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National Insurance Company Ltd. Vs. Mayadhar Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 138 of 1986
Judge
Reported in1993ACJ444; AIR1992Ori268; (1993)IILLJ523Ori
ActsMotor Vehicles Act, 1939 - Sections 103A; Workmen's Compensation Act, 1923 - Sections 3
AppellantNational Insurance Company Ltd.
RespondentMayadhar Pal and ors.
Appellant AdvocateS.D. Das, Adv.
Respondent AdvocatePradip Mohanty and B.P. Ray, ;R.B. Mohapatra, ;P.K. Rath and ;D. Rout, Advs.
Cases ReferredP.K. Panda v. Smt. Premalata Choudhury.
Excerpt:
.....makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the insurer took the plea that they had not incurred any liability, and wanted the claimant to prove that the vehicle in question was insured with them, as well as the circumstances pertaining to accident. strong reliance was placed on ext......for the insurer, strenuously urges that the correct principles of law relating to transfer of a policy of insurance were not kept in view by the commissioner while fixing the liability on the insurer. mr. b.p. ray, the learned counsel appearing for the claimant, submits that the transfer in question being within the knowledge of the insurer, it cannot avoid its liability. similar submissions have been made by mr. r.b. mohapatra, the learned counsel appearing for balwant singh.4. in view of the contentions raised, it would be desirable to refer to various relevant provisions of the motor vehicles act, 1939 (in short the 'mv act') which held the field at the relevant time, dealing with the liability of the insurer. the provision which needs consideration in the instant case relates to.....
Judgment:

A. Pasayat, J.

1. In this appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the 'Act'), the liability fastened on the National Insurance Company Limited (in short the 'insurer') is under challenge.

2. Outlined in brief the factual controversy is as follows :

A claim petition was filed before the Deputy Labour Commissioner-cum-Commissioner for Workmen's Compensation, Rourkela (in short the 'Commissioner') by one Mayadhar Pal claiming that his son Zilanath was a workman under Kalinga Steel Limited, Rourkela for some time, and on 5-11-1979, the fateful date, met his end while going in a truck bearing registration No. OSO 5256, belonging to one Balwant Singh, respondent No. 2 in the present appeal. Balwant Singh appeared pursuant to notice and accepted the position that he was the owner of the truck in question, the vehicle had been hired by Kalinga Steel Limited (in short 'Kalinga') and that the insurer was jointly and severally liable with Kalinga for payment of compensation, since the deceased was not a workman under him. Kalinga, respondent No. 3 in the present appeal contested the position and denied the averment that they had engaged the truck in question and/or to have engaged the deceased. The insurer took the plea that they had not incurred any liability, and wanted the claimant to prove that the vehicle in question was insured with them, as well as the circumstances pertaining to accident.

The Commissioner framed four issues, and on evaluation of the documentary and oral evidence came to hold that the deceased was employed as a workman under Balwant Singh. However, he held that there was no material to show that Kalinga had hired the vehicle in question. He quantified the compensation payable at Rs. 16,800/- and further awarded interest at the rate of 6% per annum from the date of accident till the date of award. Coming to the most vital question as to on whom the liability was to be fastened, he held that though originally the vehicle was insured in the name of one Pritam Singh, yet there was material to show that the vehicle had already been transferred by Pritam Singh to Balwant Singh, and therefore, the insurer was liable to pay the amount. Strong reliance was placed on Ext. A filed by Balwant Singh to conclude that the transfer of the vehicle by Pritam Singh to Balwant Singh was within the knowledge of the insurer and therefore, the liability was that of the insurer. He, however, held that the interest was to be paid by Balwant Singh; who according to him was the owner of the offending vehicle.

3. Mr. S.D. Das, the learned counsel appearing for the insurer, strenuously urges that the correct principles of law relating to transfer of a policy of insurance were not kept in view by the Commissioner while fixing the liability on the insurer. Mr. B.P. Ray, the learned counsel appearing for the claimant, submits that the transfer in question being within the knowledge of the insurer, it cannot avoid its liability. Similar submissions have been made by Mr. R.B. Mohapatra, the learned counsel appearing for Balwant Singh.

4. In view of the contentions raised, it would be desirable to refer to various relevant provisions of the Motor Vehicles Act, 1939 (in short the 'MV Act') which held the field at the relevant time, dealing with the liability of the insurer. The provision which needs consideration in the instant case relates to transfer of certificate of insurance as laid down in Section 103A of the MV Act. It inter alia provides that where a person in whose favour the certificate of insurance has been issued proposes to transfer to another person, the ownership of the motor vehicle, in respect of which such insurance was taken together with the policy of insurance relating thereto, he may apply in the prescribed form to the insurer for the transfer of the certificate of insurance and the policy described in the certificate in favour of the person to whom the motor vehicle is proposed to be transferred, and if within fifteen days of the receipt of such application no intimation regarding acceptance or refusal is received from the insurer, it shall be deemed that the policy described in the certificate has been transferred with effect from the date of its transfer. The conditions under which the insurer may refuse to transfer to the proposed transferee have been indicated in Sub-section (2) of Section 103A. The insurer is mandated to refund the amount, if any, to the transferee for the unexpired term of the policy, when the insurer refuses to transfer the policy. It is the case of the claimant and Balwant Singh the transferee, that due intimation was given to the insurer about proposed transfer and it having chosen not to refuse transfer within the stipulated period of fifteen days, it is to be deemed that the certificate of insurance and the policy were transferred in favour of the transferee. It has also been submitted that the transfer takes effect from the date of transfer, and even if intimation is given subsequent to the actual date of transfer it operates retrospectively. The submissions though prima facie attractive do not stand close scrutiny.

5. A policy of insurance is a contract of indemnity. Insurance is available to the owner of the vehicle and is not related to the vehicle itself. When the insured ceases to be the owner of the vehicle, the contract becomes inoperative. A policy of insurance cannot be transferred by the insured without the consent of the insurer. That is the underlying principle of Section 103-A. There is a novation of the contract once the insurer agrees to transfer and the original assured is substituted by the new assured, transferee to whom the policy has been transferred. By operation of a deeming provision, there is automatic transfer of the certificate of insurance and policy described in the certificate of insurance, and the policy taken by the owner of a vehicle shall cover the transferee thereof, when requisite notice in the prescribed form is given by the original owner-transferor and there is no refusal intimated by the insurer. The intention of the legislature is very clear from the expression used in Section 103-A that when a person owner of a vehicle proposes (underlining by me) to transfer to another person the ownership of the motor vehicle, he has to apply in the prescribed form. Obviously, the application has to be made before actual transfer takes place. Similar view has been expressed in AIR 1981 Pun & Har 143: Oriental Fire & General Insurance Co. Ltd. v. Sant Ram. A bare perusal of Ext.A shows that the requisite intimation at the stage of transfer was not given to the insurer. On the contrary it is apparent that the transfer was sought for, after the accident took place. In Ext.A the following line is very significant:

'...... In the present case, as you know, the insurance was transferred to you after the accident......'

Undisputedly the certificate of insurance issued in favour of Balwant Singh and one S.M. Behera indicates effective date of commencement of insurance to be 10th November, 1979, i.e., after the date of accident. Even if knowledge is attributable to the insurer it is after the accident has occurred. No definite material was placed before the Commissioner to show that an intimation regarding proposed transfer was given to the insurer. Contrary to his conclusions, Ext.A goes to show that the intimation was after the accident. Even if the requisite information was given after the accident and the insurer did not exercise its option to refuse the transfer, yet the liability of the insurer can be only with effect from the date of intimation and not prior to that. There is no question of any retrospective operation of the policy of insurance unless evidenced by material. Under almost identical circumstances, the Madras High Court held that merely because insurance company had knowledge of the transfer of the ownership in the vehicle, its liability under the policy, which never got transferred in favour of the transferee, cannot be deemed to have continued so as to bear the liability of compensation. See AIR 1982 Madras 380: New India Insurance Co. Ltd., Bombay v. N. Ganapathy, Though slightly different aspects were under consideration, similar view was expressed by this Court in AIR 1973 Orissa 166 : South India Insurance Co. Ltd. v. Purna Chandra Misra and AIR 1980 Orissa 102: P.K. Panda v. Smt. Premalata Choudhury.

6. A plea was raised by the learned counsel for Balwant Singh that even if there was no effective and valid transfer of the certificate of insurance and the policy relating thereto, the same need be effective so far as the original owner was concerned and therefore, the insurance company's liability subsists. Such a plea does not appear to have been taken by the parties before the Commissioner. The question of acceptability or otherwise of such a plea was not examined by the Commissioner. It is, therefore, appropriate that the Commissioner should adjudicate this aspect. It is, however, made clear that the insurer has no responsibility of indemnification so far as Balwant Singh is concerned. The findings of the Commissioner so far as quantum is concerned do not need any variance. The only question the Commissioner will now adjudicate is whether there is subsisting certificate of insurance and certificate of policy so far as Pritam Singh is concerned to warrant fastening of liability, if any, on Pritam Singh, the original owner of the offending vehicle. Since the accident took place more than a decade back it is appropriate that the adjudicatory exercise should be undertaken as early as possible and finality given by the Commissioner as expeditiously as possible. Pritam Singh does not appear to be a party in the proceeding. It is open to the parties to take necessary steps for his impletion, if so available in law. This is necessary because in his absence the adjudication as aforestated would be rendered nugatory.

7. The appeal is accordingly disposed of.


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