Mandani v. Suchale Civ. Case 12-M-67; 6/11/70; El-Kindy Ag. J.

Mandani  v. Suchale  Civ. Case 12-M-67; 6/11/70; El-Kindy Ag. J.

            This was an application for issue of Third Party notice on New India Assurance Co. The defendant was sued for negligence, as a result of a contract, he drove a car with the plaintiff as passenger therein, and that due to his negligent driving, the car collided with a tree offside the road, overturned and plaintiff suffered severe injuries. The defendant alleged that plaintiff was given a free lift and denied negligence. He also argued that since his car was comprehensively insured by the Third Party, (New India Assurance Ltd.) in the event of the court holding that he was liable to pay the plaintiff a specified amount as damages, he would be entitled to indemnity by this Insurance Company. The New India Assurance Co. contended that the application was incompetent because of an arbitration clause in the policy which made it a condition precedent that no suit will be instituted by either party, unless the party seeking a remedy in court of law had obtained an award.

                        Held: (1) As I have already stated, the affidavit of the   defendant did not say anything about the arbitration clause. In my view, it was necessary to mention not only that there was an arbitration clause, but to explain in what way the arbitration clause was being avoided. Unless this is done, this Court will not be in a    position to state whether the respondent should be joined in as a third part or not. The affidavit should have disclosed sufficient facts to show that the joining of the respondent would not be premature if     allowed. In the absence of these facts, this application cannot be granted. It is accordingly refused with costs.