Delhi High Court
Eagle Star Insurance Co. Ltd. And Anr. vs L.V. Kumar on 25 August, 1970
Equivalent citations: 8(1972)DLT32
JUDGMENT B.J. Misra, J.
(1) These two revisions (Civil) Revisions Mos 514 D and 515-D of 1965) have been filed by Eagle Star Insurance Company (respondent before the Tribunal below) under section 115 of the Code of Civil Procedure and are directed against the order oi the Motor Vehicle Accident Claims Tribunal, Delhi dated 22nd July, IS65, by which the learned Tribunal came to the conclusion that diplomatic immunity from civil process of municipal Courts covered the person of the diplomat and did not extend to his wife.
(2) The brief facts of the case are that the claimant in the Tribunal Shri L. V Kumar was on 11th October, 1964 driving his scooter No. D LN. 7941 when he was involved in an accident with motor vehical No, Cd 1427 which was owned by the Embassy of Polish peool Republic in India and it was insured with Eagle Star Insurance Company Limited, petitioner No. 1 before me. The said motor vehicle was allegedly being driven by Mrs. M. Polak, wife of the Ambassador. Shri L. V. Kumar moved an application under section 110-A of the Motor Vehicles Act 1939 for award of compensation amounting to0 60,220.00 on account of damages for injuries caused to him in the accident which is alleged to have occurred on account of the rash and negligent driving on the part of Mrs.Polak. The claim was preferred against Mrs. Polak as well as her husband Mr. Polak A claim under tbe same circumstances was also made by Smt. Santosh Kamari, wife of the respondent Shri L. V. Kumar, for injuries caused to her as she was riding on the back seat of the aforesaid scooter which is the subject- matter of the second revision.
(3) The defense raised was that Mr. Polak and his wife Mrs. Polak both were immune from the process of the Court.
(4) Both the cases were coasolidated and on the pleadings of the parties, the following were framed as preliminary issues . "1. Whether respondent Nos. 1 to 3 enjoy diplomatic immunity and the petition was not maintainable against tn"m ? 2 Whether the embassy is a legal person and the petition against respondent No. 3 is maintainable ? The learned Tribunal came to the conclusion that Mr. Polak enjoyed deplomatic immunity but the same did not extend to his wife.
(5) Aggrieved by the said order, the Insurance Company as petitioner No. 1 and Mis. M. Polak as petitioner No. 2, have come to this Court in revision and hive filed two revisions, one against Shri L. V. Kumar and the other against his wife Smt Santosh Kumari and they have reiterated the plea of immunity of Mrs. M. Polk from the process of the Court which they had raised before the Tribunal below.
(6) In my opinion, the point involved is a short one. Oppenheim in his Treatise on International Law, Volume I, Eighth Edition, 1966 reprint, his laid down in paragraphs 401 and 412 on page 809 and 810 that the individuals accompanying an envoy officially or in his private service, or as members of his family, or as couriers, compose his retinue. The members of the retinue belong, to four different classes and that tha third class of his retinue consists of the members of the family of tha envoy, namely his wife, children and such of his other near relatives as live within his family ind under hi? roof and it is a generally recpgnised rule of international law that all members of a legation are as inviolable and exterritorial as the envoy himself. They must begranted by the receiving State exemption from criminal and civil jurisdiction and they are considered, like the envoy himself, to retain their domicile within their home State Although the wife of the envoy, his children, and such of his near relatives as live within his family and under his roof belong to hie retinue;, there is a distinction to be made as regards their privileges. The wife must certainly be granted all his privilege in so far as they concern inviolability and exterritoriality. the same rules apply to the husband whose wife is an envoy. As regards the children and other relatives, no other general rule of International Law can safely be said to be generally recognised, than that they must be granted exemption from civil and criminal jurisdiction and although this rule was formerly not generally recognised, nowadays the exemption from civil and criminal jurisdiction of such members of an envoy's family as live under his roof is always granted. He has further in paragrap 417 observed that although the mission, and, therefore, the privileges of the enovy, come to an end on his death, the members of his family who resided under his roof, and the members of his suite, enjoy, their privileges until they leave, the country.
(7) The House of Lords in Engelke v. Musmann, 1928 Appeal Cases 433, observed, "by international law. which is part of the common law of this country, an Ambassador, by which term I intend to include diplomatic agents of all sorts the stately Ambassador in the restricted sense of the word, the special envoy, the resident minister, and the charge affairs is sent by the one country and received by the other upon the term that be has among his other diplomatic privileges immunity from legal process in the Courts of the country which recaives him. This immunity being accorded to him in order that he may transact his Sovereign's business, is a privilege which he cannot waive unless under direction from his Sovereign. The Ambassador further requires, in order that he may effectually do his Sovereign's business that there should be a like immunity for his personal family, that is to say his wife and his children if living with him and this privilege is a right privilege which may be waived by him but should unless waived by the Ambassador shall be taken to be for the benefit of the Ambassador." In Macartney v Garbutt, the Court held that a British subject, accredited to Great Britain by a foreign Government as a member of its embassy, is (unless he has been received by the British Government upon the express candition that he shall be subject thereto) exempt from the local jurisdiction of his own country and entitled immunity from its process, unless the same had been agreed to be waived at the time of his being received in the country.
(8) My conclusion, therefore, is that the diplomat is admittedly immune from the process of the Court. In that event, his wife should also be held entitled to the same .privilege. The well established immunity of the diplomat would become meaning less, if it is not extender to his wife who lives with him and who in a sense is a part of his being and whose presence and inviolaibility are essential for the discharge of his official duties. I therefore, hold that the wife of the diplomat enjoys immunity from the process of civil and criminal Courts in India and the impugned order must be set aside. I am not making any pronouncement on the privileges of the children and other members of the retinue of the diplomat, as the question does not arise in the case before me.
(9) Learned counsel for the respondent has, however, urged that the municipal Courts in India are not bound by the International law and they are governed by the provisions of the statutes of this courtry The submission of the learned counsel would be correct if I had found some provisions of municipal law inconsistent with the aforesaid International Law on the subject. Again Oppenheim in his Treatise on International Law, Eighth Edition, states in paragraph 21 (a) on page 39 that as regards Great Britain, all such rules of customary lnternational Law as are either universally recognised or have at any rate received the assent of this country are per se part of the law of the land. To that extent, there is still valid in England the common law doctrine to which Blackstone gave expression that the law of Nations is part of the law of the land and the same has been repeatedly acted upon by courts and apart from isolated obiter dicta it has never been denied by Judges. However, so far as treatise which affect private rights are concerned, they require for their enforcement by English Courts a modi- fication of the common law or of a statute and must receive parliamentary assent through an enabling Act of Parliament However, English statutory law is absolutely binding upon English Courts even it in conflict with lnternational law.
(10) So far as U S. A. is concerned, the principle that International law is part of the law of the land has been adopted even more clearly. Such customary International law as is universally recognised or has at any rate received the asseat of the United States, and further all international conventions ratisfied by the United States are binding upon American Courts, even if in conflict with previous American statutory law, but subsequent American Statutory law prevails if in conflict with previous customary or conventional International Law. Nevertheless, the incorporation of customary International Law as part of the law of the land, although it was first formulated in Anglo-Amcrican countries, is not confined to England and the United. States and the position has for a long time been essentially the same in many other countries.
(11) Maxwell in his Interpretation of Statutes, Twelfth Edition, under the heading "general presumption that the legislature docs not intend to exceed its jurisdiction", ha? laid down as follows:- "EVERYstatute is interpreted, solar its language permits, so as not to be inconsistent with the comity of nations or the established rules of international law, and the court will avoid a construction which would give rise to such inconsistency unless campelled to adopt it by plain and unambiguous language. But if the statute is clear, it must be followed notwithstanding the conflict between municipal and international law which results."
Neither counsel has cited any authority on the subject. The learned counsel for the respondent has, however, relied upon the provisions of sub-section (4) of section 86 of the Code of Civil Procedure which provides that the provisions of section 86, namely, that no ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government in writing by a Secretary to that Government which may be given in a few exceptional circumstances with which we are not concerned, shall apply in relation to any Ambassador or envoy of a foreign State as well as to any High Commissioner of a Common wealth country. Clause (e) of the said subsection further provide? that the protection shall apply to any such member of the staff or retinue of the Ambassador or envoy, as the Central Government may by general or special order specify in this behalf. No notification under section 80(4) of the Code of Civil Procedure issued by the Central Government has been brought to my notice. I, however do not find that the said provision of law is incontistent with the well established customary International Law, subject only to certain excep tional circumstances when with consent of the Government even a foreign ruler or an Ambassador may be sued.
(12) I have been informed that India has been a party the Vienna Convention on Diplomatic Relations, 1961 and Articles 31 and 37 of the same lay down as follows :- '3LA diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of. 37. (1) The members of the family of a diplomatic agent forming part of his house hold shall, if they are not nationals of the receiving State, enjoy the privileges and immunities spacified in Articles 29 to 36. Under the circumstances of the case. I am inclined to treat the aforesaid Articles of the Convention as part of the law of the land in the absence any of subsequent statutory provisions to the contrary and I hold that the wife of the envoy Mrs. M. Polak is immune from the process of the municipal Courts of the country and the proceedings cannot be instituted against her. Anargument had also been advancced before me to, the effect that in view of Bhagwat Singh v State of Rajasthan", the Tribunal below is not a Court and the proceedings before it are not a, suit as was held by the Supreme Court in respect of Industrial Tribunals. The facts of the said case are, however, entirely different. the Court itself observed in paragraph I" that it was unnecessary to enter upon a discussion as to what immunities and privileges a foreign sovereign would be entitled to in the Republic of India Moreover, the Motor Accident Claims Tribunal is very much like a civil Court and the proceedings before it are a special method of enforcing and recovering the claim against the respondent and they are entirely different from Industrial Tribunals hewing references under the Industrial Disputes Act. I have, therefore, to reject the contention.
(13) This finding, however, does not conclude the question of legal liability of the diplomat and his wife and the extent to which the Insurance Company consequently be liable for the claim of the respondent in dispute raised before the Tribunal below, would be decided on the merits of the case, bat no process of any kind would issae against Mr. or Mrs. M Polak by the Tribunal below.
(14) The learned counsel for the repondent lastly submitted that the Tribunal was not a civil Court and thererfore, the revision petition under section 115 of the Code of Civil Procedure were not competent. Without decrding this question io this case, I exercise my powers under Article 127 of the Constitution and set aside the impugned order of the Tribunal below and allow the petitions and hold that Mrs M. Polak is immune from the process of the Tribunal below. There will be' no order as to costs.