Rajasthan High Court - Jaipur
Oriental Fire And General Insurance Co. ... vs Champalal And Ors. on 27 February, 1989
Equivalent citations: II(1989)ACC511
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT A.K. Mathur, J.
1. This appeal it directed against the judgment and award given by the Judge, Motor Accidents claims Tribunal, Jodhpur dated 26-2-1983.
2. The brief facts giving rise to this appeal are that an accident took place on 3-2-1976 between Car bearing No. RSQ 8234 and bus No. 3375 at 3.30 P.M. near Nehru Park, Jodbpur. As a result of this accident the car was damaged and the claimants Charnpa lal, owner of the car and Ram Kishore, driver of the car were injured. Therefore, a claim was filed by both the claimants before the Motor Accidents claims Tribunal, Jodhpur (hereinafter called 'the Tribunal') for damages to the car as well as for personal injuries and mental agony.
3. The claim was contested by the non-claimants namely, owner of the bus Vijay Kishan, driver of the vehicle Govind Ram. The claim was also contested by M/s. Nehru Motors Transport Cooperative Society Ltd. Siwanchi Gate, Jodhpur (hereinafter referred to as the 'Society') as well as the Oriental Fire and General Insurance Co. Ltd. (for short 'Insurance Co.') with whom the bus was insured.
4. The Tribunal, after hearing both the parties and recording the necessary evidence, awarded a sum of Rs. 3,972/- as compilation to the claimants. Aggrieved against this award of compensation, the Insurance Co. has preferred the present appeal.
5. Mr. Arora, learned Counsel for the appellant has urged that since the owner of the vehicle was M/s. Nehru Motors Transport Cooperative Society Ltd. and the bus was insured with the Insurance Company but according to the finding of the Tribunal that at the relevant time i.e at, the time of the accident the owner of the vehicle was not the Society, but it was Vijay Kishan, therefore, the Insurance Co. is not liable to indemnify. Mr. Arora further submitted that since no award has been passed against the Society, therefore, the Insurance Co. is not liable to indemnify because the liability of the Insurance Co. is co-extensive with the owner.
6. Learned Counsel for the appellant further submitted that the driver of the vehicle i.e. Govind Ram was not in the employment of the Society and therefore, he was not authorised to ply the vehicle and as such it is in violation of the conditions contained in the terms of the policy.
7. As against this, Mr. Bhansali, learned Counsel for the respondent- claimants has submitted that no such objection was raised in the written-statement filed by the Insurance Co. Therefore, this plea is not open for the Insurance Co. to raise in the present appeal as the same is not covered under any other provisions of Section 96(2) of the Motor Vehicles Act. Secondly, learned Counsel also submitted that no evidence has been led by the Insurance Co. that the driver Govind Ram was not in the employment of the Society. Learned Counsel submitted that the question of quantum cannot be raised in the appeal.
8. I have heard both the learned Counsel and have also perused the record.
9. It is true that the bus was sold out by the Society to Vijay Kishan on 25-7-1974. The insurance policy was valid from 11-11-1975 to 10-11-1975. Since these facts were in the knowledge of the Insurance Co. and no objection was raised by the Insurance Co. of the so-called transfer and their liability thereby, this objection of Mr. Arora at this stage that since no decree has been passed against the Society, the Insurance Co. cannot be permitted to raise this objection now. When the written-statement was filed by the Society on 19-12-1977, they have taken a specific plea in their written-statement that the vehicle has been sold out by them on 25-7-1974 to Vijay Kishan and Vijay Kishan is their power of attorney holder. Still the Insurance Co. did not become wiser to raise the objection of the transfer and thereby canceling the policy. It shows that the Insurance Co. after filing of the written-statement and knowing fully well about the transfer of the vehicle acquiesced and accepted Vijay Kishan as the new owner. Therefore, now to raise this objection that the vehicle has been transferred by the Society to Vijay Kishan and since no decree has been passed against the Society, the Insurance Co. is not liable to idemnify cannot be sustained. By their own conduct the Insurance Co. has accepted Vijay Kishan as the owner of the bus and extended the policy from 11-11-1975 knowing fully well about the transfer of ownership still they did not object to it. Therefore, I am not impressed by the argument of the learned Counsel and the same cannot be sustained.
10. Mr. Arora, learned Counsel for the appellant has invited my attention to Oriental Fire and General Ins. Co. Ltd. v. Aminbhai Pirmohomad Master and Ors. 1987 (1) ACJ 87. In this case an objection was raised that no award can be passed against the Insurance Co. in the absence of owner and this plea was upheld by the Gujarat High Court. It is true that the liability of the owner and the Insurance Co. is co-extensive and if the owner is not made a party then the Insurance Co. cannot be made liable. But this case is of no avail so far as the present case is concerned.
11. Likewise, learned Counsel has also invited my attention to Paulus alias Balan v. Natarajan and Ors. 1987 ACJ 853. In this case, the owner transferred the vehicle in violation of the control order and that illegal transfer was not recognized. This is not the case here.
12. Learned Counsel has also invited my attention to Darshani Devi and Ors. v. Sheo Ram and Ors. 1987 ACJ 931, and specifically draw my attention to Para 38. In that case, the death of one Munish Kumar who was himself the owner was caused in the accident, therefore, it was held that only when Munish Kumar was required to receive compensation the question of indemnifying others by the Insurance Co. can arise. That is not the case here. This plea regarding transfer stands defeated on account of acquiescence of the Insurance Co. and cannot be permitted to be raised at this stage. Therefore, this objection of Mr. Arora is overruled.
13. Now coming to the second question regarding driver Govind Ram is not being in the employment of the Society is concerned, suffice it to say that no evidence whatsoever has been led by the parties to show that he was not in the employment of the Society. Since the first objection has failed and it is accepted that Vijay Kishan is the owner who has stepped into the shoes of the Society and the Insurance Co. has not objected to it, therefore, Vijay Kishan shall be deemed to be owner of the vehicle. Since the driver Govind Ram was in the employment of Vijay Kishan, therefore, the Insurance Co. is liable and the plea that Govind Ram was not in the employment of the Society cannot be sustained.
14. So far as the question of quantum of compensation is concerned, this plea is not open to the Insurance Co. as such question of quantum cannot be agitated in this appeal.
15. In the result, there is no merit in this appeal and the same is dismissed. No orders as to costs.