P. Sathasivam, J.
1. New India Insurance Company Limited has filed the above review application under Order 47, Rule 1 read with Section 114 of the Code of Civil Procedure, 1908, against the order made in C.M.A. No. 347 of 1988. The said appeal was filed against the order passed by the Motor Accidents Claims Tribunal, Namakkal, dated October 15, 1997, in M.C.O.P. No. 118 of 1985, filed by the claimant/first respondent herein.
2. The learned single judge of this court by order dated March 6, 1997, by applying the decision of the apex court in Complete Insulations (P.) Ltd. v. New India Assurance Co. Ltd. : AIR1996SC586 and in view of the amended provision under Section 157 of the Motor Vehicles Act directed the insurance company to pay the compensation fixed by the Tribunal. Accordingly, the said appeal, viz., C.M.A. No. 347 of 1988, filed by the claimant was allowed directing the second respondent therein, i.e., the insurance company, to make payment of compensation fixed by the Tribunal, i.e., Rs. 96,000, to the claimant with interest at the rate of 12 per cent. per annum from the date of petition till the date of deposit. Aggrieved by the said award the insurance company has filed the present review stating that the decision of the Supreme Court referred to by the learned single judge, Complete, Insulations (P.) Ltd. v. New India Assurance Co. Ltd. : AIR1996SC586 , is not applicable to the facts of this case, since the facts in that case as well as in the present case are completely different. It is also contended that inasmuch as the new Motor Vehicles Act has come into force with effect from July 1, 1989, and of the fact that in our case the accident took place on July 13, 1985, well prior to the new Act, only the provisions of the old Act are applicable and, hence, fastening the liability against the insurance company/review petitioner herein by the learned single judge cannot be sustained.
3. I have heard Mr. K.S. Narasimhan, learned counsel appearing for the petitioner, Mr. S. Sethuratnam, learned senior counsel for Mr. C. Pandian, learned counsel appearing for respondents Nos. 1 and 2 and Mr. K. Kuppuswamy, learned counsel appearing for respondent No. 3.
4. Learned counsel appearing for the review petitioner, after taking me through the decision of the Supreme Court in Complete Insulations (P.) Ltd. v. New India Assurance Co. Ltd, : AIR1996SC586 , has submitted that in the decision the purchaser had filed an application for transfer which was pending on June 24, 1989, i.e., within the period provided under Section 103A of the old Motor Vehicles Act. He also submitted that the amended Act came into force from July 1, 1989, and in the present appeal the facts are completely different and in view of the fact that no application was pending with the insurer within the statutory period granted under Section 103A of the old Motor Vehicles Act, the order of the learned judge has to be reviewed. Further, he also submitted that inasmuch as the accident took place on July 13, 1985, and the amended Act came into force from July 1, 1989, there is no question of applying Section 157 of the amended Act for the present case. On the other hand Mr. S. Sethuratnam, learned senior counsel, appearing for respondents Nos. 1 and 2, initially submitted that the review petition is not maintainable, since the very same objection was raised, considered and rejected by the learned judge. By relying on the Division Bench decision of this court in Dharman v. N.C. Srinivasan : (1989)1MLJ297 coupled with the decision of the Supreme Court referred to above in Complete Insulations (P.) Ltd. v. New India Assurance Co. Ltd. : AIR1996SC586 , he has submitted that the order of the learned single judge cannot be assailed on any ground and prayed for dismissal of the review application.
5. I have carefully considered the rival submissions.
6. Inasmuch as now we are concerned with the liability of the insurance company, it is unnecessary for me to traverse the facts leading to the negligence and quantum of compensation. Admittedly, the accident took place on July 13, 1985. It is also not disputed that two months prior to the said accident the vehicle was sold. It is the contention of learned counsel for the insurance company that even though the vehicle was transferred two months prior to the date of the accident, no effort was taken either by the transferor or transferee to intimate the same to the insurer regarding the transfer. Hence, in such a situation he contended that when once the vehicle is transferred, the policy is not transferred unless the new owner, that is, the transferee, applies for transfer of policy and gets an order from the insurance company to that effect. He also reiterated that the second respondent herein has neither applied for transfer of policy nor he has informed that the policy was transferred in his name and, therefore, so far as the liability regarding parties is concerned, the Act which was prevailing on the date of accident will apply. Since the accident had occurred on July 13, 1986, prior to the amended Act, the provisions of Section 157 are not applicable. There is no dispute that the provisions of the amended Act were made applicable with effect from July 1, 1989. If that is so, whether Section 157 of the amended Motor Vehicles Act is applicable to the facts of this case or Section 103A of the Motor Vehicles Act, 1939 (hereinafter called 'the old Act') is applicable has to be considered.
7. Since the matter in issue requires further consideration, even though learned senior counsel has raised an objection regarding the maintainability of the review petition, I am of the view that in order to solve the issue in dispute the contentions raised by the review petitioner have to be considered. Accordingly, I hold that the present review application is maintainable.
8. Now, 1 shall consider the decision to the effect that by applying Section 103A of the old Act the insurer is not liable to pay any compensation. In Bhoopathy v. Vijayalakshmi : AIR1966Mad244 , a Division Bench of this court has concluded :
'There is nothing in Section 96 of the Motor Vehicles Act which warrants the view that a sale or transfer of an insured car by the insured during the currency of the policy, does not terminate the policy. In the absence of a stipulation to the contrary in the policy the moment the insured parts with his car, the policy relating to it lapses because the car is the subject matter or the foundation of the contract of insurance. The insurer is not liable to the transferee for damages awarded to a third party for injuries caused by rash and negligent driving of the car on a date subsequent to the transfer of ownership.'
9. Learned counsel for the review petitioner has cited the following decision also. In Oriental Insurance Co. Ltd. v. Rajamani after considering the earlier decisions including the Division Bench decision in Dharman v. N.C. Srinivasan [1989] 1 MLJ 297 in similar circumstances, the Division Bench has held (page 361) :
'In view of the aforesaid well-settled legal position and the factual situation that the lorry had been transferred by the sixth respondent to the seventh respondent long prior to the date of the accident, and the transfer was not intimated either by the transferor or by the transferee to the appellant insurance company, the policy issued by the appellant insurance company to the sixth respondent lapsed on the transfer of the vehicle, and thereafter no liability could be fastened upon the appellant insurance company on the basis of such a lapsed policy.'
10. Likewise in Renga Perumal Raja v. Moideen Mulhu Beevi : (1993)IIMLJ166 another Division Bench almost considering the cases considered in Oriental Insurance Co. Ltd. v. Rajamani has taken the same view. In addition to these Division Bench decisions, Mr. K.S. Narasimhan has also very much relied on some of the, passages in the decision of the apex court in Complete Insulations (P.) Ltd. v. New India Assurance Co. Ltd. : AIR1996SC586 and contended that inasmuch as the accident took place on July 13, 1985, when the old Act was in force and the vehicle in question had been transferred two months prior to the accident, in the absence of any intimation either by the transferor or transferee the liability cannot be fastened on the insurance company. In such circumstances, according to him, the learned judge has failed to consider the above aspects.
11. Mr. Sethuratnam, learned senior counsel appearing for respondents Nos. 1 and 2, has very much relied on a Division Bench decision of this court in Dharman v. N.C. Srinivasan : (1989)1MLJ297 . Their Lordships of the Division Bench, after following the Full Bench decision of the And-hra Pradesh High Court in Madineni Kondaiah v. Yaseen Fatima [1986] 60 Comp Cas 762 ; [1986] ACJ 1 have concluded :
'We, therefore, hold that the defence that on sale of the vehicle during the period of cover, the policy had elapsed, is not one that is available to the insurer under Section 96(2) as against third party claims.'
12. The perusal of the Full Bench decision of the Andhra Pradesh High Court in Madineni Kondaiah v. Yaseen Fatima [1986] 60 Comp Cas 762 ; [1986] ACJ 1 shows that their Lordships have considered almost all the case laws rendered by various High Courts as well as the apex court prior to their decision. The said view has been followed by the Division Bench case in Dharman v. N.C. Srinivasan : (1989)1MLJ297 .
13. It is true that in identical circumstances, considering the scope of Section 96(2) of the old Act, the Division Bench Dharman v. N.C. Srinivasan : (1989)1MLJ297 has taken a view that it is not open to the insurance company to disown its liability since such a defence has not been covered or available to the insurer under Section 96(2) of the Act, so far as against third party claims. It is seen that the said decision has been dissented from by two Division Benches of this court in Oriental Insurance Co. Lid. v. Rajamani and Renga Perumal Raja v. Moideen Muthu Beevi [1994] 79 Comp Cas 700 ; : (1993)IIMLJ166 After going through the three above referred Division Bench decisions, at one stage, I was of the view that the matter has to be considered by a larger Bench in order to have an authoritative decision. But, however, after reading the entire judgment of the apex court in Complete Insulations (P.) Ltd. v. New India Assurance Co. Ltd. : AIR1996SC586 , I have changed my view. In the said decision, their Lordships of the Supreme Court considered the relevant provisions under the old Act as well as in the new Act. As a matter of fact, they have extracted Section 103A of the old Act as well as Section 157 of the new Act. Following the conclusion by the Supreme Court in the said decision it makes the position clear and I hereby extract the relevant portions from the said judgment (page 370) :
'Thus, under the old Act the insured was required to apply in the prescribed form to the insurer for transfer of the certificate of insurance and the policy described therein. Once such an application was made the insurer had to communicate its refusal within fifteen days of the receipt of the application for transfer failing which the certificate of insurance and the policy described therein shall be deemed to have been transferred in favour of the transferees. This shows that the insurer had the right to refuse transfer of the certificate of insurance and the policy described therein provided the right was exercised within the stipulated time of fifteen days. Section 157 of the new Act introduces a deeming provision whereby the transfer of the certificate of insurance and the policy of insurance are deemed to have been made where the vehicle along with the insurance policy is transferred by the owner to another person. This provision has withdrawn the insurer's right of refusal which was granted under the old Act.
Now, under the old Act although the insurer could refuse to transfer the certificate of insurance in certain circumstances and the transfer was not automatic as under the new Act, there was under the old law protection to third parties, that is, the victims of the accident. The protection was available by virtue of Sections 94 and 95 of the old Act . . .
The new Act came into force with effect from July 1, 1989. Since the vehicle in question was sold on June 15, 1989, and the letter of intimation of transfer and request for transfer of the certificate of insurance and the policy described therein was sent on June 26, 1989, the old Act applied. Admittedly, the request was not refused under Section 103A of the old Act till the new Act came into force. Thereafter, on July 24, 1989, the insurance company was once again requested to effect the transfer of the certificate of insurance as well as the policy but to no avail. By that day the new Act had come into force. Actually the application dated June 26, 1989, was pending when the new Act had came into force. That application had to be processed under Section 157 of the new Act and hence the certificate as well as the policy must be deemed to have been transferred in the name of the transferee. Even if it is assumed that the old Act applied to pending cases, the certificate and policy must be deemed to have been transferred since no refusal was communicated by the insurance company to the transferor or the transferee. Therefore, in either case, the transfer of the certificate of insurance and policy described therein must be taken as complete in view of the language of Section 103A of the old Act and Section 157 of the new Act.'
14. It is also clear that the view expressed in Madineni Kondaiah v. Yaseen Fatima [1986] 60 Comp Cas 762 ; [1986] ACJ 1which has been followed by the National Consumer Disputes Redressal Commission is approved by the Supreme Court in the above said decision. They also make it clear that (page 374) :
'Since the provisions under the new Act and the old Act in this behalf are substantially the same in relation to liability in regard to third parties, the National Consumer Disputes Redressal Commission was right in the view it took based on the decision in Madineni Kondaiah v. Yaseen Fatima [1986] 60 Comp Cas 762 ; [1986] ACJ 1 because the transferee insured could not be said to be a third party qua the vehicle in question.'
15. In view of the above discussion, and in view of the law laid down by the apex court in the above referred decision, it is clear that in so far as third parties are concerned even under the old Act their interest and rights are well protected. In such circumstances, I do not find any error or infirmity in the order under review. Accordingly, the review application is dismissed.
16. In view of the dismissal of the review application, C. M. P. No. 15700 of 1997, is also dismissed.