J.H. Bhatia, J.
1. Both these appeals may be disposed of by this common judgment as they arise from common judgment passed by the Motor Accident Claims Tribunal in two Claim Petitions arising out of the same accident.
2. Briefly stated, one Shankar Indasrao along with his daughter Kumodini was proceeding on his bicycle on 5-9-1982 at about 9.30 a.m. At that time, a truck bearing No. MPI 3980 came from opposite direction in high speed. The truck came to the wrong side of the road from its direction and dashed against bicycle, due to which said Shankar and his daughter fell down with their bicycle and both were run over by the truck. In the result, both of them died on the spot. Widow and three children of Shankar filed Motor Accident Claim Petition No. 23 of 1983 claiming compensation for the death of Shankar, who was serving as teacher before death. Widow of Shankar also filed Motor Accident Claim Petition No. 24 of 1983 seeking compensation for the death of her daughter in the said accident. The petitions were contested. Rajaram, the respondent No. 1 in the said petitions was said to be driver of the truck. The truck was registered in the name of respondent No. 2-A Gyarsilal Agrawal and the truck was insured with respondent No. 3 New India Assurance Company. However, it was contended that before the date of accident, Gyarsilal had sold away the said truck to respondent No. 2 Hiralal. Therefore, initially, the petitions were filed against respondent Nos. 1 to 3 being the driver, purchaser of the vehicle Hiralal and the Insurance Company. Later on, Gyarsilal, registered owner of the truck was also impleaded as respondent No. 2-A in both the petitions. While it was denied by the respondents that the accident had taken place due to the rash and negligent driving by the driver, it was also contended on behalf of the registered owner and Insurance Company that truck was sold away to Hiralal prior to the date of accident and the driver was under the employment of respondent No. 2 and therefore, neither the registered owner nor the Insurance Company were liable to pay any compensation. It was also contended that cyclist himself was responsible for the accident because he was proceeding with double-seat as well as a gunny bag containing Bajra on the carrier of bicycle.
3. Several issues were framed by the learned tribunal and after hearing oral and documentary evidence, the learned tribunal held that the accident had occurred due to rash and negligent driving of the truck and not due to any negligence on the part of cyclist. It was also held that in spite of agreement for sale of the truck, ownership of the truck was still with the registered owner and, therefore, registered owner Gyarsilal was liable on the principle of vicarious liability and the Insurance Company was bound to indemnify him. With these findings, taking into consideration the income and age of deceased Shankar and the loss of dependency of the petitioners, the learned tribunal passed an award directing the truck driver, registered owner and the Insurance Company to pay an amount of Rs. 1,08,800/- with interest @ 12% p.a. from the date of filing of petition, as compensation, in Claim Petition No. 23 of 1983. The learned tribunal granted compensation to the tune of Rs. 16,000/- on account of death of daughter, to the petitioner, in Claim Petition No. 24 of 1983.
4. First Appeal Nos. 327 of 1996 and 328 of 1996 are filed against awards passed in Claim Petition Nos. 23 of 1983 and 24 of 1983 respectively. The original respondent No. 3 Insurance Company and original respondent No. 2-A registered owner of the truck preferred these two appeals and they were shown as appellant Nos. 1 and 2. However, later on in First Appeal No. 328 of 1996, the appellant No. 2 Gyarsilal was transposed as respondent No. 4. Therefore, for the sake of conveyance, parties will be referred as per their original status.
5. While, several grounds have been raised challenging the judgment and awards, Mr. Kulkarni, the learned Counsel for Insurance Company, pressed the appeals mainly on three grounds. According to him, though the vehicle was registered in the name of Gyarsilal, he had sold it away to original respondent No. 2 Hiralal prior to the accident and, therefore, the driver was employee of said Hiralal and not of Gyarsilal. Hence, Gyarsilal cannot be held vicariously liable for rash and negligent driving of the driver and the Insurance Company was also not liable to indemnify him. Secondly, he urged that as per the provisions of Section 95(2) prior to amendment in Motor Vehicles Act, 1939 w.e.f. 1-10-1982, the total liability of the Insurance Company was limited to Rs. 50,000/-. By the said amendment, the liability was increased to Rs. 1,50,000/-, but as the accident had taken place prior to the date of amendment, retrospective effect could not be given to the amendment and the Insurance Company could not be held liable to pay compensation more than the amount of Rs. 50,000/- in all. Thirdly, he contended that the learned tribunal had deducted 20% amount from the total compensation found due, on account of death of daughter Kumodini due to negligence of his father who was driving the cycle, but while awarding compensation, for his own death, no such deduction made. In view of this, according to him, firstly the Insurance Company is not liable to pay any compensation. Secondly, even if it is held liable, liability would be limited to Rs. 50,000/- and thirdly on account of contributory negligence of deceased Shankar himself, the amount of compensation should have been reduced proportionately.
6. Mr. Wani, the learned Counsel for the registered owner Gyarsilal, contended that as the truck was already sold to Hiralal prior to the accident and Hiralal had specifically agreed that for any accident or police case etc. he himself would be responsible, the registered owner Gyarsilal cannot be held liable to pay any compensation, even though, on the registration certificate his name continued as a owner. None appeared for truck driver Rajaram and purchaser Hiralal. Even though, three counsel Ms. B.H. Gaikwad, Mr. V.D. Patnoorkar and Mr. H.G. Rathod, have filed their Vakalatnama on behalf of the original petitioners/claimants, unfortunately, none of them bothered to appear at the time of hearing of these appeals before this Court.
7. Perused the record and proceedings of the tribunal. Following points arise for determination and I record my findings for the reasons given below :
--------------------------------------------------------------------------------POINTS FINDINGS--------------------------------------------------------------------------------i. Whether the ownership over the said truck was transferredfrom Gyarsilal to Hiralal prior to the date of accident Noii. Whether the Insurance Company and registered owner areliable to pay compensation in spite of the fact that the truckwas being plied by Hiralal on the basis of agreement for sale? Yesiii. Whether the liability of the Insurance Company was limited toRs. 50,000/- in view of the provisions of Section 95(2) as itstood prior to the amendment w.e.f. 1-10-1982? NOiv. Whether the deceased Shankar was also responsible for theaccident? Nov. Whether the judgment and award passed by the tribunal needsto be interfered? Novi. What order As per finalorder.
Reasons :
8. Admittedly, the accident had taken place on 5-9-1982. The amendment was made in Section 95(2) of the Motor Vehicles Act, 1939 w.e.f. 1-10-1982. Prior to the said amendment, Section 95(2)(a) stood as under :
Section 95(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely --
(a) where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle;
By making amendment, the limit of liability of the Insurance Company was raised from Rs. 50,000/- to Rs. 1,50,000/-, Mr. Kulkarni, vehemently contended that on the date of accident, the liability of the Insurance Company was limited to Rs. 50,000 /- and therefore, no award for more than Rs. 50,000/-could have been passed against the Insurance Company. He pointed out that learned tribunal has held that the amendment has retrospective effect in view of the authority of this Court in Oriental Fire and General Insurance Co. Ltd, Goa v. Shantabai Dhume and Ors. 1987 Mh.L.J. 35 : 1987(2) TAC 57, rendered by the learned Single Judge. In that case, the question was whether the benefit under Section 92(a), which was introduced for the first time by the amendment in Motor Vehicles Act w.e.f. 1-10-1982, could be available in the cases pending before the Court though the accident had taken place prior to the date of amendment. The learned single judge held that the benefit of no fault liability would be available in such cases. Relying on the said authority, later on, Tribunal came to conclusion that the amendment in Section 92(2) raising liability of Insurance Company from Rs. 50,000/- to Rs. 1,50,000/- will also have retrospective effect to the cases where the accident had occurred prior to the amendment but the Claim Petitions were filed after the amendment or where the Claim Petitions were pending at the time of amendment. Mr. Kulkarni, rightly pointed out that the judgment rendered by the learned single Judge in the above referred Oriental Fire and General Insurance Company v. Shantabai (supra) was overruled by the Division Bench of this Court in the case of Prakash Khatri v. Suresh Makhija 1991 Mh.L.J. 1034. The Division Bench of this Court was dealing with similar situation on account of increase in the amount of no fault liability in view of Section 140(2) of the Motor Vehicles Act, 1988. Before the new Act came into force in 1989, Motor Vehicles Act, 1939 was in force and under Section 92(2) no fault liability was restricted to Rs. 25,000/- and Rs. 12,500/- in case of death or permanent disability respectively, while by Section 140(2) of the Motor Vehicles Act, 1988 this liability was enhanced to Rs. 50,000/- and Rs. 25,000/- respectively. In the case of Prakash Khatri (supra), the Division Bench held that if the accident had taken place prior to Motor Vehicles Act, 1988 coming to force, no fault liability would be restricted as per provision of Section 92(a) of the Motor Vehicles Act, 1939. It was held that Section 140 had no retrospective effect. In view of this I agree with Mr. Kulkarni that the amendment in Section 95(2) enhancing the liability from Rs. 50,000/- to Rs. 1,50,000/- had no retrospective effect and to that extent the observations of the learned tribunal cannot be accepted, particularly in view of the Division Bench's authority of this Court.
9. However, it may be noted that Section 95(2)(a) mandated that policy of insurance shall cover liability incurred in respect of one accident, in case of goods vehicle to Rs. 50,000/-. That was the minimum legal requirement. It means the Insurance Company was bound to cover the liability upto Rs. 50,000/- but this limit could be increased by the proposal and terms of the insurance contract between the Insurance Company and insured. The learned tribunal has rightly noted that in the written statement, in Insurance Company had nowhere pleaded that as per the policy taken by the registered owner, the liability of the Insurance Company was limited to Rs. 50,000/- only. As no such plea was taken, no issue was framed and no evidence was led by the parties. The judgment of the learned tribunal reveals that for the first time, at the time of arguments, it was contended that the liability was limited to Rs. 50,000/- in view of the provisions of Section 95(2) of Motor Vehicles Act. As the Insurance Company had neither pleaded nor proved that its liability was in fact limited to Rs. 50,000/ only and not more, the learned tribunal was right in holding that the liability could be more than that as per the terms of the Insurance contract. Naturally it was for the Insurance Company to plead and approve that it's liability was not more than Rs. 50,000/-, that burden was not discharged by the Insurance Company. Therefore, no fault can be found with the award passed by the Tribunal at least on this count.
10. Admittedly, the accident took place on 5-9-1982 and admittedly at that time, the truck was registered in the name of Gyarsilal. According to him, on 15-5-1982 he had sold the truck to Hiralal and possession of the truck was given to him and he was operating and plying the truck. Exh. 100 is the document under which Gyarsilal claims to have sold the truck to Hiralal. The terms of the contract are quoted in the impugned judgment of the tribunal. The document is on five rupees stamp paper. The title of the document itself reads 'Vikri Kararnama' i.e. agreement for sale, which shows that Gyarsilal had agreed to sell his truck to Hiralal for Rs. 77,880/-. Out of which, an amount of Rs. 37,700/- was paid by the purchaser on the same day and possession of the truck was given to him. Balance amount was to be paid in monthly instalments of Rs. 3,300/- beginning with June, 1982. It appears that whole of amount was liable to be paid by instalments by June, 1983. The terms of the contract clearly show that in case of failure to pay any two instalments, the registered owner could take back the possession of the truck. The truck would be transferred in the name of purchasers on payment of last instalment. Till all instalments were paid, the ownership of the truck was to continue with the registered owner and the purchasers had no right or title to transfer the vehicle to any other person. In case of any such transfer, the registered owner would be entitled to immediately take back possession of the truck. In view of these terms and conditions, it is clear that even though under the agreement for sale possession of the truck was handed over by the registered owner Gyarsilal to Hiralal and Hiralal was also allowed to operate and ply the truck, the property in or ownership of the truck continued to be with registered owner. It was not transferred to the purchaser. When the accident took place on 5-9-1982 the ownership and the title over the truck was still with Gyarsilal. In United India Insurance Co. Ltd. v. Smt. O. Jameela Beevi and Ors. : AIR1991Ker380 , the Division Bench of Kerala High Court observed as follows :
The law in regard to transfer of such property is embodied in the Sale of Goods Act. A distinction between sale and agreement to sell is clearly conceived and laid down in the Act. A contract of sale is a contract whereby the seller transfers or agrees to transfer the property in the goods to the buyer, for a price, such contract of sale may be absolute or conditional. Where, under any contract of sale 'the property in the goods' is transferred the contract is called sale. But where the transfer of the property in the goods in not immediate but is to take place subject to some conditions thereafter to be fulfilled the contract is called an agreement to sell and not a sale. Thus, an agreement of sale of goods becomes a sale 'when ... the conditions are fulfilled subject to which the property in the goods is to be transferred'. In other words, where the parties are agreed that certain movable property shall be transferred upon fulfilment of a condition, the transfer of property in the goods is not complete until the condition is fulfilled. In the case of a contract for the sale of specific or a certain property the general rule enacted by law is that the property in such goods is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Therefore, in case of dispute about the transfer of such property the primary task is to ascertain the intention of the parties.
The terms of the contract in the present case as stated above, clearly indicate that the parties had clearly intended and agreed that the ownership of the vehicle would transfer to the purchaser only on the payment of last instalment when the registered owner would be required to execute documents and to get the vehicle transferred in the name of purchasers in the office of R.T.O. In view of the legal position and the facts stated above, it becomes clear that on the date of accident, Gyarsilal was the owner of the vehicle. Even though under the agreement he had handed over the possession of the truck to Hiralal, possession was not transferred to Hiralal. He was allowed to operate on the basis of permission granted by the owner. Though, at the relevant time, driver was employed by Hiralal, still registered owner Gyarsilal would be vicariously liable for the rash and negligent driving of the truck as the truck was being operated, plied and driven with his permission. Therefore, under the terms of Insurance policy, the Insurance Company was also liable to indemnify Gyarsilal for the liability incurred by him for the said accident.
11. In the case of G. Govindan v. New India Assurance Co. Ltd. and Ors. : [1999]2SCR476 , the Supreme Court approved the following observations of Full Bench of Andhra Pradesh High Court in the case of Mandineni Kondaiah v. Yaseen Fatima 1986 ACJ 1 :
A perusal of Section 94 clearly discloses that the statute intended to give protection to the third party in respect of death or bodily injury or damage to its property while using the vehicle in a public place. Hence the insurance of the vehicle under Section 94 read with Section 95 is made compulsory. Those two provisions do not extend the compulsory insurance to the vehicle or to the owner. In fact, these two provisions made exception to protect the life or limb of the driver of the vehicle or the passenger in the vehicle except public service vehicle. Thus, it is seen that the compulsory insurance is for the benefit of third parties. Hence, it is clear that the insurance policy covering three kinds of risks, i.e. person (owner), property (vehicles) and third parties is clearly in the nature of composite one. The public liability (third party liability) alone is compulsory. While considering whether the transfer of the vehicles would put an end to the policy, we must see whether such a composite policy will lapse putting an end to all the three kinds of risks undertaken by the Insurance Company. For this purpose Section 95(5) must be looked into;
Notwithstanding anything elsewhere contained in any law, the person issuing a policy of insurance under this section 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 in the case of that person or those classes of persons.
This section is clearly based upon provision of English statute. This section is analogous to the provision in England where the Third Party's Rights Against Insurers Act, 1930 was enacted to confer on third parties rights against the insurer of the third party risks. The present Act made a specific provision in case where the insurer becomes insolvent or dies (vide Sections 101 and 102 of the Act) to obviate any doubt or dispute in respect of such events. Section 95(5) intended to cover two legal objections, firstly, than no one who was not a party to a contract could bring an action on a contract, secondly, that a person who has no interest in the subject-matter of an insurance can claim the benefit of insurance. Thus, this provision puts beyond doubt removing these two objections and making an exception to the general law of contract. Now the question is whether such rights secured to the third party by insuring the vehicle can be defeated by transferring the vehicle during the period when the policy is in force. It is significant to note that Section 94 required the insurance of the vehicle. Once the vehicle is covered by the insurance not only the owner but any person can use the vehicle with his permission. Section 94 does not require that every person that uses the vehicle shall insure in respect of their separate use. The registration of the vehicle in the name of the transferee is not necessary to pass title in the vehicle. Payment of price and delivery of the vehicle makes the transaction complete and the title will pass to the purchaser. When the policy of insurance obtained by the original owner of the vehicle is composite one covering the risks for his person, property (vehicle) and the third party claim, on passing of title the transferee cannot enforce his claim in respect of any loss or damage to his person and vehicle unless there is a novation. So far the third party risk is concerned the proprietary interest in the vehicle is not necessary and the public liability continues till the transferor discharges the statutory obligation under Sections 29-A and 31 read with Section 94 of the Act. Till he complies with the requirement of Section 31 of the Act the public liability will not cease and that constitutes the insurable interest to keep the policy alive in respect of the third party risks concerned. It must be deemed that the transferor allowed the purchaser to use the vehicle in a public place in the said transitional period and accordingly till the compliance of Section 31, the liability of the transferor subsists and the policy is in operation so far it relates to the third party risks.
From this, it becomes clear that this authority supports the view taken by me that even when the vehicle was being operated and plied by Hiralal with permission of the registered owner, still the Insurance Company would be liable to third party.
12. Mr. Kulkarni, contended that in view of authority in the case of Rikhi Ram and Anr. v. Sukhrania and Ors. : [2003]1SCR872 , the Insurance Company should be held entitled to recover the compensation amount either from insured Gyarsilal or from transferee Hiralal. In fact, in that case relying upon G. Govindan, it was held by the Supreme Court that even where the motorcycle was transferred by the insured prior to the date of accident but no intimation of transfer was given to the Insurance Company, liability of the Insurance Company would not cease so far as third party is concerned. However, it was held that in such case the Insurance Company may recover amount paid by it either from the insured or from the transferee of the vehicle. In fact, the said authority would be applicable only if the vehicle had been actually transferred. Meaning thereby that ownership of the vehicle had been transferred to the purchaser but intimation had not been given. If the ownership of vehicle is not transferred, merely because under the agreement for sale, the insured or the registered owner, has permitted another person to operate and ply the vehicle, neither the insurance policy will lapse nor the Insurance Company would cease to be liable to third party nor by virtue of the authority in Rikhi Ram v. Sukhrania (supra), the Insurance Company can recover the amount from insurer or the person operating the same with permission of the insured.
13. Record reveals that the cyclist was going by the extreme left side of the road from his direction. The truck was coming from the opposite side in high speed. The tar road was 23' with Kachha strips on both the sides. No other vehicle was on the road. In spite of this, the truck went to the extreme right side from its direction i.e. to the wrong side by the traffic rules and dashed the bicycle, due to which the bicycle as well as the cyclist and rider fell down and were run over by the truck. There is evidence of eye witness to this effect supported by spot panchanama. Therefore, the learned tribunal was perfectly justified in holding that the accident had taken place due to the rash and negligent driving of the truck and not because of the cyclist. In view of this, there could be no justification to reduce the amount of compensation on account of death of cyclist. It is true that the learned tribunal reduced the compensation in case of death of daughter Kumodini observing that the cyclist was carrying Bajra bag on the carrier of the bicycle and his daughter was sitting on the bar of bicycle. It was observed that his act of taking Kumodini on the bar of the bicycle along with bag of Bajra on the carrier would be a negligent act and that negligence on his part is contributory to the death of Kumodini. It is not necessary to make any comment about these observations but it is clear that the learned tribunal had no doubt in mind that the accident had taken place due to the rash and negligent driving of the truck resulting in two death. The learned tribunal in its award held that the cyclist was to some extent responsible for the death of his daughter because of manner in which he was taking her on the cycle. Merely because the learned Tribunal deducted the amount of contribution payable on account of death of Kumodini, by 20%, there can be no justification to hold the cyclist responsible for the accident resulting in his own death.
14. In view of the facts, circumstances and the legal position, discussed above, I find no fault with the impugned judgments and awards. I do not see any reason to interfere in the same. Both the appeals are devoid of any merit and therefore, they are required to be dismissed.
15. For the aforesaid reasons, both the appeals are hereby dismissed. As none appeared on behalf of the claimants-respondents at the time of final arguments, there shall be no order as to costs.