P L D 1959 (W (PLP)

WAHIDUDDIN AHMED, J.‑This is an appeal from the order of Inamullah, J., dated the 11th of March, 1957 in Suit No. 416 of 1956 discharging the notice sent to the respondent company under section 96 (2) of the Motor Vehicles Act of 1939. The appellant filed a suit on the original side of this Court against respondent No. 2 for the recovery of Rs. 1,00,000 as damages for causing injuries to him by rash and negligent driving of Car No. K A A 3656 belonging to the American Ambassy, Karachi. This car is insured with Messrs Queensland Insurance Company Limited, Karachi, under an Insurance Policy bearing No. 123‑A/19593. The appellant contended that respondent No. 2 being the driver is insured under the said policy, that any decree passed in the suit can be executed directly against the Insurance Company and prayed that a notice be issued to them under section 96 (2) of the Motor Vehicles Act about the institution of the suit. Respondent No. 1 resisted this application on the ground that the respondent No. 2 is not an insured person and the question of issuing any notice to the Insurance Company does not at all arise. This plea was accepted by Inamullah, J., and the notice to the Insurance Company was withdrawn. The appellant has challenged the impugned order on the ground that the view taken by the learned Judge on the Original side of this Court is not in accordance with law and that the notice under section 96 (2) of the Motor Vehicles Act should not have been withdrawn. Mr. Fazeel, the learned counsel for respondent No. 1, has raised a preliminary objection that no appeal lies from' the' impugned order as it is not a judgment within clause (10) of the Letters Patent of the Lahore High Court applicable to the West Pakistan High Court. According to the learned counsel for respondent No. 1 a judgment contemplated under clause (10l of the Letters Patent of the Lahore High Court must be an order finally determining the rights of the parties and such rights cannot be considered to have been finally determined in a case where the proceedings are still pending. The learned counsel contended that the impugned order is an interlocutory nature. The dispute has not been finally determined, the suit is still pending and no appeal can lie at all from such an order. In support of his contention the learned counsel has relied on Ramasivamy Chettiar v. Roya Kanniappa Mudaliar and others (A I R 1930 Mad. 987) ; Beni Madho Rao and others v. Sri Ram Chandraji Maharaj (A I R 1937 Ali. 192) and Muntvarlalsingh v. Sm. Umadevi w/o Tilaksingh and another (A I R 1945 Nag. 156). The view expressed in these authorities is that a judgment in Letters Patent Appeal means not a judgment as defined in the Code of Civil Procedure but a judgment in its final definitive sense embodying a decree. A judgment which does not finally settle the right of the parties but is a ,further step towards obtaining a final adjudication is not a judgment from which an appeal is contemplated. It was there?fore contended that the order under consideration was merely of an interlocutary nature. No dispute between the parties has been finally settled. The learned counsel showed us number of decisions in which it was held that an order refusing to implead a party or to bring the legal representatives is not subject to appeal under Clause 10 of the Letters Patent. Mr. Rahimtoola, the learned counsel for the appellant, has invited our attention to Gokal Chand v. Sanwal Das (I L R 1 Lah. 348) and Firm Shah Hari Diyal & Sons, Madras through H. R. Bagdy v. Messrs Sohna Mal Bell Ram through Arjan Das (A I R 1942 Lah, 95), a Full Bench decision of the Lahore High Court. According to the view taken in these authorities the question whether an order amounted to a judgment within Clause 10 should be considered on the facts h and circumstances of each case. They further lay down that the word "Judgment" in Clause 10 does not mean a final Judgment The relevant portion of the observations of the learned Judges of the Full Bench case is as under :‑ " It is really unnecessary to say any more except that I would agree entirely with the remarks in 3 Lah. 188 that the best test propounded so far is the test laid down in 35 Mad.

1. It is not, however, necessary to decide whether that test is comprehensive so as to exclude all other tests. It is sufficient to say that each case must be considered on its own facts and circumstances and while the tests propounded in Madras and in the Calcutta High Courts serve as a good guide for this Court it is not necessary to hold that those tests are comprehen?sive and exclude other cases. I would therefore, answer the reference to the Full Bench by holding that the order in the present case is a Judgment and therefore appealable under Clause 10, Letters Patent." We are in respectful agreement with the view expressed in the Lahore case. In our opinion the contention of the learned counsel for the respondent that as the suit continued therefore no right or liability had been determined in the suit and no appeal lay, cannot be considered to be the only criterion of finding out whether the order is a judgment within the meaning of Clause 10, of the Letters Patent. One of the criterions can be whether the Court has decided any material issue between the parties finally affecting the subject‑matter of the suit. In cases where the order is passed on an independent proceeding ancillary to the suit, an appeal will lie if it renders the judgment effective when obtained between the parties. The impugned order not only fulfils all these conditions but also finally determines the liability of respondent No.

1. The effect of the order is that the appellant no longer can execute any decree that may be passed in the suit against him. An appeal from such an order will always lie. We therefore over‑rule this objection and proceed to consider the matter on merits. Mr. Rahimtoola, the learned counsel for the appellant has invited our attention to sections 94, 95 and 96 of the Motor Vehicles Act to show that it is obligatory on the owner of the car to get an insurance effected before using the car for third person's liabilities. Under section 94 (1) no person shall use a motor vehicle in a public place unless there is in force in relation to the use of the ‑vehicle a policy of insurance complying with the requirements of Chapter 8 of the Motor Vehicles Act. Under section 95 (1) (b), the policy of insurance must insure the person or classes of persons specified in the policy to the extent specified in subsection (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place. Under section 95 (5) notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover. Under section 96 (1) of the Motor Vehicles Act third parties can enforce the judgment in respect of any such liability obtained by them against any person insured by the policy against the insurer to the extent of the sum assured as if he were the judgment‑debtor together with costs and interest provided before or after the commencement of the proceedings in which the judgment is given, he had notice through the Court of the bringing of the proceedings. The appellant for this reason asked the Court to issue a notice to respondent No. 1 to fix him with the knowledge that proceedings against respondent No. 2 are pending for accident covered by them. This notice was withdrawn as the learned Judge on the Original Side was of the view that respondent No. 2 is not a person insured under the Policy of insurance by respondent No. The question, therefore, for consideration in this appeal is whether respondent No. 2 is one of those persons who are insured by the policy issued by respondent No.

1. It was conceded by Mr. Fazeel, the learned Advocate for the respondent, both before the learned Judge on the Original Side and in this appeal that the respondent No. 2, as driver of the car would be entitled to claim damages under para. 3 of the Insurance Certificate from the Insurance Company if the suit is decreed, but he disputed the contention that respondent No. 1 is the insured person under the said policy. According to the learned counsel for the respondents, under the terms of the Insurance Policy the person insured is the person by whom the policy of insurance has been effected. It appears to us that the question who is the insured person under' section 96 (1) cannot be decided on the terms of the Insurance Policy. It shall have to be decided on the language of section 96 (1) of the Motor Vehicles Act. A perusal of the language of section 96 (1) shows that the legislature has made a clear distinction between the person by whom the policy has been effected and the insured person. This distinction is apparent from the fact that at one place the framers of the ,Act have used the words " in favour of the person by whom a policy has been effected " and at another place " any person insured by the policy ". In our opinion if both the insured person and the person who has obtained the Insurance Policy were the same there was no need to mention them separately. The learned counsel for the respondent however urged that the term " Insured person " should be determined on the terms of the policy of insurance. This contention as already pointed out will render the provisions of the Motor Vehicles Act ineffective and meaning?less. What we have to see is whether respondent No. 2 is one of those persons who are entitled to the benefits of insurance and is one of those persons to whom respondent No. 1 under the policy have given a guarantee to indemnify in the event of accident arising out of the use of the Motor Vehicle. Clause 3 of the insurance policy is very clear on this matter. The Insurance Company has given the same assurance to the driver of the motor car as to the owner of the car. After careful consideration of the matter, it seems to us that no distinction can be drawn between the person insured and the persons in whose name the policy stands for interpreting the term "insured person" used in section 96(I) of the Motor Vehicles Act on the basis of the terms of the insurance policy. This section does not contemplate that a suit must be filed against the person who has obtained the insurance policy. It also applied to those cases where the suit is filed against the persons for whose benefit the policy has been obtained. In our opinion the view taken by Inamullah, J., cannot be upheld on the language of the relevant provisions of law. For these reasons the appeal is allowed with costs throughout. K.B.A./A.H.??????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.