Himachal Pradesh High Court
Kanta Devi And Anr. vs Dayal Singh And Ors. on 26 October, 1990
Equivalent citations: I(1991)ACC415, 1991ACJ336
JUDGMENT Devinder Gupta, J.
1. Claimant-appellants have preferred this appeal against the award made on October 25, 1983 by Accidents Claims Tribunal, Kangra at Dharamshala, making an award of Rs. 10,000/- in their favour against respondent Nos. 3 and 4 along with interest at the rate of 6 per cent per annum from the date of filing of petition till date of realization. Respondent No. 3, insurance company, has preferred cross-objections under Order 41, Rule 22, Civil Procedure Code challenging the award in so far as it has held the insurance company liable to satisfy the award.
2. On July 30,1979, Shashi Kumar son of claimant-appellants was on his way from Khikli Rajol to his village Tremlu in Tehsil Kangra on his bicycle (on Pathankot-Mandi Road), when truck No. PUG 9487, hereinafter referred to as 'the vehicle', struck him at Rajol and as a result of this impact, Shashi Kumar received serious injuries on vital parts of his body due to which he succumbed to his injuries within 22 hours in Civil Hospital, Dharamshala. The father and mother of the deceased filed claim petition claiming a sum of Rs. 1,50,000/- as compensation attributing rash and negligent driving of the vehicle by its driver Budhi Singh, respondent No. 2, alleging that the driver took his vehicle towards wrong side and due to his rash and negligent act, the accident took place. Initially, the claim petition was preferred only against respondent Nos. 1 and 2, being the owner and driver of the vehicle, respectively, but subsequently, amendment of the petition was sought and respondent Nos. 3 and 4 were also impleaded as parties. Respondent No. 4 being the owner of the vehicle prior to its sale by it in favour of respondent No. 1 and respondent No. 3 being insurance company with whom the vehicle had been got insured by respondent No. 4. It was alleged that the deceased was an intelligent and promising youngman, who had been selected by the Industrial Technical Institute, Chamba, for technical training after the deceased had completed his matriculation examination. The deceased was to get stipend during the period of his training and thereafter was to start earning to enable him to support his parents (claimants). All hopes of the claimants were shattered by the untimely death of deceased. It was further alleged that the deceased was the only son of the claimants, the other children being daughters.
3. The claim petition was resisted by the respondents. Respondent Nos. 3 and 4 took up similar stand. It was stated that the vehicle was owned by respondent No. 4 till May 18, 1979. Vehicle was sold for valid and lawful consideration on May 19, 1979 in favour of respondent No. 1 and due intimation was sent to the Registering Authority in this behalf. Vehicle had been got insured by respondent No. 4 with respondent No. 3 for the period from September 7,1978 to September 6,1979. As the vehicle stood in the name of respondent No. 1 on the date of accident, therefore, the liability, if any, to compensate the claimants was that of respondent Nos. 1 and 2 and not of respondent Nos. 3 and 4 as neither respondent No. 4 had insurable interest, nor respondent No. 3 was liable under the terms of the policy to compensate the third party after the vehicle had been transferred.
4. Respondent Nos. 1 and 2 also contested the claim petition denying rash and negligent act on the part of respondent No. 2.
5. During the course of hearing before the learned Claims Tribunal, no evidence was adduced by the respondents in so far as actual incident is concerned. The Tribunal drew adverse inference as even Budhi Singh driver had failed to step in the witness-box and accordingly a finding was returned that the accident took place due to the acts of negligence on the part of Budhi Singh driver. It was held that the truck had not only left its own side but had gone to the extreme right side and stopped near the ditch by dragging the deceased for a considerable distance. The Tribunal made an award in the sum of Rs. 10,000/- in favour of the claimants along with interest at the rate of 6 per cent per annum. Liability to pay this amount was fixed upon respondent Nos. 3 and 4 only. The Tribunal held that even if it be assumed that vehicle had been transferred by respondent No. 4 in favour of respondent No. 1, yet, until the transfer was effected in the registration certificate, the transferor as well as the insurance company were liable to pay the compensation.
6. The claimants preferred the appeal and claimed enhancement in the amount of compensation on the ground that the amount awarded is not just and adequate amount of compensation. Insurance company challenged the findings recorded by the Claims Tribunal holding it to be liable to compensate the claimants.
7. I have heard the learned counsel for the claimant-appellants, insurance company and respondent Nos. 1 and 4. None has appeared on behalf of respondent No. 2. I have also gone through the records of the case.
8. Findings recorded by the Claims Tribunal holding the accident to have occurred due to rash and negligent driving of the vehicle by respondent No. 2 have not been challenged. The only challenge which has been made on behalf of the insurance company is that as on the date of accident, vehicle already stood transferred in favour of respondent No. 1 and respondent No. 4 having no insurable interest in the vehicle, award against insurance company is not sustainable. On behalf of the claimant-appellants, the challenge to the award is for further enhancement of the amount of compensation besides fastening the liability upon the insurance company on the ground that it was not open for the insurance company to plead such a defence in view of the provisions of the Motor Vehicles Act. The findings recorded by the Tribunal in so far as receipt of consideration by respondent No. 4 and delivery of possession of vehicle in favour of respondent No. 1 by way of sale have also not been challenged. However, it has been urged that it is not a complete sale as the conditional requirement of getting recorded the transfer with the Registering Authority had not been complied with.
9. One of the questions which arises for determination by this court is "when a registered owner of a motor vehicle, covered by an insurance policy, transfers the vehicle to another but does not secure certificate of transfer of the insurance policy covering the vehicle to the transferee of the vehicle, whether the insurance company is liable to satisfy the liability arising out of an accident met with by the vehicle after the transfer of ownership of the vehicle but during the period for which the insurance policy had been issued.
10. The relevant facts which have already been noticed above and are not disputed are that the vehicle stood transferred by respondent No. 4 in favour of respondent No. 1 on 19.5.1979, the insurance was for the period from 7.9.1978 to 6.9.1979 and the accident occurred on July 30, 1979.
11. The finding of the Claims Tribunal that unless the factum of transfer is given effect to in the registration certificate, there is no complete transfer of the vehicle for which it took support of two judgments in J.C. Chennarayudu v. N. Lakshmiamma 1980 ACJ 189 (AP) and Mohammad Ramzan v. Sharifanbai 1982 ACJ 445 (MP), is not sustainable in law. Provisions of Section 31 of the Motor Vehicles Act, 1939 (as it stood in 1956), hereinafter referred to as 'the 1939 Act', which now corresponds to Section 50 of the Motor Vehicles Act, 1988, have been interpreted by their Lordships of Supreme Court in Parma Lal v. Shri Chand Mal 1980 ACJ 233 (SC), wherein it has been held that in the transfer of a vehicle, if the owner sold the vehicle to the transferee and the registration papers and sale memo have been handed over to the transferee but the registration continued to remain in the name of the owner because the transferee failed to move the Registering Authority for the transfer, the sale will not be ineffective and the transferee cannot claim refund of the purchase money or damages from the owner. Their Lordships felt that the sale of a motor vehicle is governed by the Sale of Goods Act. It was further observed that Section 31 itself starts with the clause that within 30 days of the transfer of ownership of any motor vehicle registered under this Chapter, the transferee shall report transfer to the Registering Authority within whose jurisdiction he resides and shall forward the certificate of registration to that Registering Authority with the prescribed fee in order that particulars of the transfer of ownership may be entered therein. It is, therefore, clear that for making a transfer complete, it is not necessary that the name of the transferee should be recorded with the Registering Authority.
12. On behalf of the claimant-appellants, reliance has been placed upon Full Bench judgment of Andhra Pradesh High Court reported in Madineni Kondaiah v. Yaseen Fatima 1986 ACJ 1 (AP), in support of the plea that when the policy of insurance obtained by the original owner of the vehicle is composite one covering the risks for his person, property and the third party claim, on passing of title, the transferee cannot enforce his claim in respect of any loss or damage to the person and the vehicle unless there is a novation, but in so far as the third party risk is concerned, the proprietary interest in the vehicle is not necessary and the principal liability continues till the transferor discharges the statutory obligation under Section 29-A of 1939 Act (now Section 48 of 1988 Act) and Section 31 (Section 50 of 1988 Act) read with Section 94 (Section 146 of 1988 Act) and, therefore, till the transferor 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 to the third party risks. It was further held that it must be deemed that the transferor allowed the purchaser to use the vehicle in public place in the said transitional period and accordingly till the compliance of the provisions of the Act, the liability of the transferor subsists and the policy is in operation, so far as it relates to the third party risks.
13. A contract of insurance is between the insurer and the insured, the subject-matter is the vehicle specified in it and it is the risk arising out of its use that the insurer undertakes to compensate against. Where such a contract provides for indemnity to the assured against third party risks, the third party who is a stranger to the contract, cannot enforce it against the insurer. Neither the general principles of law relating to contracts, nor the common law gives third party a cause of action against the insurer. If a third party risk arises under the policy it is entirely a matter between the insurer and the insured governed by the terms of the policy. Section % (1) of the Act makes it obligatory on the part of the insurer to meet or satisfy an award made by the Accidents Claims Tribunal against the person insured in respect of such third party risks. Thus, for the purpose of Section 96 (1) the insurer could be deemed to be a judgment-debtor. Under Section 96 (2) of the Act the insurer can be made a party, so that he may defend the action by the third party against the insured which also enumerates the grounds, the insurer may take up for defending himself. The scheme of the provision is that no insurer who had notice under Section 96 (2) is entitled to avoid liability to the party otherwise than in the manner provided for in sub- section (2) thereof. Thus, after the insured has parted with his vehicle, he has no longer any insurable interest to which the policy in his favour can relate and continue to have force affecting thereby the basis of contract of insurance as also the specified vehicle to which the indemnity relates, as is clear from the details required to be set out in the policy. It is with reference to those details and the history of vehicle and its owner, including claims or no claims in the past that premium payable on the insurance is determined and the contract is formed. Thus, in the absence of express stipulation in the policy to the contrary, the moment the insured parts with his vehicle, the policy relating to it lapses, inasmuch as the vehicle is the subject-matter of the very foundation of contract of insurance. Neither Section 96 (1) nor Section 96 (2) of the Act results in a policy of motor insurance being continued to operate and not lapse, notwithstanding the fact that the insured during the currency of the policy has parted with the ownership of the vehicle to which the insurance relates. Section 96 (1) itself proceeds on the basis that there is a 'subsisting policy' and the words to the effect 'being a liability covered by the terms of policy' are of particular significance. It is no doubt true that where insurer has been given notice of action, the grounds of his defence in the action are limited to those stated in under Section 96 (2) and it is not open to the insurer to avoid liability under the policy but the continued ownership of vehicle with the insured is basic to the subsistence of policy and once the subject-matter of policy is gone, as when parted by the insured, the policy automatically lapses and there is nothing for the insurer to avoid it. The policy of insurance is with respect to the insured person and not the vehicle and the liability of insurer ceases on transfer of ownership of vehicle.
14. The third party liability of an insurance company ends on the transfer of vehicle by the insured. This view has been followed by various High Courts in South India Insurance Co. Ltd. v. Puma Chandra Misra 1973 ACJ 46 (Orissa); Gulab Bai Damodar Tapse v. Peter K. Sunder 1975 ACJ 100 (Bombay); Indian Mutual Insurance Co. now merged in the United India Fire and General Insurance Co. Ltd. v. Vijaya Ramulu 1978 ACJ 366 (AP); Labh Singh v. Sunehri Devi 1988 ACJ 170 (P&H) and National Insurance Co. Ltd. v. Mallikarjun 1990 ACJ 688 (Karnataka).
15. In view of the aforementioned proposition of law, the insurance company cannot be held liable to satisfy the liability arising out of an accident met with by the vehicle after the transfer of ownership, but during the period for which the insurance policy is issued. The insurer is entitled to challenge the liability against the third party risks on the plea that the insured had sold the vehicle covered by the insurance policy before the date of accident.
16. In so far as the quantum of compensation payable to the claimants is concerned, the Tribunal after making reference to a Division Bench judgment of Gujarat High Court in Mangaldas Mohanlal Patel v. Union of India 1982 ACJ 426 (Gujarat), failed to correctly determine the amount of compensation and did not apply any principle and proceeded to make a lump sum award in the sum of Rs. 10,000/-. The quantum of compensation, as such, will have to be fixed on the basis of settled principles of law. The deceased as on the date of accident was of the age of 18 years 4 months. After having completed matriculation, he had been selected for Industrial Course in Training Institute, Chamba, whereafter on obtaining two years' training, the deceased would have secured a job. This training even could have helped him in starting his own profession as a Technician. The father of the deceased was of the age of 51 years and his mother was of the age of 48 years. After getting employment or entering some profession, the deceased would have definitely started contributing towards the family a periodic sum which would have enabled his parents to lead a comfortable life, he being the only son. There is no evidence as to the likely contribution which the deceased was to make during the lifetime of his parents. Keeping in view the minimum wages which a Government servant these days gets, it can safely be assumed that the deceased would have made a contribution of atleast Rs. 250/-per month and the claimants would have expected the deceased to continue making this contribution during their lifetime. The deceased would have started earning after two years of completion of his training. Taking into consideration these factors, multiplier of 15 is a reasonable one which should be applied in the case. Taking monthly contribution of Rs. 250/- and applying multiplier of 15 and adding a sum of Rs. 3,000/- as the conventional figure, the claimants are entitled to a sum of Rs. 48,000/- for the loss sustained by them. Applying the principles laid down in Ranchhodbhai Somabhai deceased by his heirs Somabhai Vajabhai v. Babubhai Bhailalbhai 1982 ACJ (Supp) 548 (Gujarat) and Andhra Pradesh State Road Transport Corporation v. G. Ramanaiah 1988 ACJ 223 (AP), this amount is apportioned in the ratio of 1:2 between the father and mother.
17. In view of the above, the appeal as well as cross-objections are allowed. The award made by the Accidents Claims Tribunal is modified. Claimant-appellants are held entitled to a sum of Rs. 48,000/- against respondent Nos. 1 and 2 jointly and severally which is to be shared by the claimant-appellants in the ratio of 2:1, that is, Rs. 32,000/-by claimant-appellant No. 1 and Rs. 16,000/-by claimant-appellant No. 2. The claimants shall also be entitled to interest at the rate of 10 per cent per annum from the date of petition till the date of realization. Respondent Nos. 3 and 4 shall be entitled to the refund of amount, if any, deposited by them.
Parties are left to bear their own costs.