P L D 1957 (W (PLP)

INAMULLAH, J.

This is an application under sub clause (2) of section .96 of the Motor Vehicles Act (IV of 1939), and arises under the following circumstances: A suit for damages amounting to about a lakh of rupees has been filed against a driver alone. The American Embassy F. O. A. has not been made a party, obviously because they are a Foreign Embassy. Sub-clause (1) of section 96 of the Motor Vehicles Act, 1939 contemplates that if judgment is obtained against any person insured by the policy, then notwithstanding that the insured may be entitled to avoid or cancel the policy, the insurer shall pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder as if the Insurance Company was the judgment debtor. In order, however, that the Insurance Company may be made liable for payment of the amount that the Court may pass against the insured person, a notice of the proceeding in Court must be sent to the Insurance Company through the Court. The contention of Mr. Fazeel, the learned Advocate for the Insurance Company, to whom a notice has been sent through the Court about the present proceeding, is that the notice is bad in law, as it is not contemplated under sub clause (2) of section 96 of the Motor Vehicles Act, 1939. His contention is that sub-clauses (1) and (2) of section 96 read together make it clear that the question of notice to the Insurance Company arises only when the person insured is made a party. On the other hand, Mr. Rahimtoola, the learned Advocate for the plaintiff very strenuously contended that the driver is also a person who can be said to be a person insured within the meaning of section 96 of the Act. He relied on para. 3 of the Insurance Certificate, the relevant portion of which reads as under :- "In terms of and subject to the limitations of the indemnity which is granted by this section to the Insured the Company will indemnify any driver who is driving the Motor. Car on the Insured's order . . . . . ." I have given my careful consideration to the contention raised by Mr. Rahimtoola, and I have come to the conclusion that a distinction has to be drawn between the. person insured, and the person in whose name the policy stands. There is no doubt that, under the circumstances of the present case, as Mr. Rahimtoola could not implead the Foreign Embassy as the defendant, difficulty is likely to arise for his client. The Court, however, cannot over come the difficulty that may arise because of the legislation having not provided for such cases as the present one. The Court has' only to interpret the law and read the intention of the legis lators from the language used by them. I have perused section 96, sub-clauses (1) and (2), and have no doubt in my mind that these clauses contemplate a suit having been filed against the person insured, and only then the question off notice to the Insurance Company under sub-clause (2) of section 96 of the Act would be competent. Mr. Fazeel, however conceded that the driver would be entitled to claim indemnity under para. 3 of the Insurance Certificate from the Insurance Company if the suit is decreed. For the reasons given above, I withdraw the notice sent to the insurance Company. A. H. Notice withdrawn.