 and 5 were examined as witnesses to the occurrence. According to P.W. 2, when she was proceeding along Basin Bridge road at about 10 p.m. a lorry came following her at a high speed, that it knocked her down and swerved to the left and knocked down the deceased find came to a stop after hitting the parapet wall of the bridge and that the deceased died on the spot and the driver of the lorry jumped down and ran away. P.W. 5 said that on the date of the occurrence he engaged the lorry to take his belongings to Perambur, that one Ranganathan the driver of the first respondents before the Tribunal was driving it, that he sat by his side that when it was proceeding along Basin Bridge it knocked against the parapet wall of the bridge and himself and the driver jumped down and ran away. P.W. 6, Deputy Superintendent of Police, who was at that time Inspector of Police. Traffic and Investigation, investigated the accident and drew a plan. On the evidence of P.Ws. 2 and 5, the Claims Tribunal came to the conclusion that the driver of the lorry was rash and negligent in driving the lorry which resulted in death of the deceased. So far as this finding is concerned, on merits, there cannot be any dispute.

3. On behalf of the respondents, an objection was taken to the maintainability of the appeal by the Insurance Company. It was contended that the Insurance Company has got only a limited right to defend under Section 96(2) of the Motor Vehicles Act and that it bus no right to question the quantum of compensation awarded or as to the fact whether there was any rashness or negligence on the part of the driver. In support of this contention, Mr. Chinnasami, learned counsel for the respondents referred to Section 96(2) of the Motor Vehicles Act, and submitted that the only defences that are open to the Insurance Company are those that are enumerated under Section 96(2)(a) to (c). Sub-Section (2) of S. 96 is as follows -

"No sum shall be payable by an insurer under Sub-Section (1) in respect of any judgement unless before or after the commencement of the proceedings in which the judgement is given the insurer had notice through the Court of the bringing, of the proceedings, or in respect of any judgement so long as execution is stayed thereon pending an appeal and an Insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds enumerated in clauses (a) to (c)." The sub-section therefore enables the Insurance Company to have notice either before judgement or after judgement to raise the defences that are made available in clauses (a) to (c). The sub-section is clear that the Insurance Company shall be entitled to defend only on any one of the grounds mentioned. In construing the scope of Section 96 (2) it was held by the Supreme Court in B.