Code of Civil Procedure (Amendment) Act 22 of 2002 - An Anomaly

(By T.G. Rajagopalan, Advocate, Palghat)

The Amendment Act of 2002 has introduced several provisions which are conflicting with the provisions under the original Act. One such patent anomaly which was noticed recently relates to the procedure for attachment of property situated outside the jurisdiction of the court which passed the decree. The relevant provisions are S.46 and S.136.

S.136 relates to the procedure for effecting attachment of property outside the jurisdiction of the court not relating to execution of decrees. This is mainly intended for effecting attachment before judgment under O.XXXVIII, R.5. The court can issue an order of attachment and send it to the District Court within the jurisdiction of which the property is situated and that District Court effects attachment in the manner provided under S.136(2)(3) & (4). Once this is done this will be treated as an attachment in execution and the decree holder after obtaining the decree can get the decree transferred to the court within whose jurisdiction the property is situated and apply for the sale of the property in the manner provided under O.XXI.

S.46 is a similar provision by which the court which passed the decree may issue a precept to such court which would be competent to execute the decree by attaching the property. The procedure is prescribed under S.46(2) which is similar to S. 136 except for the difference that the precept need not be send through the District Court. The proviso to S.46 provides that the attachment will continue for 2 months or for such period as extended by the court so as to enable the decree holder to get the decree transferred to that court for proceeding further.

The circumstances under which the decree could be transferred is provided in S.39 sub-ss.(1), (2) and (3). The court is enabled to transfer the decree if the J.D. resides outside the jurisdiction of the court which pass the decree or the property is situated outside the jurisdiction of that court. Thus the power of the court to attach the property situated outside its jurisdiction and the procedure to be followed including the procedure for transfer of the decree are provided harmoniously in Ss.39, 46 and 136.

The Amendment Act of 2002 has introduced sub-s.(4) to S.39 which reads thus: "Nothing in this section shall be deemed to authorise the court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction". The purpose of this amendment is not clear. If the word "to execute such decree" is construed as an embargo even to entertain an application for attachment it will be directly in conflict with S.46. On the other hand applying the well known rule of construction which requires a construction which will avoid conflict between two provisions, this is construed as an embargo against proceeding further with execution including that of bringing the properties to sale, it is unnecessary since S.46 expressly provides for that. In that case sub-s.(4) will become otiose.

The Legislature should immediately step into to delete sub-s.(4) of S.39 and avoid difficulties in procedure. An authoritative decision from the Hon'ble High Court or Hon'ble Supreme Court is necessary on this point.

Judicial Review on Disability and Lawyers' Reasoning

(By P. Ratnavally, Advocate, Palghat)

"The origin of Goddess of Justice goes back to antiquity. She was referred to as Maat by the ancient Egyptians and was often carrying a sword with an ostrich feather in her hair (but no scales) to symbolize truth and justice. Classical representation of Themis did not show her blind folded (because of her talent for prophecy, she had no need to be blinded) nor was she holding a sword (because she represents common consent, not coercion). The term Magistrate is derived from Maat because she assisted Osris in the Judgment of the dead by weighing their hearts. But the Roman Goddess of Justice Justita was holding balancing scales and a sword and wearing a blindfold. Because it was impossible for justitia to pronounce judgment without fear".

1. Tooth is one of the numerous dental structures that develop in the jaws as part of the digestive system and are used to cut bite and grind food. Three functionally differentiated groups are distinguished; one of biting teeth and two of grinding consists of the incisors and canines. The incisors have a cutting edge on their crown; the canine teeth differ from them in having six on each jaw, three to the left and three to the right of the midline. The Group of masticating teeth consist of the eight premolars (four on each jaw) and 12 molars (six one each jaw). On both sides of each jaw there are two premolars next after the canine teeth; these are followed by three molars. The masticatory surface of these teeth is multicuspidate; the upper molars have four cusps, and the premolars two cusps each. Each tooth consists of a crown which projects above gum; two to four roots embedded in the alveolus; and a neck, which stretches between the crown and the root. Each tooth also contains a cavity filled with pulp, richly supplied with blood vessels and nerves that enter the cavity through a small aperture at the base of each root. The solid portion of the tooth consists of dentin, enamel and a thin layer of bone on the surface of the root. The dentin comprises the bulk of the tooth. The enamel covers the exposed portion of the crown. Two deciduous teeth appear at different periods of the life, the 20 deciduous teeth appear during infancy, the 32 permanent teeth during childhood and early adult hood.

2. When a tooth gets chipped or fractured the first consideration must be whether the pulp the vital living portion of the tooth has been damaged. If a structure is sensitive, painful or uncomfortable, it may be because the pulp is exposed. Ultimately, the condition of the puip and the amount of remaining tooth structure will determine the choice of treatment. Minor tooth fracture can be repaired by using sand paper. In the case of serious fracture root canal treatment is possible. But in vertical root fracture only extraction is the answer.

3. Mc Bride in his Book on Disability Evaluation supplied a formula to assess the disability in the case of loss of teeth. In the case of loss of all teeth replaceable with prosthesis the permanent disability as a whole furnished is 15%. So that; in the case of loss of one tooth the disability is .5% (1/2%). Of course loss of tooth is a disability, but it is mild and negligible in nature and that will not attract S.140 of the M.V. Act. It was held in 2000(1) KLT Page 516 to the effect that loss of teeth of the petitioner is not a permanent disablement attracts S.142 of the Motor Vehicles Act. If the tooth is used as weapon of offence to the human being as part of his anatomy as used by human beings in the olden days like animals or punitive man, the said loss can be considered as a member or joint. The American Association of Oral and Maxillofacial Surgeons 2002 defined the terms impairment, disability and handicap in a positive manner. Impairment means an alteration of an individual’s health status that is assessed by medical means loss or use of a body part, system of functions. Whereas disability means, an alteration of an individual's capacity to meet personal, social or occupational demands or to meet statutory or regulatory requirement. It assumes a medical impairment exists. For example: Impairment: Loss of finger. For a person who is a singer, this in fact would be impairment, but nota disability. For an individual who is a typist, this could represent significant disability in their work as a typist. The Federal Rehabilitation Act of 1973 and Disabilities Act of 1995 of India, identifies a handicapped individual as one who has an impairment and substantially limits one or more life activities including work, has a records of such impairment and this impairment can be overcome only by compensation ie., artificial limb etc.

4. In the Maxillofacial Surgeons Conference 2003 Papers were submitted. In the case of all teeth missing or not in functional occlusion could be assigned an impairment value of 5% of the dental system for molars and 3% of the dental system for incisors. If the whole person impairment value based on premature loss of teeth or teeth not in functional occlusions is less than that of total restriction to liquid diet, the greater value of a whole person impairment assigning 20-30% loss of whole person impairment based on a liquid diet should be used. In the case of Masticatory Dysfunction it is supplied that eating involves the function of the teeth, jaws, muscles of Mastication, muscles of deglutition and temporomandibular. In addition, it requires the ability of a person through lip, tongue and muscle function to be able to swallow food, loss or change in the functional relationship of any of these anatomic physiologic components of the system will result in a functional change for the individual.

5. Loss of teeth and/or dentoalveolar structure (underlying osseous or soft tissue structure) may be due to trauma, developmental condition, or associated disease eg. extraction indicated for radiation therapy. There is distinct and measurable variation between forces generated by natural dentition versus patients with prostheses (full removable denture). Maximum bite forces appear to be five to six times less for complete denture wearers. In addition many prosthetic patients select foods that require reduced masticatory capability. Patients may also develop adverse sequelae with tooth loss including speech difficulties and associated psychosocial problem secondary cosmetic change. The following recommendations are made for determining the impairment rating of the individual loss based on the contribution of each component to the masticatory system. However reconstruction with prosthesis after a loss of definition.

Patient restricted to                  40-60%irnpairmentofthewholepersoniffeeding

liquid foods                                tube is necessary

Loss of Dentition with                  5-9% impairment of whole person whole person

ability to wear dentures               if restricted to semi-solid and soft food (AMA Guide Ed5)

A person missing 30 teeth with prosthesis is not usually on a liquid diet. Therefore 0% 8% for loss of teeth-injury model.

6. Since the disability is scheduled, there is a doubt that is whether the 2000 (1) KLT P. 516 can be followed or not. In view of the new schedule of impairment released by American Association of Oral and Maxillofacial Surgeons 2002, the decision rendered in 2000 (1) KLT P.516 has to be reconsidered.

An Unqualified and Compulsive Certification Cast upon the Court

An Analysis on Section 53A of the Abkari (Amendment) Act, 2003

(By S.H. Panchapakesan, Judicial First Class Magistrate, Haripad)

The Abkari Act, 1077 (Act 1 of 1077) has been amended by the Abkari (Amendment) Act, 2003 (Act 1 of 2003)* (For short ** "the Act"). A new Section - S.53 A has been inserted in the Abkari Act by way of this amendment. S.53A provides for the disposal of seized liquor, intoxicating drugs or articles. Sub-s.(1) of S.53 A of the Act empowers the State Government to issue notification authorising the authorised officer referred to in S.67B of the Abkari Act to dispose of such nature of liquor, intoxicating drug or articles, as are notified (after its seizure) after following the procedure laid down in sub-s.(2) to (4) of S.53A of the Act.

As per sub-s.(2) of S.53 A of the Act, on seizure of any notified liquor, intoxicating drug or article, as the case may be, the authorised officer shall prepare an inventory of such liquor, intoxicating drug or article. Such an inventory shall contain such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of the liquor, intoxicating drug or article or the packing containers in which they are kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor; intoxicating drug or article in any proceeding under the Act.

The very same sub-section further provides that after preparing the inventory as stated above, the authorised officer has to make an application to any Magistrate having jurisdiction over the area where the seized liquor, intoxicating drug or articles are stored for the purpose of:

(a) certifying the correctness of the inventory so prepared; or

(b) taking in the presence of such Magistrate, photographs of such liquor, intoxicating drug or article and certifying such photographs as true; or

c) allowing to draw representative samples of such liquor, intoxicating drug or article in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

As per sub-s.(3) of S.53A of the Act, on receipt of an application made under sub-s.(2), the Magistrate shall, as soon as may be, visit the place where such liquor, intoxicating drug or articles are stored and take appropriate steps as specified in clauses (a), (b) and (c) of sub-s.(2), and allow the application. (The word 'or' appearing in clauses (a) to (c) of sub-s.(2) is seen replaced by the word 'and' in sub-s. (3))

A sagacious analysis of sub-s.(2) & (3) of S.53A of the Act would reveal that the provisions therein may lead to a situation, in which, the Court may be compelled to certify the correctness of a document (ie., the inventory to be prepared under sub-s.(2)) which contains a fact of which, the Court may not have any kind of knowledge.

As stated earlier, as per sub-s.(2) of S.53 A of the Act, on seizure of any notified liquor, intoxicating drug or article, the authorised officer shall prepare an inventory of such seized item. The said sub-section directs that among other aspects, such an inventory shall also contain the details regarding the quality of the seized item. Such an inventory is directed to be prepared with a view to identifying the liquor, intoxicating drug or article in any proceeding under the Abkari Act. So, even as per the said sub-section, quality of the seized item is material in any proceeding under the Act.

But S.53A of the Act does not prescribe any particular mode of analysis or examination, which would enable the authorised officer or the Magistrate to ascertain the quality of the item seized.

Quality is a distinctive feature. It denotes the standard of how good something is as measured against other similar things. So no one can make an assessment on the quality of the liquor or intoxicating drug or article seized with bare eye or any other sense organ.

Quality of the liquor, intoxicating drug or article, as the case may be, can be ascertained only through proper chemical analysis of the representative sample of the item seized. In the absence of such scientifically proved or approved mode of chemical examination, neither the authorised officer nor the Magistrate (who is bound to certify the correctness of the inventory to be prepared under sub-s.(2) of the Act) can have bona fide knowledge or belief on the quality of the liquor or intoxicating drug or article seized. Such a foresight may be humanly impossible.

As stated earlier, the inventory to be prepared under sub-s.(2) of S.53A of the Act is intended to identify the item seized in any proceeding under the Abkari Act. Moreover, sub-s.(5) of S.53A of the Act provides that notwithstanding anything contained in the Indian Evidence Act, 1872 (Central Act 1 of 1872) or the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), any Court trying an offence under the Abkari Act shall treat the inventory prepared under sub-s. (2) of S. 53 A as the primary evidence in respect of such offence.

So the inventory to be prepared under sub-s.(2) of S.53A of the Act is having prime evidentiary value, as it directs a new presumption under the Abkari Act, superseding all the legal requirements as provided in the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973.

Therefore, each and every content in the inventory shall be accurate and in tact in every respect. As the inventory is directed to contain particulars regarding the quality of the item seized proper mode of analysis or examination to ascertain the quality of the item seized prior to the preparation of the inventory ought to have been stipulated in sub-s.(2).

In the absence of such a provision, the inventory cannot be considered to be the one, which contains a truthful fact as to the quality of the item seized. In such circumstances, it may not have legal sanctity and may become difficult to be admitted in evidence. In other words, if such an inventory is accepted as the primary evidence in a proceeding under the Abkari Act (as provided under sub-s.(5) of S. 53A) it would be against the basic and settled principles of criminal jurisprudence. It would also amount to the violation of natural justice, equity, fairness and sound principles of law. Indeed, it would be fatal to the interest of the accused persons. Had it (sub-s.(2)) been drafted excluding the word 'quality', such a problem could have been avoided. As under clause (c) of sub-s.(2), representative sample of the item seized is taken, analysis report of such item could have been accepted in evidence, as it would scientifically reveal the quality of the item.

The inventory to be prepared under sub-s (2) is also directed to contain "other particulars" of the item seized. It also appears to be dubious and may lead to complications. The term -"other particulars" ought to have been made specific.

Another aspect which requires attention is with regard to the words- "any Magistrate", appearing in sub-s.(2). Sub-s.(2) empowers the authorised officer to make the application specified therein to any Magistrate having jurisdiction over the area where the seized liquor, intoxicating drug or articles are stored. Here, as the word "any" is used, it could be construed to mean both Executive and Judicial Magistrates. But the inventory under sub-s. (2) of S.53A is required to be prepared only after the detection of the offence. In such circumstances, the inventory has to be forwarded to a Magistrate who has the jurisdiction to try the case or admit the accused to bail. Therefore, the words "any Magistrate" appearing in sub-s.(2) ought to have been used as "the Magistrate", so as to mean a Judicial Magistrate.

Moreover, under sub-s.(4) of S.53A of the Act, disposal of the seized liquor, intoxicating drug or article is made applicable in pending cases also, (with the permission of the Court or Magistrate). But as stated earlier, as the inventory (to be certified under cl. (a) of sub-s. (2)) is directed to contain quality of the item seized, it may lack admissibility in evidence owing to the reasons mentioned supra.

The foregoing aspects would reveal that the certification of the inventory prepared under sub-s.(2) of S.53 A of the Act is an unqualified and compulsive one cast upon the Court. The above said aspects may pave the way for suitable amendment in the provision.

_______________________________________________________________________

*See 2003 (2) KLT Kerala Statutes 1-2.

**Published in the Kerala Gazette Extraordinary No. 385 dated 6.3.03.

An Analysis of 2003 (2) KLT 97 (SC)

(United India Insurance Co. Ltd. v. Lehru) & 2001 (2) ACJ 843 (SC)

(New India Assurance Co. Ltd. v. Kamala)

(By C.R. Kesavan, Advocate, Tirur)

1. The insurer is the appellant in the first case and took up a contention before the Tribunal that the driving licence of the driver is a fake one and the Company is not liable. The Company could not prove this contention either before the Tribunal or before the High Court. Since the Insurance Company could not prove its contention before both the Courts, the Supreme Court rightly dismissed the appeal on merits with a direction to pay cost of Rs.20,000/-. By this Judgment even though the learned Judges wanted to settle the legal position regarding the liability of insurer in case of dispute regarding validity of driving licence, with utmost respect to the learned Judges it is submitted that all aspects on this point are not elaborately considered and the legal principle is not correctly expounded resulting ultimately that certain observations in the concluding portion of the Judgment in Para 20 still leave the matter unsettled.

2. There is no doubt that Chaps.8 and 11 of the 1939 and 1988 M.V. Act respectively are benevolent provisions of law to the helpless and hapless victims of motor vehicle accidents and these provisions should be interpreted as far as possible in favour of the victims. But however laudable may be the intention and whatever may be the purpose to be achieved by enacting these provisions, the unambiguous expressed provisions contained in the Act cannot be interpreted only to saddle the liability on the shoulders of the insurer. The Insurer is given only very limited defence both under the 1939 as well as 1988 M.V. Act. The defence available to the insurer under the 1939 Act is under S.96(2) which is corresponding to S.149(2) of the 1988 Act. The learned Judges have also observed in Para 10 of the Judgment in the first case that S. 149 of the M.V. Act is identical in all material particulars to S.96 of the 1939 Act. Breach of certain very few conditions in the Policy of Insurance as stated in S.96(2)(b) of 1939 Act corresponding to S.149(2)(a) of the 1988 Act is a good defence to the insurer to avoid liability and they are 6 in number under both the statutes.

3. A motor vehicle driven by a person who is not duly licensed or by any person who has been disqualified in holding or obtaining a driving licence or if driven during the period of disqualification comes under the category of breach of a specified condition of the Policy under the provisions of S.96(2)(b)(ii) of 1939 Act and which is corresponding to S.149(2)(a)(ii) of the 1988 Act. These provisions under the 2 Acts, as observed by the learned Judges, are identical in all material particulars. Hence the earlier decisions rendered by the Honourable Supreme Court on this point under 1939 Act are relevant for consideration.

4. The word "breach" in S.96(2)(b) of the 1939 Act (corresponding to S.149(2)(a) of the 1988 Act) is explained in detail by the Supreme Court in Scandia's case (1987 ACJ 411 SC) and also in the decision reported in Sohanlal Pasi's case (1996 ACJ 1044 SC - 3 Judges). These two decisions are discussed at length in the case reported in 2003 (2) KLT 97 SC. In order to constitute a breach of the Policy, the breach should be wilful by the insured. To put it otherwise, the insured should voluntarily and knowingly has to commit breach of the 6 specified conditions of the Policy of Insurance which are enumerated in S.96(2)(b) of 1939 Act. (S.149(2)(a) of 1988 Act.)

5. In case where the insured knowingly and deliberately allowed a person not duly licensed to drive a motor vehicle there is wilful breach of a specified condition of the Policy as stated in S.92(2)(b) and the insurer can avoid liability. Once the Insurance Company establishes that the insured is guilty of such infringement by allowing a person not duly licensed to drive the vehicle, the Insurance Company is completely exonerated from the liability. In such cases the Insurance Company satisfying the award first and then recovering the amount from the insured does not arise at all by invoking the recovery provisions contained in S.96(3) of 1939 Act which is reproduced as S.149(4) under the new Act. This principle is approved in Scandia Insurance Co. 's case 1987 ACJ 411 in Para 14, Page 417 to the following effect: "and it is only in case of a breach or violation of the promise on the part of the insured that the insurer (by mistake it is printed 'insured') can hide under the umbrella of the exclusion clause" and this principle is approved by the learned Judges at Para 12 of 2003 (2) KLT 97 (SC). When the insurer can hide under the umbrella of an exclusion clause of wilful violation of promise on the part of the insured, the umbrella cannot be snatched away from the hands of the insurer by asking the insurer to pay the amount awarded and then to recover the same from the insured who is liable in law. In short in such cases the Insurance Company is to be completely exonerated and the Question of recovery or reimbursement does not arise at all. Kasiram Yadav's case (1989 ACJ 1078 (SC)) and United India v. Gianchand (1997 ACJ 1065 (SC)) are authorities on this point. In Kasiram Yadav's case (1989 ACJ 1078 SC) the insured, with the knowledge, entrusted the tractor to a person who does not hold a driving licence and caused the accident and hence there was a wilful breach of the specified condition of Policy and the Insurance Company is exonerated from all liability. In Gianchand's case (1997 ACJ 1065 (SC)) while dealing with the defence available to the Insurance Company in the exclusion clause in the Policy, under S.96(2)(b)(ii) of 1939 Act corresponding to S.149(2)(a)(ii) of 1988 Act, the principle laid down is that the insured is not permitted to hand over the vehicle for the purpose of driving by an unlicensed person and in that case the Insurance Company is not liable. It can be seen from the judgment in Gianchand's case that a line of argument was advanced to cast the liability on the Insurance Company based on the decision in Scandia Insurance Co. & Sohanlal Pasi's case and it is pertinent to note that the learned Judges at Para 10 at Page 1068 observed "that we fail to appreciate how the aforesaid decision can be of any avail to the learned counsel for the respondents/claimants on the peculiar facts of the present case". As discussed in Para 8 of that judgment there are 2 distinct lines of case. "The first line of cases consists of fact situations wherein the insured are alleged to have committed breach of the condition of Insurance Policy which required them not to permit the vehicle to be driven by an unlicensed driver. Such a breach is held to be a valid defence for the Insurance Company to get exonerated from meeting the claims of third parties who suffer on account of vehicular accident which may injure them personally or which may deprive them of their bread-winner on account of such accident caused by the insured vehicle". "The other line of case deals with the insured/owners of offending motor vehicles that cause such accidents wherein the insured/ owners of the vehicles do not themselves commit breach of any such condition and hand over the vehicles for driving to licensed drivers who on their own and without the permission, expressed or implied, of the insured hand over vehicles or act in such a way that the vehicles get available to unlicensed drivers for being driven by the latter and which get involved in vehicular accidents by the driving of such unlicensed drivers. In such cases the Insurance Company cannot get the benefit of the exclusion clause and remain liable to meet the claims of third parties for accidental injuries, whether fatal or otherwise". The decisions in The New India Assurance Co. Ltd. v. Mandar Madhav Thambai's (1996 ACJ 253 (SC)) & Kasiram Yadav v. Oriental Insurance Co. Ltd. (1989 ACJ 1078) case, and Gianchand's case (1997 ACJ 1065 (SC)) represent the first category of cases. The decision in Scandia Insurance Co. Ltd. v. Kokilaban Chandraban (1987 ACJ 411 (SC)) and Solumlal Pasi v. Seslia Reddy (1996 ACJ 1044 (SC)) represent the second category of cases. In all cases which fall under the 1st category the Insurance Company is to be exonerated from liability. The Supreme Court has settled this legal position in the Judgment in 1996 ACJ 253 (SC), 1989 ACJ 1078 (SC) and 1997 ACJ 1065 (SC).

6. It is true that the burden is on the Insurance Company to prove that the driver was not duly licensed and he was allowed by the insured to drive the vehicle without duly licensed. If this aspect is proved the Insurance Company is absolved and if not the Company is liable is the principle laid down in the decision reported in 1999 (1) ACJ 171 (SC), Rugmani v. New India Assurance Co. Ltd. The above principle is reiterated in Para 20 of the Judgment in 2003 (2) KLT 97 SC at Page 109 on the following lines: "If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had notice that the licence was fake and still permitted that person to drive". So far so good. But, unfortunately, the further observations, "More importantly even in such cases the Insurance Company would remain liable to innocent third party but it may be able to recover from the insured" and "this is the law which has been laid down in Scandia 's. Sohanlal Pasi's and Kamala's case," could have been, it is most respectfully submitted, avoided as it appears that the observations again unsettle the legal position stated in 1996 ACJ 253 SC, 1989 ACJ 1078 SC and 1997 ACJ 1065 SC though in Kamala's case it is held so. It is humbly and respectfully submitted that this is not the law which has been laid down in Scandia & Sohanlal Pasi's case. The observations in Para 20 run counter to the reasoning contained in the ruiings of Scandia & Sohanlal Pasi's case and also the observations contained in the concluding 2 sentences in Para 17 of the Judgment in 2003 (2) KLT 97 (SC). With due respect to the learned Judges who decided the cases (2003 (2) KLT 97 (SC) and 2001 (2) ACJ 843 (SC) it is submitted that the various aspects are not discussed at length and considered in its proper perspective and the principles laid down therein are, it is humbly submitted, erroneous due to the following reasons:

7. In the circumstances as discussed in 1989 ACJ 1078 - Kasiram Yadav's case and 1977 ACJ 1065 SC - Gianchand's case, if the insurer is completely exonerated under the provisions of 1939 M.V. Act why not the insurer be exonerated under similar circumstances as per the provisions of 1988 Act also is not seen discussed and considered in the above two captioned cases especially when S.96 of 1939 Act and S.149 of 1988 Act are identical in all material particulars as observed by the learned Judges in Para 10 of the judgment in the first captioned case and the principle laid down in Kasiram Yadav's case is approved as seen from Para 13 of the Judgment in 2003 (2) KLT SC 97. Hence the principle laid down that the Insurance Company cannot avoid liability even if there is wilful breach of the 6 specified conditions of the Policy as enumerated in S.149(2)(a) and the remedy of the Insurance Company is only to recover the amount under S. 149(4) is, it is humbly submitted, not correct.

8. The learned Judges in the first captioned case after observing that 'a plain reading of S.149 of the M.V. Act would show that the Insurance Company would continue to be liable to third parties' quoted the entire S.149 at Page 106 and 107 of the Judgment, S.149 of 1988 Act and S.96 of the old Act are similar excepting some minor insignificant changes not affecting the nature of liability of the insurer. On a reading of S.149( 1) of 1988 Act (96 (1) of 1939 Act) it can be seen that the nature of liability of the insurer is absolute and the liability is attracted the moment a Certificate of Insurance is issued irrespective of the question whether the insurer is entitled to cancel the Policy or cancelled the Policy. But this absolute nature of liability is subject to all the provisions of this Section (not under sub-s.(l) of S.149 alone) which means all the provisions contained in all the following sub-sections of S.149. On a reading of sub-s.(2) of S.149 (S.96(2) of 1939 Act) it can be seen that this sub-section acts as an exception to sub-s.149(1),

9. Even in cases where the insurer has got the statutory defence of wilful breach of six specified condition of the Policy as enumerated in S.149(2)(a) of the 1988 Act with regard to the accident after the enactment of 1988 Act, certain Honourable High Courts including the Honourable High Court of Kerala and our Honourable Supreme Court in the captioned cases are of the view that the insurer cannot avoid liability and has to pay the amount first and then to recover the amount from the insured as per the provisions contained in S.149(4) of 1988 Act. It may be noted that on a careful, patient and analytical reading of the entire sub-section in comparison with the old provisions (S.96(3)). it can be seen that S. 149(4) is not at all a new provision first time enacted in the 1988 Act. It was already there when the 1939 Act was enacted in the form of S.96(3) and the Honourable Supreme Court, while dealing with similar questions under the 1939 Act did not direct the insurer to pay first and then to recover the amount as per the provisions under S.96(3) of 1939 Act since S.96(3) corresponding to S.149(4) was not at all applicable in cases of breach of specified six conditions of the Policy as enumerated in S.96(2)(b) (S.149(2)(a)). But it applies to breach of other conditions of the Policy other than the six specified conditions. The meaning of sub-s.149(4) is that when a Certificate of Insurance is superseded by a Policy of Insurance, if the insurer imposes any conditions in the Policy of Insurance other than the 6 specified conditions as enumerated in S.149(2) (S.96(2)) in order to restrict the Insurance, those restrictive conditions in the Policy are ineffective and cannot come to the rescue of the insurer to avoid liability as regards third parties and the remedy of the insurer in such cases is to pay first the amount as awarded to the third party and then to proceed against the insured to recover the amount from the insured. Sub-s.149(4) has nothing to do with the breach of any specified 6 conditions of the Policy of Insurance as enumerated in S.149(2). In short, when there is breach of a Policy conditions other than the six specified conditions of the Policy, the insurer has to pay first the amount to 3rd party and then to recover from the Insured, and S.149(4) cannot be invoked in the case of breach of specified six conditions of the Policy as enumerated in S.149(2) (S.96(2)(b)).

10. Under the 1939 Act the insurer can avoid liability on 3 grounds, (i.e., Ss.96(2)(a), (b) and (c)) whereas under S. 149(2) of 1988 Act the insurer can avoid liability on 2 grounds (i.e., Ss.149(2)(a) and (b)). The first ground of defence to avoid liability to the insurer under the 1939 Act under S.96(2)(a) is cancellation of Policy under certain circumstances and this ground is taken away when 1988 Act is enacted and the remaining 2 grounds under the old Act as Cls.(b) and (c) are retained in the new Act as Cls.(a) and (b). Among the 2 remaining grounds, the first ground is a breach of six specified conditions of policy (Ss.96(2)(b) and 149(2)(a)) and the other ground is nothing to do with breach of any condition of Policy whatsoever but a distinct ground under a different situation when a policy is obtained by fraud. (Ss.96(2)(c) and 149(2)(b)). The alphabetical changes as 2(a) and 2(b) in S.149 instead of 2(b) and 2(c) as under S.96 are necessitated because there were 3 grounds under the old Act as a. b and c and whereas only 2 grounds under the new Act as a and b as pointed out above. This must always be remembered to understand the scope of the remaining sub-sections.

11. The Legislature while reproducing S.96(3) as S.49(4) copied down the very same provisions as it is. In both Ss.96(3) and 149(4) reference to Cl.(b) of sub-s.2 can be seen. The Cl.(b) of sub-s.2 referred in S.96(3) pertains to wilful breach of the six specified condition of the Policy of Insurance as enumerated in S.96(2) whereas sthe reference in Cl.(b) of sub-s.(2) in S.149(4) does not pertain to any breach of any conditions whatsoever in the Policy of Insurance. But it is a totally distinct ground when the insurer can avoid liability when the Policy is obtained by fraud. The purpose of enactment of S.96(3) and S.149(4) is that the insurer cannot take shelter under breach of any of the conditions of the Policy except the six specified conditions enumerated under S.96(2)(b) which is corresponding to S.149(2)(a). But unfortunately the Legislature while simply copying down the very same provisions of S.96(3) as S.149(4) omitted to correct the alphabet (b) as (a) while making a reference of the clause forgetting the fact that the first ground of defence under the old Act as 96(2)(a) is deleted under the new Act and S.149(2)(b) does not pertain to breach of any of the Policy conditions whatsoever.

12. Fraud vitiates every thing. Any contract obtained by fraud is void especially a contract of insurance which is based on the principle of ubberrimae fide (utmost good faith). This need not find recognition or expression in the M.V. Act. Even in the absence of any express provision to this effect the insurer can avoid liability on the ground of fraud under the General Law of Contract. Mentioning that the Insurer can avoid liability on the ground of fraud in S.96(2)(c) corresponding to S.149(2)(b) is superfluous. Even in the absence of S.149(2)(b) the insurer can avoid liability on the ground of fraud and there need not be an enabling provision in the M.V. Act to avoid liability for the insurer. Hence if S. 149(4) should carry the proper meaning as S.96(3), the reference in Cl.(b) of sub-s.(2) in S.149(4) is necessarily to be read as CI.(a) of sub-s.(2) and then only it will be in consonance with Ss.l49(2) and 149(7) of the 1988 Act and if not it will lead to strange results and it will be a manifest contradiction of the provisions contained in Ss.149(2) and 149(7) because the Legislature never intended to take away the statutory defence given to the insurer under S. 149(2) by enacting a sub-section in the form of 149(4). "To be literal or to be blinkered by some rigid cannon or restriction may be to miss the life of law itself" as opined by our Honourable Supreme Court in 1977(1)SCC 155. "In order to know what is the provision contained in a particular provision of law one has to know what it has been and what it tends to become. We are interested with law as it is. If this leads to unjust results it is a matter for Parliament and not for us" is not the stand expected from a Judge while giving a correct legal effect to a particular portion of a statute. Hence the reference in Cl.(b) of sub-s.(2) of S.149(4) is necessarily to be read as CI.(a).

13. It is seen from the Judgment in the above two captioned cases that the Honourable Judges are of the view that a plain reading of S.149 as a whole would show that the Insurance Company would continue to be liable to third parties in spite of breach of the 6 specified conditions of the Policy as enumerated under S. 149(2) and the remedy is to recover the amount from the insured. In both the judgments vide Paras.17 and 20 respectively much importance to S. 149(5) is seen given especially in Kamala's case to further strengthen the above reasoning. Chap.8 of the M.V. Act, 1939 regarding compulsory Insurance came into force only from 1.7.1946 though it is not applied then through out the country and it is applied to the State of Kerala only from 16.4.1973. The concept of limited liability of insurer contained under the various provisions of 1939 Act is deleted while enacting 1988 Act. On a plain reading of Ss. 149(4) and (5) one can understand that S. 149(4) deals with the question of liability itself of the insurer and not the quantum of liability whereas S. 149(5) deals with the quantum of liability (Liability otherwise admitted). Insurer is not supposed to issue a Policy without satisfying the requirements contained in Chaps.8 and 11 of the M.V. Act 1939 and 1988 respectively. The meaning of S. 149(5) is that suppose the insurer issues a Policy without satisfying the requirements of the Act for a lesser extent of liability, the insurer has to pay the amount as per the statutory requirement and the excess amount so paid can be recovered from the insured. After the enforcement of the provisions of Compulsory Insurance and especially after the deletion of the concept of limited liability of the insurer under the 1988 Act. S. 149(5") (S.96C4)) is now a dead sub-section and absolutely there is no importance and the Legislature ought to have scrapped S. 149(5) and ought not to have retained since it is otiose and no insurer can now enforce legally the provisions of S. 149(5). It is humbly submitted that it is unfortunate to note that this significant aspect was lost sight of by the learned Honourable Judges who decided the above two cases while giving undue importance to this sub-section.

14. It is seen from Para 17 of the Judgment in 2003 (2) KLT 97 that a submission was made on the side of the appellant insurer that S. 149(7) has not been noticed in Kamala's case. But the Honourable Judges are of the view that there is no substance in the submission. But as matter of fact, it is respectfully submitted that S. 149(7) was not taken into consideration in its proper perspective. S. 149(7) again reiterates that the insurer is entitled to avoid liability in the manner as provided for in sub-s.2 of S.149 which deals with breach of 6 specified conditions of the Policy as enumerated in S. 149(2) and thereby S.149(7) again safeguards the statutory defence of the insurer to avoid liability completely. Though it is true that S.149(7) is not giving any additional right to the Insurance Companies but it emphasizes that the Insurance Company can avoid liability on the limited grounds set out in sub-s.2 as observed by the learned Judges in the concluding portion of Para 17 of the Judgment in 2003 (2) KLT 97. On the face of the above reasoning the observations of the learned Judges that even on the limited grounds of defence set out in sub-s.(2) of S. 149 of 1988 Act the insurer cannot avoid liability, it is most respectfully submitted, runs counter to the above reasoning and is against the expressed provisions of the Act. It also appears that the case decided by the learned 3 Judges of the Honourable Supreme Court in New India Assurance Co. Ltd. v. Asharani in 2003 (1) KLT 165 (SC) reiterating the principle that the statutory defences available to the insurer under S. 149(2) cannot be obliterated (Vide Para 30 of the Judgment) is not brought to the attention of the learned 2 Judges who decided the case reported in 2003 (2) KLT 97. Hence one can hope that sooner our Honourable Supreme Court will settle the position by upholding the principle that the insurer can always take shelter under the umbrella of statutory defence as enumerated in S. 149(2) by reiterating the principles laid down in Kasiram Yadav's case (1989 ACJ 1078 SC) and Gianchand's case (1997 ACJ 1065 SC) and the umbrella cannot be snatched away from the hands of the insurer till the Act is amended casting a blanket liability on the insurer irrespective of any question once a Certificate of Insurance is issued.

Should "Kith and Kin" Be Curbed?

(By Pauly Mathew Muricken, Advocate, High Court of Kerala, Ernakulam)

The Bar Council of India's novel venture to breathe fresh air into the controversial 'Theory of Relativity' by publishing the State-wise list of HC Judges whose relatives are practising in the same courts, has invited keen and live discussions and deliberations among the legal and juristic circles. While the aim of BCI appears to be laudable, the purity of its action when judged vis-a-vis the stage at which it is pressed into service have aroused sentiments of doubt and suspicion in the minds of independently thinking people and the legal intelligentia. The object of the BCI seems to be to strengthen the public faith in the judicial process.

According to the list published by BCI, Delhi High Court tops with 16 Judges with lawyer relatives. It is followed by Madras with 8 Judges having lawyer relatives practising there. In Kerala, Patna and Rajasthan High Courts, there are 7 Judges each with lawyer relatives practising in the concerned High Court. In each of these 3 States, number of practising lawyer relatives are 10. Can the Judges or the lawyer relatives be blamed for this or is the Bar Council responsible for the emergence of such a situation. The larger legal issue involved herein boils down to the question 'Is there any breach of etiquette or impropriety in a lawyer relative practising in the same Court'.

In India, every citizen has the constitutional right under Art.19(1)(g) to choose his profession or calling subject only to the limits as may be imposed by the State in the interests of the public welfare and the other grounds mentioned in cl.(6) of Art.19 of the Constitution of India. Constitution guarantees this right to every citizen, as a member of a civilised society. It only recognises reasonable restrictions on this right, and a restriction is reasonable only if it has a utilitarian design to secure the greatest good of the greatest number.

The law relating to legal practitioners in India is governed by the Advocates Act, 1961, a central legislation. The Act authorises the Bar Council of India to make rules prescribing the standards of professional conduct and etiquette to be observed by Advocates. The Act inter-alia prescribes the qualifications as well as disqualifications for admission as Advocates. The qualifications for enrolment is dealt with under S. 24 and the disqualification for enrolment is specified in S.24A of the Act. The only disqualification prescribed is that a person shall not be enrolled as an Advocate on a State roll if he is convicted of an offence involving moral turpitude or convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955. The theory ofrelativity does not find a place in S.28A of the Advocates Act, 1961 for the purpose of admission as an Advocate. Every person admitted as an Advocate on a State roll has the right to practice throughout the territories to which the Act applies in all Courts including the Supreme Court, before Tribunals and other legal forums, unless their appearance is expressly forbidden by a separate legislation. This right is recognised in S. 30 of the Act. The same Act empowers the High Court under S. 34(1) to make rules laying down the conditions subject to which an Advocate shall be permitted to practice in that Court and the Courts subordinate thereto. In the exercise of the above power, the High Court of Kerala has framed rules in 1969 regarding conditions of practice of Advocates in the High Court and in the Courts subordinate thereto. These rules have been published in Kerala Gazette No.37 dated 23.9.1969. Nowhere in the rules restriction has been placed on lawyer relatives practising in the same court or in any Court subordinate thereto.

The norms regulating the practice of lawyer relatives is contained in Chapter II, Part VI, R.6 of the BCI Rules. It reads "An advocate shall not enter appearance, act, plead or practice in any way before a Court, tribunal or authority mentioned in S. 30 of the Advocates Act, if the Court or any member thereof is related to an Advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law".

The above rule is self-speaking and on a consideration of the rule, it can be seen that what the rule seeks to achieve is to prevent kith and kin, from appearing in the Court or forum presided over by his/her judge relative. The rule does not prevent in any way a lawyer relative from appearing and pleading in a different bench of the same Court or forum or in the Courts or forums subordinate thereto. That being so, it is unrealistic to curb the practice of Lawyer relatives in the other Benches of the Court or forum or in the Courts or forums subordinate thereto.

The propriety of a Lawyer relative appealing before a Judge relative was always a debatable issue and the issue has arisen for consideration on occasions prior to the coming into force of the BCI Rules. The issue was directly a lis to be decided by the Full Bench of the High Court of Travancore In Re-An Advocate (1120 (1) TLT, Vol. XIX Page 1). The issue arose out of a reference made by Madhavan Pillay, J., (as he then was) involving serious questions of procedure on a question as to whether it was proper for Mr. T.S. Krishnamurthy Iyer, Advocate, to accept Vakkalath for pleading in a matter which came up before his father, Mr. Justice Sankarasubba Iyer, having due regard to the rules and practice contained in Rr.453 & 489 of the Civil Courts' Guide. After due consideration of the entire issue, the Full Bench (Per T.M. Krishnasvvami Aiyar, C.J., G.D. Nokes & K.C. Abraham, JJ.) unanimously held that there is no definite rule of law or procedure under which an Advocate is prohibited from appearing before a Judge of the High Court, who happens to be his relation. But it has been the invariable practice in the High Court never to post any matter before a Judge or a Bench including a Judge, who was closely related to an Advocate appearing for one of the parties. The Full Bench further held that R. 453 of the Civil Courts Guide was intended only for the guidance of subordinate Courts. The issue which remained settled vide the above decision has now become unsettled in view of the recent attempt made by the Bar Council of India.

In England, a barrister is not permitted to practise habitually in a County Court or the Crown Court where his father or near relative sits as a Judge but there is no objection to his practising in a Court where his father is one of several Judges and it has never been considered improper for a Barrister to appear before his father in the High Court, Court of Appeal or House of Laws. (Halsbury's Law of England, 4th Ed., para.1145). It is recognized as a rule of the profession. Several well acclaimed Judges in England did have opportunity to practice in the higher courts before their father who happened to be the Judges of the said Court. The list is rather exhaustive and it includes Lords Russel of Killowen, Thankerton, Romer, Finlay, Charles, Macnaghlen, Lawrence, Bucknill and Henn Collins. The same is the practice in the United States as well. The above practice was being followed on the reasoning that if a lawyer relative appears before a Court where his father is one of several Judges, it is impossible to know beforehand which Judge will in fact try a case.

The legitimacy of law depends upon the consent of the. parties in dispute. No doubt, Courts must be above any form of control or influence. The traditional conceptions of Judge and Court is well expressed by an illustrious American Lawyer Henry Lummis: 'The moment, a decision is controlled or affected by any form of external influence or pressure, that moment the Judge ceases to exist'. Therefore, as pointed out by the Apex Court in Satendra Narain Singh v. Ram Nath Singh, AIR 1984 SC 1755 at P. 1757, it is better and appropriate that the Advocate son withdraws from the case than the Judge father.

Legal Profession, more or less, is inherited by succession. Judges holding the judicial mantle are lawyer-turned Judges. A Judge may in fact desire to have his son or daughter or in laws to follow the noble legal profession or the son or the daughter or the in-laws may develop an interest in themselves to follow the same profession, as it is quite natural in most of the cases. Can the Judges or lawyer relatives be blamed for it. There is yet another face for this delicate issue. Lawyer relatives might have entered the profession or longed to enter even before their close ones are elevated as Judges. Is it not paradoxical to curb their practice for no fault of theirs, or to punish the Judges in the form of transfer for the reason that their relatives are practising in the same Court, not before their relative Judges, but before other benches of Judges who do not have their lawyer relatives practising and who even dislike lawyer relatives practising in the same Court at all. What is the comparative gain in restricting their practice in the subordinate courts and forums when the subordinate Courts and Tribunals come under the direct administrative control and supervision of the High Court. If the likelihood of bias is the reason for the apprehension, are there not remedies available to the party concerned who feels that bias have kept in, before the same Court and before the higher Court. The BCI instead of attempting to trace out the list of lawyer relatives and related Judges must leave the Theory of Relativity to the fair conscience of the lawyer relatives or else must adopt a pragmatic approach which does not involve in chasing the lawyer relatives of the related Judges, but regulating the practice of lawyer relatives in such a matter that it does not shatter the confidence of the people in the impartiality of Judges.