New India Assurance Co Ltd. Vs. Savitri and ors. - Court Judgment

Excerpt:
- - but even assuming that the photocopy is genuine, it seems that for some reason best known to the two brothers triloksingh and manjeet singh, only a paper transaction of substitution of manjeet singh's name in place of triloksingh took place in the registration certificate.orderusha shiikla, j.1. respondent savitri bai was a young unmarried girl aged about 18 years in january, 1991. respondent bhaggu was aged about 42 years. they were both labourers. on 30th january, 1991 both these respondents along with some other labourers were returning on truck no. mpn 5996 after loading stones in this truck at river patha. this truck overturned on way to ghoda dongri causing injuries to both respondents savitri bai and bhaggu. both the respondents filed separate claim petitions for compensation for injuries sustained by them in this accident. these petitions were registered as claim case nos. 20 and 21 of 1992 and were disposed of by a common award passed on 28.4.1994 by first additional motor accident claims tribunal, betul. this award has been challenged by the insurance company in these misc. appeal nos. 886/1994 and 885/1994 which are being disposed of by this common order.2. compensation was claimed by the two injured persons on the ground that the accident had occurred on account of rash and negligent driving of this truck. savitri bai had sustained serious injuries on her right leg fracturing both the tibia and fibula bones. the injuries suffered by bhaggu were also very grave. his hip bone was fractured on the left side. both the claimants suffered permanent disability and deformity in their bodies. apart from their own testimony about their injuries, they had adduced medical evidence to prove their disability. the tribunal also recorded its own observations regarding the physically disabled condition of both these claimants. deep scars of the injuries were present on their legs when they were examined two-and-a-half years after the accident.3. the tribunal found that the accident occurred due to rash and negligent driving of the truck resulting in serious injuries to the claimants leading to permanent disability as deposed by dr. r.c. chakotia (p.w. 4). considering all the evidence and circumstances of the case, the learned tribunal awarded rs. 49,000/- in all as compensation to injured savitri bai while the compensation awarded to claimant bhaggu was rs. 34,000/- only. the tribunal further held that the truck in question was transferred by respondent triloksingh to his brother respondent manjit singh on 19.12.1989, and the name of the transferee was recorded in the registration certificate also. the tribunal recorded a finding that the insurance company cannot avoid its liability under the policy, that the compensation was payable by the insurer, which can eventually recover the amount from the registered owner in a separate proceeding.4. in these appeals the insurance company has challenged the award contending that the compensation awarded was excessive and arbitrary, and also that the liability for payment could not be fastened on the insurance company in view of the fact that the vehicle had already been transferred by insured triloksingh on 19.12.1989, prior to the accident. triloksingh could not, therefore, be liable for the wrongful acts of the driver and the question of the insurer's liability to indemnify the insured under section 147(5) of the 1988 act would not, therefore, arise. and since there was no privity of contract between the subsequent purchaser and the insurance company the letter could not be held liable for any compensation.5. the claimants/victims did not appear before this court. other parties were heard. it is the settled legal position that the insurance company has no locus standi to challenge the quantum of compensation unless permitted by the tribunal to contest the claim on all grounds, as provided under section 170 of the motor vehicles act of 1988. no such permission was sought or given in these cases. even otherwise looking to the seriousness of the injuries suffered by the claimants and the resultant disability and deformity affecting their earning capacity and enjoyment of life for ever the amount awarded cannot by any standards be said to be excessive. the only question for determination in these appeals is whether the insurance company would be liable under the policy which was admittedly taken by respondent triloksingh after the transfer of the vehicle in favour of respondent manjeet singh on 19.12.1989.6. respondent triloksingh appeared as a witness before the tribunal and deposed that he had transferred this vehicle to his younger brother manjeet singh on 19.12.1989. the name of manjeet singh was entered in the certificate of registration. he deposed that intimation was also sent to the insurance company about this transfer. for this he filed the postal certificate, which is marked as ex. dl, and also a carbon copy of the notice of transfer which is marked as ex. d2. this notice of transfer was patently a false document. the vehicle was allegedly transferred on 19.12.1989. this notice ex. d2 is dated 1.1.1990, and it refers to the insurance policy for the period 31.3.1990 to 30.3.1991. a copy of the policy is available on the record of claim case no. 21/1992 and the number of this insurance policy is the same as was mentioned in the said notice ex. d2 dated 1.1.1990. it does not stand to reason that the information sent to the insurance company regarding transfer of vehicle on 19.12.1989 would refer to the insurance policy which was to be effected on a future date more than 3 months later. on the date of alleged intimation ex. d2 this policy dated 31.3.1990 was not in force and was not in existence at all. in normal course the insured transferror would mention the existing policy which was in force on the date of transfer, i.e., 19.12.1989, and not some policy which was to come into existence much later on 31.3.1990. the letter ex. d2 dated 1.1.1990, therefore, appears to be a concoction.7. in this background we have no hesitation in saying that respondents triloksingh and manjeet singh are not persons of credence. had triloksingh really transferred the vehicle to manjeet singh in december, 1989, the insurance policy taken out in march, 1990 would have been in the name of manjeet singh and not triloksingh. a photocopy of the certificate of registration showing that the vehicle was transferred to manjeet singh on 19.12.1989 was filed in claim case no. 21/1992. neither the original registration certificate nor the original policy was produced at the trial. but even assuming that the photocopy is genuine, it seems that for some reason best known to the two brothers triloksingh and manjeet singh, only a paper transaction of substitution of manjeet singh's name in place of triloksingh took place in the registration certificate. the real owner continued to be triloksingh. there can be no other explanation for the subsequent insurance policy of this vehicle being taken out in the name of triloksingh.8. the tribunal has referred to harcharansingh's case (1994) jlj197, to hold that the insurance company would be liable for compensation as against third party claim notwithstanding the sale of the vehicle by the registered owner, and that it would be open to the insurance company to proceed against the registered owner for re-imbursement of the compensation amount which was required to be paid under the cover of the policy to the third party. but the tribunal overlooked the fact that in harcharansingh's case (supra), the insurance policy stood in the name of the registered owner, and the sale of the vehicle was effected during the period of cover. it was under these circumstances that the insurance company was held liable as against the third party claim holding that non-intimation of transfer was not one of the defences available to the insurer under section 96(2) of the 1939 act. but such is not the case before us. in the present case, the policy does not stand in the name of the registered owner, nor was the alleged sale of the vehicle made during the period of cover of this policy which was not in force at the time of the accident. the question of transfer of this particular insurance policy in favour of the purchaser of the vehicle, as provided under section 157 of the motor vehicles act of 1988, does not arise in this case for the very reason that the alleged transfer of the vehicle was not made after the issuance of the certificate of insurance. the alleged sale was made much earlier. the case of harcharansingh cited supra is, therefore, distinguishable on facts.9. as observed earlier, we find that the sale was only a paper transaction. the real owner continues to be triloksingh who got the vehicle insured even after the alleged sale. in the circumstances both the real and ostensible owner would be liable for compensation to the claimants. and the insurer cannot avoid its liability under the plea of transfer of vehicle.10. we, therefore, find no force in the contentions raised by the appellant. these appeals are, therefore, dismissed.

Judgment:
ORDER

Usha Shiikla, J.

1. Respondent Savitri Bai was a young unmarried girl aged about 18 years in January, 1991. Respondent Bhaggu was aged about 42 years. They were both labourers. On 30th January, 1991 both these respondents along with some other labourers were returning on truck No. MPN 5996 after loading stones in this truck at river Patha. This truck overturned on way to Ghoda Dongri causing injuries to both respondents Savitri Bai and Bhaggu. Both the respondents filed separate claim petitions for compensation for injuries sustained by them in this accident. These petitions were registered as Claim Case Nos. 20 and 21 of 1992 and were disposed of by a common award passed on 28.4.1994 by First Additional Motor Accident Claims Tribunal, Betul. This award has been challenged by the Insurance Company in these Misc. Appeal Nos. 886/1994 and 885/1994 which are being disposed of by this common order.

2. Compensation was claimed by the two injured persons on the ground that the accident had occurred on account of rash and negligent driving of this truck. Savitri Bai had sustained serious injuries on her right leg fracturing both the tibia and fibula bones. The injuries suffered by Bhaggu were also very grave. His hip bone was fractured on the left side. Both the claimants suffered permanent disability and deformity in their bodies. Apart from their own testimony about their injuries, they had adduced medical evidence to prove their disability. The Tribunal also recorded its own observations regarding the physically disabled condition of both these claimants. Deep scars of the injuries were present on their legs when they were examined two-and-a-half years after the accident.

3. The Tribunal found that the accident occurred due to rash and negligent driving of the truck resulting in serious injuries to the claimants leading to permanent disability as deposed by Dr. R.C. Chakotia (P.W. 4). Considering all the evidence and circumstances of the case, the learned Tribunal awarded Rs. 49,000/- in all as compensation to injured Savitri Bai while the compensation awarded to claimant Bhaggu was Rs. 34,000/- only. The Tribunal further held that the truck in question was transferred by respondent Triloksingh to his brother respondent Manjit Singh on 19.12.1989, and the name of the transferee was recorded in the registration certificate also. The Tribunal recorded a finding that the Insurance Company cannot avoid its liability under the policy, that the compensation was payable by the insurer, which can eventually recover the amount from the registered owner in a separate proceeding.

4. In these appeals the Insurance Company has challenged the award contending that the compensation awarded was excessive and arbitrary, and also that the liability for payment could not be fastened on the Insurance Company in view of the fact that the vehicle had already been transferred by insured Triloksingh on 19.12.1989, prior to the accident. Triloksingh could not, therefore, be liable for the wrongful acts of the driver and the question of the insurer's liability to indemnify the insured under Section 147(5) of the 1988 Act would not, therefore, arise. And since there was no privity of contract between the subsequent purchaser and the Insurance Company the letter could not be held liable for any compensation.

5. The claimants/victims did not appear before this Court. Other parties were heard. It is the settled legal position that the Insurance Company has no locus standi to challenge the quantum of compensation unless permitted by the Tribunal to contest the claim on all grounds, as provided under Section 170 of the Motor Vehicles Act of 1988. No such permission was sought or given in these cases. Even otherwise looking to the seriousness of the injuries suffered by the claimants and the resultant disability and deformity affecting their earning capacity and enjoyment of life for ever the amount awarded cannot by any standards be said to be excessive. The only question for determination in these appeals is whether the Insurance Company would be liable under the policy which was admittedly taken by respondent Triloksingh after the transfer of the vehicle in favour of respondent Manjeet Singh on 19.12.1989.

6. Respondent Triloksingh appeared as a witness before the Tribunal and deposed that he had transferred this vehicle to his younger brother Manjeet Singh on 19.12.1989. The name of Manjeet Singh was entered in the certificate of registration. He deposed that intimation was also sent to the Insurance Company about this transfer. For this he filed the postal certificate, which is marked as Ex. Dl, and also a carbon copy of the notice of transfer which is marked as Ex. D2. This notice of transfer was patently a false document. The vehicle was allegedly transferred on 19.12.1989. This notice Ex. D2 is dated 1.1.1990, and it refers to the Insurance Policy for the period 31.3.1990 to 30.3.1991. A copy of the policy is available on the record of Claim Case No. 21/1992 and the number of this insurance policy is the same as was mentioned in the said notice Ex. D2 dated 1.1.1990. It does not stand to reason that the information sent to the Insurance Company regarding transfer of vehicle on 19.12.1989 would refer to the insurance policy which was to be effected on a future date more than 3 months later. On the date of alleged intimation Ex. D2 this policy dated 31.3.1990 was not in force and was not in existence at all. In normal course the insured transferror would mention the existing policy which was in force on the date of transfer, i.e., 19.12.1989, and not some policy which was to come into existence much later on 31.3.1990. The letter Ex. D2 dated 1.1.1990, therefore, appears to be a concoction.

7. In this background we have no hesitation in saying that respondents Triloksingh and Manjeet Singh are not persons of credence. Had Triloksingh really transferred the vehicle to Manjeet Singh in December, 1989, the insurance policy taken out in March, 1990 would have been in the name of Manjeet Singh and not Triloksingh. A photocopy of the certificate of registration showing that the vehicle was transferred to Manjeet Singh on 19.12.1989 was filed in Claim Case No. 21/1992. Neither the original registration certificate nor the original policy was produced at the trial. But even assuming that the photocopy is genuine, it seems that for some reason best known to the two brothers Triloksingh and Manjeet Singh, only a paper transaction of substitution of Manjeet Singh's name in place of Triloksingh took place in the registration certificate. The real owner continued to be Triloksingh. There can be no other explanation for the subsequent insurance policy of this vehicle being taken out in the name of Triloksingh.

8. The Tribunal has referred to Harcharansingh's case (1994) JLJ197, to hold that the Insurance Company would be liable for compensation as against third party claim notwithstanding the sale of the vehicle by the registered owner, and that it would be open to the Insurance Company to proceed against the registered owner for re-imbursement of the compensation amount which was required to be paid under the cover of the policy to the third party. But the Tribunal overlooked the fact that in Harcharansingh's case (supra), the insurance policy stood in the name of the registered owner, and the sale of the vehicle was effected during the period of cover. It was under these circumstances that the Insurance Company was held liable as against the third party claim holding that non-intimation of transfer was not one of the defences available to the insurer under Section 96(2) of the 1939 Act. But such is not the case before us. In the present case, the policy does not stand in the name of the registered owner, nor was the alleged sale of the vehicle made during the period of cover of this policy which was not in force at the time of the accident. The question of transfer of this particular insurance policy in favour of the purchaser of the vehicle, as provided under Section 157 of the Motor Vehicles Act of 1988, does not arise in this case for the very reason that the alleged transfer of the vehicle was not made after the issuance of the certificate of insurance. The alleged sale was made much earlier. The case of Harcharansingh cited supra is, therefore, distinguishable on facts.

9. As observed earlier, we find that the sale was only a paper transaction. The real owner continues to be Triloksingh who got the vehicle insured even after the alleged sale. In the circumstances both the real and ostensible owner would be liable for compensation to the claimants. And the insurer cannot avoid its liability under the plea of transfer of vehicle.

10. We, therefore, find no force in the contentions raised by the appellant. These appeals are, therefore, dismissed.