1. These four appeals are being disposed of together by this common judgment.
2. On 3rd April 1995 when the case came up for consideration Shri D. S. Thakur Advocate had appeared on behalf of respondent No. 3, National Insurance Company. He was directed to obtain instructions from the Insurance Co. in all the four cases. On 18 April 1995, however, when the case came up for hearing, Mr. Thakur informed the court that he had contacted his client, but they conveyed to him that some other counsel had been engaged. No other counsel however, appeared on behalf of the Insurance Company.
3. The appeals are directed against judgments dated 26-10-91 in all the four cases delivered by the learned Motor Accident Claims Tribunal, Rajouri whereby the respondent National Insurance Company has been totally absolved of its liability to pay the compensation amount and respondent Jugal Kishore has been held liable and responsible to pay the entire compensation amount in favour of the claimants. The appellants' contention is that the Tribunal erred in law in determining and fixing the responsibility to pay compensation qua respondent Jugal Kishore and that the finding of the Tribunal that the vehicle's ownership vested in this respondent was erroneous and incorrect, It was also contended by the appellants that since respondent Satish Kumar Handa continued to be the owner of the vehicle as on the date of the accident, he was liable to pay the award and in turn the insurer of the vehicle was liable to indemnify him for any such payment.
4. The facts are not disputed which are indeed very short and brief, On 13 May 1987, an accident occurred involving Bus No. JKQ-4077. Suraj Parkash respondent was driving the bus at the relevant time. The allegation was that on 13-5-87 while bus was being driven by Suraj Parkash, it met with an accident and fell into a deep Khud near Tain Bridge, Rajal, Nowshera District Rajouri. The driver was accused of driving the bus rashly and negligently which caused the accident. As a result of this accident, a large number of persons died and some others sustained injuries. Some claim petitions were disposed of in Jammu, some in Rajouri and some others are stated to be still pending disposal before Motor Accident Claims Tribunal, Rajouri. The versions put by the respondents were interesting as well as intriguing. It appeared that the respondents put up a version that the vehicle, even though standing in the name of Satish Kumar Handa respondent as its registered owner was actually in the ownership of respondent Jugal Kishore as on the date of the accident, and therefore, it was respondent Jugal Kishore who was liable to pay the compensation amount, being the real owner of the vehicle. That being done, the Insurance Co, set up a defence accordingly that since the vehicle got transferred from its registered owner Satish Kumar Handa in favour of another person Jugal Kishore, it got itself absolved of any liability because the transfer was effected without its consent, knowledge or concurrence.
5. The following four issues were framed by the Tribunal in all the cases :--
'1. Whether on 13-5-87 the respondent Suraj Parkash while driving bus No. 4077/JKQ rashly and negligently near bridge Nowshera under the employment of respondent Jugal Kishore, caused the accident which resulted in the death of deceased Mushtaq Ahmad? OPP
2. In case issue No. 1 is proved in the affirmative whether the petitioners are entitled to compensation. If so, how much from whom and in what proportion? OPP
3. Whether there was contravention of condition in Insurance policy and there was no privity of contract between respondent Jugal Kishore, the owner of the vehicle and the Resp. National Insurance Co. If so, what is the effect of it on the claim petition? OPR-3
4. Relief.'
6. . We are not concerned with the findings on Issue No. I as a whole and on issue No. 2 partly. In this appeal, our concern revolves around the pan finding on issue No. 2 and the finding on Issue No. 3, because its finding determined the limit of liability and responsibility qua the respondents and it is based on these findings that the Tribunal vide the judgment under appeal absolved Satish Kumar Handa respondent of its liability in turn absolving National Insurance Co. respondent of its liability and, therefore, hold Jugal Kishore respondent to be liable for paying the compensation amount in its entirety.
The case of the respondents was based on two factors, firstly, that before the date of accident, the vehicle's ownership stood transferred by Satish Kumar Handa in favour of Jugal Kishore and that vide a decree passed on 25-11-87 by this Court in COS No. 195 of 1987, this court held respondent Jugal Kishore to be the owner of the vehicle in question. It is worthwhile to reproduce the contents of the court judgment dated 25-11-87 in COS No. 195/87 which formed the basis of passing of aforesaid decree :--
'HIGH COURT OF JAMMU ANDKASHMIR AT JAMMU PRESENTTHE HON'BLE MR. JUSTICEK. K. GUPTA CIVIL ORIGINAL SUIT NO. 195 OF 1987.
Nemo for the parties.
It appears that the defendant has filedwritten statement today admitting the claimof the plaintiff and has made a prayer that adecree as prayed for by the plaintiff begranted and all liabilities pertaining to BusNo, JKQ-4077 accruing after 6-12-1985 be declared as prayed for which would be discharged by him exclusively. The DeputyRegistrar of this court has recorded statements of Shri A.K. Sawhney Advocate for the plaintiff and Sh Jugal Kishore defendant in which they have stated that they have entered into a compromise and a decree as prayed for be granted. In view of the compromise entered into between the parties a decree as prayed for is passed. Jammu.November 25, 1987 Sd/- H. Judge.'
7. One thing which shall be absolutely evident from the perusal of the judgment is that the decree was passed, based on a compromise recorded between the parties and that the court had no occasion to go into the merits of the controversy relating to the fact as to whether the vehicle's ownership vested with Satish Kumar Handa or that it got transferred from him in favour of Jugal Kishore. In other words this court did not pass the decree on the merits of the case at all merely because the parties stated in the court that they had compromised with regard to the disputes in the suit and that based on such compromise the decree be passed. Not only that, it clearlly appears that the decree was passed in a collusive suit between the parties. It also is clearly evident that the suit was filed after the occurrence of the accident, even though it appears that the allegations were founded on some miscoceived happenings as well prior to the date of the accident. All these factors are wholly irrelevant because this court while disposing of the suit had no occasion to apply its mind nor had it at all decided any issue which could be considered as of binding effect. The decree was totally on the basis of a compromise which could have been the act of sham and farcical. The intention behind filing the suit appeared to be clear, looking at the timing of the suit. Such a decree therefore, was not at all binding upon anyone muchless the persons who are not parties in the suit, muchless the poor claimants in the present claim petition. Also the Insurance Co. could not take any benefit out of this decree.
8. It is also in evidence that Satish Kumar Handa had lodged a claim for damage to the vehicle after the accident since admittedly the vehicle had suffered extensive damage rendering it a total loss. It is an undisputed case of the parties that Satish Kumar Handa had received the cheque from the Insurance company for loss in respect of the damage to the vehicle and that all occurred after the accident. If Satish Kumar Handa had allegedly sold the vehicle to Jugal Kishore before the accident, why did he lodge a claim with the Insurance Company for damage and loss of the vehicle in the accident and why did the Insurance Co. pay the amount of claim for damage to the vehicle. Satish Kumar Handa, therefore, on his own showing was a liar a person who was not speaking the truth because on the one hand he lodged and received claim as owner from the Insurance Co. after the accident and on the other hand, he made a false statement in this Court that he had sold the vehicle much prior to the accident and that he had no interest of ownership or title in the vehicle as on the date of the accident.
9. All these facts apart, the ownership of the vehicle, its registration certificate remained all through in the name of Satish Kumar Handa who also was shown as the insured of the vehicle in the records of the Insurance Company. He also had the title and ownership of the vehicle and he was the legitimate insured of the vehicle in all respects and from all points of view. The findings of the Tribunal, therefore, that the vehicle stood transferred in the name of Jugal Kishore and that he was the real owner of the vehicle on the date of the accident and after that Satish Kumar Handa had ceased to be the vehicle's owner on the date of the accident are patently erroneous and contrary to the facts on record. These findings appear to have been returned by the Tribunal in gross misapplication of law on the subject. It appears that the Tribunal was led into returning these findings primarily because of the force of the decree passed by this court, which as noticed above had no applicability as such nor had it any binding force. The findings therefore deserve to be reversed and set aside.
10. Once having been found that Satish Kumar Handa was and continued to be the owner of the vehicle as on the date of the accident, there is no difficulty in fastening the liability upon him to pay the compensation amount. He therefore, is held to be the owner of the vehicle as on the date of the accident and, that being the case is liable to pay the compensation amount to the claimants as assessed by the Tribunal. Now comes the question of the liability of the Insurance Company. Admittedly there existed a policy of insurance in respect of the vehicle, duly issued by the respondent-National Insurance Company. It is the undisputed fact of the case that the policy of insurance did exist as on the date of the accident, which was duly in force and it was legitimately and legally issued by the respondent-National Insurance Company. That being the case, the National Insurance Company was liable to indemnify the insured of any award that may be obtained against him by the claimants. Having settled that issue, this takes us to the next defence of the Insurance Co., viz. that in any event, its liability was limited to Rs. 15,000/- per passenger. The policy of insurance was produced in the Tribunal which clearly revealed that there was no endorsement as such with regard to the limited liability of the insurance company. In a judgment delivered on 12-10-1993 by the Motor Accident Claims Tribunal, Jammu in related Claim Petitions Nos. 52/90, 173/89, 177/89, 174/89, 179/89 and 175/89 arising out of the same accident relating to the same bus, the Tribunal in Jammu held and found that the space regarding the limitation of liability in the insurance policy was left vacant, totally unfilled. The Tribunal in Jammu held that against the column of the limits of liability in the insurance policy, no limitation whatsoever had been inserted and that, on the face of such situation as obtaining with regard to the document as such, the oral testimony of the witnesses produced by the insurance company could not be helpful to it nor could oral statements of the witnesses change or override the documentary evidence existing. After analysing the evidence orally produced by the insurance co., as contained in the statement made by Shri Ram Kumar Mittal, Asstt. Branch Manager etc. etc., the Motor Accident Claims Tribunal, Jammu clearly held that the liability of the insurance company was unlimited since no limit of liability was prescribed in the insurance policy. That judgment of the Tribunal delivered on 12-10-93 was appealed against in this Court, but was not set-aside, turned down or reversed. As against such detailed findings, based on facts and law returned by the Motor Accident Claims Tribunal, Jammu in the aforesaid judgment, Motor Accident Tribunal, Rajouri in the judgment under appeal has returned a very sketchy finding on slip-shod appreciation of the material on record by summarily holding that the liability of the insurance company was limited to Rs. 15,000/- per passenger. Such finding is neither correct nor based on the record. This is also up-set, overruled and reversed. It is held that there was no limit to the liability of insurance company and that its liability qua the passengers travelling in the bus was unlimited, therefore, it was liable to indemnify the insured for the award that was obtained against him in its entirety.
11. In view of the reasons stated above, the appeals are allowed. The judgments under appeal are set aside to the following extent :--
(1) Respondent Satish Kumar Handa is held owner of the vehicle in all respects as on the date of the accident.
2. Respondent Jugal Kishore is not held to be the owner of the vehicle as on the date of
accident.
3. Respondent Satish Kumar Handa being the owner of the vehicle as on the date of the accident was liable to pay the compensation.
4. There being a legitimate, lawful and valid policy of insurance in existence between respondent-National Insurance Company and respondent Satish Kumar Handa as on the date of the accident and the liability of the respondent National Insurance Co. arising out of such insurance policy being unlimited, the insurance company is bound, liable and responsible to indemnify the insured for the award received and obtained against him.
5. Consequently therefore, the entire amount of the award as determined by the Tribunal shall be paid by the respondentNational Insurance Company and not by respondent Jugal Kishore as held and directed by the Tribunal.