Bombay High Court
New India Assurance Co. Ltd vs Kausalyabai Onkar Lahudkar on 20 December, 2010
Bench: K. K. Tated
1 fa553.96
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 553 OF 1996
New India Assurance Co. Ltd.,
having Registered office at New
India Assurance Building 87,
M.G. Marg, Fort, Mumbai 400 023
and having Divisional Office
at Akola Dist. Akola and
at Aurangabad. ...APPELLANT
VERSUS
1.
Kausalyabai Onkar Lahudkar,
Age: 52 years, Occ: Nil,
2. Onkar Danaji Lahudkar,
Age: 57 years, Occ: Nil,
(Shown dead as per Registrar's
order dtd.14-09-1999).
3. Subhas Onkar Lahudkar,
Age about 23 years, Occ: Schooling,
4. Anil Onkar Lahudkar,
Age: 21 years, Occ: Nil,
5. Arvind Onkar Lahudkar,
Age: 19 years, Occ: Nil,
All R/o. Undari, Tal. Chikhali,
District Buldhana.
6. Dagdu Hivram Vane,
Age: Major, Occ: Driver,
R/o. Sutarwadi, Tq. Parner,
At present at Sonai, Tq.Newasa.
(Appeal dismissed against Respondent No.6
::: Downloaded on - 09/06/2013 16:42:39 :::
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as per Registrar's order
dated 21-07-2009).
7. Ramkishan Wagaji Mane,
Age: Major, Occ: Truck owner,
R/o Post Rishod near
Bus stand, Tq. Risod,
District Akola.
...RESPONDENTS
...
Shri. S.L. Kulkarni, Advocate for Appellant
None for the respondents.
...
CORAM : K.K. TATED, J.
RESERVED ON : 08/12/2010
PRONOUNCED ON : 20/12/2010
JUDGMENT :
. Heard the learned Counsel for the
appellant. No one appeared for the respondents.
2. Present appeal is preferred by the
original opponent No. 3 Insurance Company against
the judgment and award dated 15-03-1996 passed by
the Motor Accident Claims Tribunal, Ahmednagar in
Motor Accident Claims Petition No. 140 of 1989.
The respondents - original claimants filed
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application before the Motor Accident Claims
Tribunal claiming compensation of Rs.1,50,000/-.
The respondents - original claimants are legal
representatives/legal heirs - parents and brother
of the deceased Vilas Onkar Lahudkar. The
deceased was working as cleaner on Tempo of
Ashokkumar Purohit. He was getting Rs.700/- per
month. He used to pay Rs.400/- per month to his
family for household expenses. The deceased was
the sole person who was managing the entire
family. On 26-12-1988 the deceased came from
Baramati and was going towards Aurangabad
alongwith tempo. After crossing Pandharipul, one
bulb of head lamp of tempo became short.
Therefore, the driver of the tempo asked the
deceased to replace the same. For replacement of
the said lamp, driver stopped the tempo at the
left side of the road. After replacing the bulb,
the deceased was coming in front of the tempo. At
that time, truck gave dash to the said tempo from
the back side, due to which, the tempo was pushed
ahead for a distance of 60 to 65 ft., and the
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truck turned turtle. In the said accident, Vilas
Onkar Ladhudkar died. Therefore, the respondents
- original claimants filed claim petition claiming
compensation in the sum of Rs.1,50,000/-.
3. In that claim petition, the appellant
Insurance Company filed their written statement
dated 18-11-1989 and resisted the claim petition.
The appellant raised objection that "respondent
No.7 owner of the truck which was insured under
the policy, had transferred the said vehicle to
one Mr. Liyakat Hussain Shaikh, who again
transferred it to Mrs. Sangita Kishor Bhandari on
14-12-1988 and also parted with possession of the
said vehicle to her, without any intimation and
without permission of the appellant. Therefore he
had no insurable interest in the said vehicle on
the alleged date of the incident i.e. on
26-12-1988. As the said vehicle was transferred
without any intimation and without the permission
of the appellant, the policy of insurance issued
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lapsed and so the appellant is not liable to pay
any compensation."
4. I heard Mr. S.L. Kulkarni, the learned
Counsel appearing on behalf of the appellant. The
learned Counsel appearing on behalf of the
appellant made a statement before the Court that
they challenged the impugned judgment and award
passed by the Tribunal on 15-03-1996 only on the
ground that respondent No. 7 - owner sold the
vehicle to third party before the date of
accident, without intimating them and therefore,
they are not liable to pay any compensation to the
respondents - original claimants. He submits that
it has come on record in the pleadings that the
vehicle was transferred by respondent No.7 and
possession was handed over to the purchaser of the
vehicle before the accident occurred. Under such
circumstances, the claim petition should have been
rejected for not impleading necessary party. He
further submits that as per provisions of
Section 31 of Sale of Goods Act, 1930, the
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transfer of ownership take place on the date of
sale, though in registration of vehicle record
maintained by the Regional Transport Authority,
name of the transferor is recorded later on.
Hence, the learned Tribunal ought to have held
that the appellant Insurance Company was not
liable to pay compensation. He further submits
that the transfer of ownership takes place from
the sale date and not on the date on which the
name of transferor is recorded in the office of
the R.T.A. Therefore, relying on evidence of
witness Prakash at Exhibit-68 the learned Tribunal
has given erroneous finding on issue Nos.3 and 4
and same are against law. He further submits that
the Tribunal has committed an error in relying on
Exhibit-69 certificate issued by the R.T.O.
showing that the vehicle stands in the name of
respondent No.7 on the date of accident to fasten
the liability on the Insurance Company.
5. On the basis of these submissions, the
learned Counsel appearing on behalf of the
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appellant - Insurance Company submits that the
impugned judgment and award passed by the Tribunal
against the Insurance Company, is liable to be set
aside.
6. The issue involved in the present case is
whether the Insurance Company is liable to pay
compensation once vehicle is sold but not
transferred in the record of R.T.O. as per Motor
Vehicles Act before the date of incident?
7. The appellant brought on record that Mrs.
Sangita Kishor Bhandari filed application before
the Judicial Magistrate, First Class, Newasa for
possession of the vehicle which was attached in
Crime No. 260/1988 stating that she is owner of
the vehicle. The said truck was released in her
favour on the basis of sale transaction dated
14-12-1988. It is to be noted that though Mrs.
Sangita Bhandari filed application for release of
the vehicle from Judicial Magistrate, First Class,
Newasa in Crime No. 260/1988, her name was not
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entered in the office of R.T.O. as owner on the
date of accident i.e. on 26-12-1988. It is to be
noted that as per Motor Vehicles Act, ownership
transfers from one person to another person when
the purchaser's name entered into R.C. book
maintained by the office of R.T.O. Our High Court
in the matter of Union of India vs. Bharat Raghoji
Kedare @ Mhaske & another reported in 2009 B.C.I.
223 held that unless and until purchaser's name
entered into R.T.O. records, it is not possible to
hold the purchaser as registered owner of the
vehicle. Para-21 of that judgment reads as under.
"21. The reference of ownership
recorded in SCC No. 799/1997 by the
learned Judge in his order dt. 20th
Jan.,2004, in paragraph 13 thereof,
will not mean and lead to draw an
inference that the vehicle was owned
by Sayyad Chand s/o Sayyad Waliuddin
as on the date of accident. Said
Sayyad Chand making an application to
the Court concerned on 3.7.1997
requesting to hand over the seized
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auto rickshaw on Supurdnama
(undertaking) claiming himself to be
owner of the auto rickshaw, annexing
therewith xerox copies of the sale
letter dt. 7.4.1997, xerox copy
of tax book dt. 4.3.1992 or copy of
R.C. Book by itself will not
exonerate the respondent Sk. Elias.
No such plea was raised before the
learned Judge. That apart, the
accident is taken on 12.5.1997 while
the so called sale letter is dt.
7.4.1997 but there is no such entry
in the R.T.O. records showing such
transfer of the vehicle from Sk.
Elias Sk. Burhan to said Sayyad Chand
Sayyad Waliuddin. The R.T.O.
particulars are also short of
acceptance of such theory as they are
in the name of respondent Sk. Elias."
8. In the similar way, our High Court in the
matter of Anguribai Babulal Patodi vs. United
India Insurance Co. Ltd. & others reported in
2003(Supp.2) Bom.C.R. 530 held that unless and
until there is a breach of terms and conditions of
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the insurance policy, the Court cannot compel the
insurance company for payment of compensation.
Head Note - A reads thus :
" Motor Vehicles Act, 1939, Secs.
103-A, 94 & 95-Vehicle transferred
from one owner to another-insurer's
liability-During currency of
insurance-MACT exonerating insurer
from liability because ownership of
vehicle had been transferred in
January 1989 and registered with RTO
in March 1989-Insurance cover was
for period 16-1-89 to 14-1-90-
Accident took place on 10-11-89-
Held, so far as 3rd party risk is
concerned insurer is liable during
the currency of insurance even if
the ownership of the vehicle has
changed and it has not been
intimated to the insurer. It is not
effected by terms or conditions of
the policy. Sections 94 and 95 of
the Act fortify the position that
any person who will use the vehicle
is not required to insurer it
separately. Transferee of vehicle
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may not get personal benefit in such
case, but as far as third party risk
is concerned, he can enforce it."
9. Similar view was taken by our High Court
in the matter of National Insurance Co. Ltd., vs.
Bhargavi Gopala Krishnan & Ors. reported in
2006(4) Bom.C.R. 608. Head Note A reads as under.
" Motor Vehicles Act, 1939, Secs.
31, 94 & 103 - Insurable interest of
insurer-On sale of vehicle -
Accident occurred on 14-03-1984-Due
to dash of jeep against rickshaw-
Death of rickshaw driver-Respondent
No. 6 who owned jeep, that he sold
same on 30.1.1984 to respondent No.
6-On 2-2-1984 informed Insurance Co.
to cancel policy and to refund
balance premium-Contention of
respondent No.6, on date of incident
he was not owner of vehicle-Claim
for compensation granted-Challenged-
Held, though respondent No.6 had
given intimation to appellant about
sale of jeep and made request to
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refund remaining amount of premium,
request was accepted and acted upon
by appellant only after accident in
question. Tribunal justified in
holding that respondent No. 6 had
insurable interest in offending
vehicle and liable to pay
compensation. 1993(3)S.C.C. 97
relied and followed. A.I.R. 1985
Guj. 164 implied by overruled no
longer a good law. (Paras 13 & 14)."
10. In view of the above mentioned cited
authorities and facts of the present case, the
submission made by the learned Counsel appearing
on behalf of the appellant that as per Sale of
Goods Act, on the date of accident, the vehicle
stood transferred in the name of Mrs. Sangita
Bhandari and therefore, they are not liable to pay
compensation though insurance policy was well in
force, is not acceptable. It is crystal clear
from the above cited authorities that when it is
held that the original owner of the vehicle is
liable to pay compensation, the insurance company
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with whom the said vehicle is insured is also
liable. In the present case, though the vehicle
was sold before the date of the accident, the same
was not duly transferred in the name of purchaser
in the office of the R.T.A. Therefore, the
insurance company is liable to pay compensation.
11. In view of the above mentioned facts and
circumstances, I do not find any reason to
interfere with the judgment and award passed by
the Tribunal dated 15-03-1996 holding the
Insurance Company also responsible for payment of
compensation. First Appeal is dismissed. No
order as to costs.
sd/-
[K.K. TATED, J.]
sut/Dec10/fa553.96
