Himachal Pradesh High Court
Rajesh Kumar Dhiman vs Of on 29 April, 2016
Author: Chief Justice
Bench: Chief Justice
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 336 of 2010
.
Decided on: 29.04.2016
Rajesh Kumar Dhiman ...Appellant.
Versus
of
Krishan Dutt Verma and others ...Respondents.
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
For the appellant: Mr. Dibender Ghosh, Advocate.
For the respondents: Mr. B.C. Verma, Advocate, for
respondents No. 1 and 2.
Mr. Deepak Bhasin, Advocate, for
respondent No. 3.
Nemo for respondent No. 4.
Mansoor Ahmad Mir, Chief Justice. (Oral)
Challenge in this appeal is to judgment and award, dated 31st May, 2010, made by the Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, H.P. (for short "the ::: Downloaded on - 15/04/2017 20:12:56 :::HCHP 2 Tribunal") in M.A.C. Petition No. 76 of 2006, titled as Sh.
Krishan Dutt Verma and another versus Sh. Sainj Ram and .
others, whereby compensation to the tune of ₹ 5,03,000/ with interest @ 7.5% per annum from the date of the petition till its realization came to be awarded in favour of the claimants and of the ownerinsured and the driver of the offending vehicle were saddled with liability (for short "the impugned award").
2. rt The claimants, the driver of the offending vehicle and the insurer have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.
3. The appellantownerinsured has questioned the impugned award on the grounds taken in the memo of the appeal.
4. The only question to be determined in this appeal is - whether the Tribunal has rightly discharged the insurer from its liability and directed the appellantownerinsured to satisfy the award? The answer is in the negative for the following reasons:
::: Downloaded on - 15/04/2017 20:12:56 :::HCHP 35. Admittedly, the offending vehicle was transferred by the registered owner but the insurance policy was still in .
his name at the relevant point of time.
6. The only ground taken by the insurer is that even after the expiry of the insurance policy, the new insurance of policy was also renewed in favour of the registered owner, is not correct for the following reasons:
7. rt The offending vehicle was not transferred at the time of renewal of the insurance policy, it was still registered in the name of the previous owner/registered owner. Thus, the question of renewal of the insurance policy in the name of the new owner of the offending vehicle does not arise.
8. This Court in the case titled as Ashok Kumar and another versus Smt. Kamla Devi and others, reported in 2014 (3) Shim. LC 1302, held that transfer of vehicle cannot be a ground to defeat the rights of the third party. It is apt to reproduce paras 16 to 23 of the judgment herein:
"16. Admittedly, on the date of accident, i.e. 05.06.2000, the offending vehicle was not transferred in the name of ::: Downloaded on - 15/04/2017 20:12:56 :::HCHP 4 appellantAshok Kumar. It was transferred in his name w.e.f. 17.06.2000. Thereafter, the appellantrespondent No. 1 Ashok .
Kumar was supposed to give information regarding transfer of the vehicle to the insurer Insurance Company. The vehicle was not transferred on the date of accident, thus the question of informing the insurer about the transfer of the vehicle does not of arise, at all. If the offending vehicle would have been transferred on the date of accident, i.e. 5th June, 2000, that can not be a ground to defeat the rights of the third party. As per the mandate of rt the Section , the insurance policy shall be deemed to have been issued in favour of the transferee.
17. My this view is fortified by the Apex Court Judgment in case titled as G. Govindan versus New India Assurance Company Ltd. and others, 1999 AIR(SC) 1398. It is apt to reproduce paras10, 13 & 15 of the aforesaid judgment herein:
"10. This Court in the said judgment held that the provisions under the new Act and the old Act are substantially the same in relation to liability in regard to third party. This Court also recognised the view taken in the separate judgment in Kondaiah's case that the transfereeinsured could not be said to be a third party qua the vehicle in question. In other words, a victim or the legal representatives of the victim cannot be denied the compensation by the insurer on the ground that ::: Downloaded on - 15/04/2017 20:12:56 :::HCHP 5 the policy was not transferred in the name of the transferee.
11. ..................
.
12. .................
13. In our opinion that both under the old Act and under the new Act the Legislature was anxious to protect the third party (victim) of interest. It appears that what was implicit in the provisions of the old Act is now made explicit, presumably in view of the conflicting decisions on this aspect rt among the various High Courts.
14. ...............
15. As between the two conflicting views of the Full Bench judgments noticed above, we prefer to approve the ratio laid down by the Andhra Pradesh High Court in Kondaiah s case, 1986 AIR(AP) 62 as it advances the object of the Legislature to protect the third party interest. We hasten to add that the third party here will not include a transferee whose transferor has not followed procedure for transfer of policy. In other words in accord with the wellsettled rule of interpretation of statutes we are inclined to hold that the view taken by the Andhra Pradesh High Court in Kondaiah's case is preferable to the contrary views taken by the Karnataka and Delhi High Courts even assuming that two views are possible on the interpretation of relevant sections ::: Downloaded on - 15/04/2017 20:12:56 :::HCHP 6 as it promotes the object of the Legislature in protecting the third party (victim) interest. The ratio laid down in the judgment of .
Karnataka and Delhi High Courts (AIR 1990 Kant 166 (FB) and AIR 1989 Delhi 88) (FB) (supra) differing from Andhra Pradesh High Court is not the correct one."
18. The Apex Court in case titled as of Rikhi Ram and another versus Smt. Sukhrania and others, 2003 AIR(SC) 1446held that in absence of intimation of transfer to Insurance Company, the liability of Insurance Company does not rt cease. It is apt to reproduce paras 5, 6 and 7 of the judgment, supra, herein: "5. The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not a party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject matter of an insurance can claim the benefit of an insurance.
Thus, once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.
6. On an analysis of Ss. 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract ::: Downloaded on - 15/04/2017 20:12:56 :::HCHP 7 and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get .
any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.
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7. For the aforesaid reasons, we hold that whenever a vehicle which is covered by the insurance policy is transferred to a rt transferee, the liability of insurer does not ceases so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act."
19. The Apex Court in latest judgment titled as United India Insurance Co. Ltd., Shimla versus Tilak Singh and others, 2006 4 SCC 404has held the same principle. It is apt to reproduce paras 12 and 13 of the said judgment herein:
"12. In Rikhi Ram v. Sukhrania, 2003 3 SCC 97a Bench of three learned Judges of this Court had occasion to consider Section 103A of the 1939 Act. This Court reaffirmed the decision in G. Govindan case and added that the liability of an insurer does not cease even if the owner or purchaser fails to give intimation of transfer to the Insurance Company, as the purpose of the ::: Downloaded on - 15/04/2017 20:12:56 :::HCHP 8 legislation was to protect the rights and interests of the third party.
.
13. Thus, in our view, the situation in law which arises from the failure of the transferor to notify the insurer of the fact of transfer of ownership of the insured vehicle is no different, whether under Section 103A of of the 1939 Act or under Section 157 of the 1988 Act insofar as the liability towards a third party is concerned. Thus, whether the old Act applies to the facts before us, rt or the new Act applies, as far as the deceased third party was concerned, the result would not be different. Hence, the contention of the appellant on the second issue must fail, either way, making a decision on the first contention unnecessary, for deciding the second issue. However, it may be necessary to decide which Act applies for deciding the third contention. In our view, it is not the transfer of the vehicle but the accident which furnishes the cause of action for the application before the Tribunal. Undoubtedly, the accident took place after the 1988 Act had come into force. Hence it is the 1988 Act which would govern the situation."
20. Having said so, the Tribunal has fallen in error in exonerating the insurerInsurance Company from liability and saddling owner Ashok Kumar and driver Kalyan Chand with liability.
::: Downloaded on - 15/04/2017 20:12:56 :::HCHP 921. The Tribunal has discussed the Apex Court judgment titled as United India Insurance Company Limited Shimla versus Tilak Singh & others, .
2006 3 SCR 758, but has wrongly applied it. The Tribunal has also not taken note of the fact that on the date of accident, the vehicle was in the name of registered owner Anupam Hardware Store and was not transferred to Ashok Kumar, son of Shri Kishori Lal.
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22. Having said so, it is held that the insurer Insurance Company has to indemnify. Accordingly, issues No. 1, 3, 4, 5 & 6 are decided against the insurer rt and in favour of the claimants."
9. Having said so, it is held that the insurer has to be saddled with liability and has to satisfy the impugned award.
10. Accordingly, the impugned award is modified, the insurer is saddled with liability and is directed to deposit the awarded amount before the Registry within eight weeks.
11. On deposition of the awarded amount, the same be released in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by depositing the same in their respective bank accounts. The statutory amount deposited by the appellantownerinsured be paid to the claimants in addition to the amount awarded.
::: Downloaded on - 15/04/2017 20:12:56 :::HCHP 1012. The appeal is disposed of accordingly.
13. Send down the record after placing copy of the .
judgment on Tribunal's file.
(Mansoor Ahmad Mir) Chief Justice April 29, 2016 ( rajni ) of rt ::: Downloaded on - 15/04/2017 20:12:56 :::HCHP