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United India Fire and General Insurance Co. Ltd., Indore Vs. Smt. Kanchanbai and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 240 of 1975
Judge
Reported inAIR1981MP225
ActsMotor Vehicles Act, 1939 - Sections 95(2); Sale of Goods Act, 1930 - Sections 4
AppellantUnited India Fire and General Insurance Co. Ltd., Indore
RespondentSmt. Kanchanbai and ors.
DispositionAppeal dismissed
Cases ReferredIns. Society Ltd. v. Bhagaban Sahu).
Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - d-1 clearly indicates that full price as agreed to between the parties was not paid by respondent no. d-1 clearly, indicates that there was no concluded sale of the truck, but it was only an agreement to sell......the appellant, respondents nos. 4, 5 and 6 have not filed any appeal against the award.5. the learned counsel for the appellant shri sujan jain did not and could not challenge the factum of accident and the manner in which it took place resulting in the death of devilal as a result of rash and negligent driving of the said truck by the driver respondent no. 5 nathusingh who was found to be in the employment of respondent no. 4 babulal. the learned counsel for the appellant also did not dispute the quantum of compensation assessed by the learned member of the tribunal.6. however, the learned counsel for the appellant contended that though the said truck was got insured by respondent no. 4 babulal with the appellant company, still the same having been sold by respondent no. 4 babulal.....
Judgment:

P.D. Muley, J.

1. This appeal filed by the Insurance Company under Section 110-D of the Motor Vehicles Act, is directed against an award dated 30-8-1975 given by the Motor Accident Claims Tribunal, Indore, in Claim Case No. 74 of 1973, awarding compensation of Rs. 15,500/- with interest at 6 per cent per annum alone with costs, in favour of respondents Nos. 1, 2 and 3, who had initially claimed Rs. 1,10,000/- as total compensation.

2. The facts giving rise to this appeal which are no lonser in dispute and also Droved are as under: That respondent No. 4 Babulal was the owner of truck Number MPF-6083, the registration of which stood in his name. The said truck was insured by him with the appellant United India Fire and General Insurance Company Limited. On 14-3-73 the said truck MPF (5083 was driven by respondent No. 5 Nathusingh, who was the driver of the said truck. On that date while Devilal. the deceased was coming from the left hand side of the road on his cycle, from the overbridge side, the said truck which was being driven at an excessively high speed in a rash and negligent manner dashed against him due to which Devilal died on the spot, who was 55 years old at the time of his death and was working in Malwa Mills, Indore. his monthly income being Rupees 256/- D. m. Respondents Nos. 1, 2 and 3 who happen to be the widow, son and daughter respectively therefore, filed the present claim petition claiming total compensation of Rs. 1,10.000/-under different heads as detailed in the application.

3. Respondent No. 5 Nathusingh, the driver remained ex parte in the trial Court as also he has remained ex parte in this Court. Respondent No. 4 Babulal denied his liability on the ground that he had sold the truck to respondent No. 6 M/s. Mangilal Suvalal Jain on 20-12-72 as per Ex. D-1, of which possession was handed over on 21-12-72 and that respondent No. 5 Nathusingh was not his driver at the time of the accident. He also denied the allegations regarding the manner in which the accident occurred and thus also denied the quantum of damages claimed. Respondent No. 6 M/s. Mangilal Suvalal Jain appeared initially, but later remained ex parte. The appellant Insurance Company also denied its liability as according to them their liability had ceased as soon as respondent No. 4 Babulal had transferred the truck to respondent No. 6 M/s. Mangilal Suvalal Jain. They also alleged that respondent No. 5 Nathusingh did not hold any valid driving license.

4. The learned Member of the Tribunal on the basis of the pleadings of the parties, after framing issues and after recording evidence thereon, found that on 14-3-73 the accident occurred on account of the rash and negligent driving of the truck by respondent No. 5 Nathusingh due to which Devilal. who was proceeding on the GSTI Road on his cycle was fatally knocked down. He also found that on the date of the accident the said truck was not sold by respondent No. 4 Babulal to resnondent No. 6 M/s. Mangilal Suvalal Jain, that on 21-12-72 the said truck was in the possession of respondent No. 6. that on the date of the accident respondent No. 4 was the owner of the said truck, that respondent No. 5 Nathusingh was driving the said truck on the day of the accident in the capacity of a servant of respondent No. 4 Babulal. So far as quantum of compensation is concerned it has been found on evidence that respondents Nos. 1, 2 and 3 are entitled to total compensation of Rs. 15,500/-with costs and interest. Accordingly it save an award against the appellant as also against respondents Nos. 4, 5 and 6 as stated above. However, except the appellant, respondents Nos. 4, 5 and 6 have not filed any appeal against the award.

5. The learned counsel for the appellant Shri Sujan Jain did not and could not challenge the factum of accident and the manner in which it took place resulting in the death of Devilal as a result of rash and negligent driving of the said truck by the driver respondent No. 5 Nathusingh who was found to be in the employment of respondent No. 4 Babulal. The learned counsel for the appellant also did not dispute the quantum of compensation assessed by the learned Member of the Tribunal.

6. However, the learned counsel for the appellant contended that though the said truck was got insured by respondent No. 4 Babulal with the appellant Company, still the same having been sold by respondent No. 4 Babulal to resoondent No. 6 M/s. Mangilal Suvalal Jain on 20-12-72 as per Ex. D-1, the appellant could not be held liable especially when at the time of the accident possession of the said truck was also with respondent No. 6 right from 21-12-72. He also submitted that at the time of the accident respondent No. 5 Nathusingh was not in the employment of respondent No. 4 Babulal and that the respondent No. 5 did not have a valid driving licence at the time of the accident. He also challenged the finding of the Tribunal that the leeal possession of the truck was with respondent No. 4 at the time of the accident.

7. It may be noted at the outset that the appellant did not file any copy of the Insurance Policy nor the original was got produced through Babulal who has been examined as D. W. 1. Besides, there is no evidence on record to indicate that respondent No. 5 Nathusingh did not hold a valid license to drive the truck on the date of the accident. That apart, respondents Nos. 4. 5 and 6 have not filed any appeal against the said award. It was therefore, submitted that after the sale of the said truck by respondent No. 4 to respondent No. 6, the contract of insurance had already come to an end and consequently the learned Tribunal has committed an error in awarding compensation against the appellant also.

8. The learned counsel for the appellant took me through the evidence of D. W. 1 Babulal and also placed reliance on Ex. D-1 and contended that the said truck having already been sold by respondent No. 4 to respondent No. 6 who was also given possession thereof on 21-12-72, respondent No. 4 Babulal had ceased to be the owner of the said truck with the result that respondent No. 5 Nathusingh could not be said to be in the employment of respondent No. 4 as his driver. According to the learned counsel as possession of the truck was actually handed over to respondent No. 5 on 21-12-72. thereafter respondent No. 5 was the employee of respondent No. 6. with whom there was no contract of insurance, the same having come to an end on 21-12-72 itself when Babulal had sold the truck by actually delivering its possession to respondent No. 6 even though the registration certificate under the Motor Vehicles Act continued to remain in the name of respondent No. 4 on the date of the accident also and m support of this submission he placed reliance on the decisions reported in 1980 Ace CJ 126 (Madh-Pra) Balwant Singh v. Jhannubai: 1980 Ace CJ 377 (Kant) (Sundaram Finance Ltd. Madras v. D. G. Naniappa) and 1979 Ace CJ 503: (AIR 1979 Madh Pra 85) (State of Madhva Pradesh v. Premabaai).

9. As against this Shri B. K. Sam-dhani. learned counsel for respondents Nos. 1. 2 and 3 submitted that Ex. D-1 is not a sale, but an agreement to sell and the evidence of D. W. 1 Babulal as also the tenor of Ex. D-1 clearly indicates that full price as agreed to between the parties was not paid by respondent No. 6 to respondent No. 4 when the possession of the truck was delivered to him and that even according to the terms mentioned in Ex. D-1 the balance amount was to be paid by instalments and it is only after the receipt of the full consideration it was agreed that the registration of the truck would be transferred in the name of respondent No. 6. He further submitted that D. W. 2 Sunderlal. who has been examined as a witness on behalf of the appellant has stated that Babulal had never informed the Insurance Company that he had sold the said truck to respondent No. 6. He has further admitted that respondent No. 4 Babulal was asked by Shri Bantia, the Officer of the said Company to contact Shri Suian Jain who was also the counsel for the Insurance Company in this case. It was, therefore, contended that the appellant has not led any evidence to prove that the contract of insurance had come to an end when the accident occurred or that it was a condition precedent under the terms of the policy that the driver must have a driving licence and in absence of the production of the Insurance policy on record, the argument advanced by the learned counsel for the appellant cannot be allowed to stand.

10. While distinguishing the authority cited on behalf of the appellant, the learned counsel for respondents Nos. 1, 2 and 3 submitted that the evidence on record leads only to this conclusion that there was no concluded sale of that truck but only an agreement to sell and consequently though this contract would be governed by the Sale of Goods Act, still the sale being incomplete and Babulal respondent No. 4 having retained his control over the said truck by not getting the registration transferred till the whole consideration as agreed to was paid to him by respondent No. 6, it cannot be held that the Insurance Company is absolved from its liability to pay the compensation and in support of this submission he placed reliance on the decisions reported In 1966 Ace CJ 382 (Puni) (Jupiter General) Insurance Co. Ltd. v. Gurcharan Singh), 1980 Ace CJ 189 : (AIR 1980 Andh Pra 1431 (J. C. Chennaravudu v. N. Lakshmamma); 1967 Ace CJ 155 (F. C. Mala) Nanyang Insurance Company Ltd. v. Salbiah); 1976 Ace CJ 1: (AIR 1976 Rai 71) and 1971 Ace CJ 49 (Orissa) (Orissa Co-operative Ins. Society Ltd. v. Bhagaban Sahu).

11. Shri R. C. Chhazed, learned counsel for the respondent No. 6 contended that as there was not a complete sale of the truck on the day of the accident, the respondent No. 4 had retained his control over the said truck and that he was acting and working on behalf of respondent No. 4 as his agent and it is only to facilitate the payment of instalments which were to be paid by him to respondent No. 4 that possession of the truck was with respondent No. 6, but the possession could not be said to be on the basis of concluded sale as even according to Ex. D-1 certain amount was yet to be paid by respondent No. 6 to respondent No. 4. He further submitted that it is not at all suggested to Babulal that on the date of the accident he had received the entire full consideration as agreed to in Ex. D-1 or that he had ceased to have any control over the said truck on the date of the accident.

12. After cerefully considering the arguments of the learned counsel for the parties and after some through the evidence adduced by the parties as also the case law cited, I am of opinion that the contentions advanced on behalf of the appellant cannot be accepted. The evidence of D. W. 1 Babulal, D. W. 2 Sunderlal and a bare reading of Ex. D-1 clearly, indicates that there was no concluded sale of the truck, but it was only an agreement to sell. It is no doubt true that for effecting such a sale transfer of the registration certificate under the Motor Vehicles Act is not necessary, but along with the delivery of possession payment of full consideration as agreed to is necessary, In the present case as has emerged from evidence on record on the date of the accident a pact of the sale consideration was yet to be paid by respondent No. 6 to respondent No. 4 and in these circumstances, in my opinion, Ex. D-1 being only an agreement to sell cannot be treated to be an absolute sale. It is, therefore, difficult to agree with the learned, counsel for the appellant that on 21-12-72 when possession of the truck was handed over to respondent No. 6, there was a concluded sale and that respondent No. 4 had ceased to have any interest or control over the said truck with the result that the eon-tract of insurance with Babulal respondent No. 4 had come to an end. The evidence of Babulal and Sunderlal further indicates that it was Babulal who after the accident approached the Insurance Company to defend the case that it was Babulal who defended the case by engaging the same counsel who also was the counsel for the appellant Insurance Company. All this further goes to show that Babulal still continued to be the owner of the said truck. Besides, respondent No. 6 has not been examined as witness to prove that he had become the owner of the said truck on 21-12-72 itself and that even on the date of the accident he was the sole owner of the said truck. It is therefore, clear that the property in the said truck still vested with Babulal respondent No. 4 and the truck was also being driven by respondent No. 6 with his permission, respondent No. 5 Nathusingh being the driver. Therefore, though the principles enunciated in the authorities cited on behalf of the appellant cannot be disputed still they are distinguishable on facts, when applied to the facts of the present case.

13. In the result this appeal fails and is dismissed with costs. The award is maintained. Counsel's fee according to schedule, if certified.


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