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Sewa Singh Vs. Col. Gurcharan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.O. No. 264 of 1974
Judge
Reported in[1979]49CompCas920(P& H)
ActsMotor Vehicles Act, 1939 - Sections 103A
AppellantSewa Singh
RespondentCol. Gurcharan Singh and ors.
Appellant Advocate Laxami Grover and; S.K. Grover, Advs.
Respondent Advocate R.M. Suri, Adv. for respondent No. 4 and; L.M. Suri, Adv. for respondent No. 5
Cases ReferredM. Vengamma v. K. Duravasulu
Excerpt:
.....india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it is against this judgment of the tribunal that the claimants as well as sewa singh, owner of the truck, have filed separate appeals. sub-section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it. harinder kaur, appellant is concerned, i do not find any good reason for interference with the finding recorded by the learned tribunal. generally, the..........it was further alleged in the claim applications that due to the rash and negligent driving of the truck the accident took place. these allegations were controverted by the insurance company and also by the owner of the truck, sewa singh, and the parties contested on the following issues : ' 1. whether the petitioner suffered the alleged injuries as a result of the accident from truck no. dll 6907 due to rash and negligent driving of the said truck by respondent no. 1 santokh singh 2. to what amount, if any, is the petitioner entitled as compensations and from whom 3. whether the petitioner has got a cause of action as against the vulcan insurance company and is entitled to claim compensation from the same 4. whether the truck dll 6907 has been sold before the alleged accident? if so,.....
Judgment:

A.S. Bains, J.

1. These four appeals, i.e., F.A.O. Nos. 264 and 265 of1974 (filed by Sewa Singh truck-owner) and F.A.O. Nos. 81 and 107 of1975 (filed by claimants Col. Gurcharan Singh and Dr. Harinder Kaur, respectively) shall be disposed of by this judgment as they arise out of thesame accident and are directed against the judgment dated November 30, 1973, rendered by the Motor Accidents Claims Tribunal, Ambala.

2. Facts giving rise to these appeals are as under I

3. On August 23, 1970, Col. Gurcharan Singh and his daughter, Dr. Harinder Kaur, were coining to Chandigarh from Delhi in car No. WBT 9182 arid when they reached near the Army petrol Depot on G. T. Road, Ambala, they met with an accident with a truck bearing No. DLL 6907, which was coming from the opposite direction at a very high speed without blowing any horn or giving any signal. As a result of the accident Col. Gurcharan Singh and his daughter were injured. They were admitted in the Military Hospital, Ambala Cantt., and the matter was reported to the police at Police Station, Ambala Cantt., on August 25, 1970. The accident took place at about 10-30 P.M. on August 23, 1970. Col. Gurcharan Singh and his daughter filed claim applications before the Motor Accidents Claims Tribunal, Ambala (hereinafter referred to as the Tribunal). Col. Gurcharan Singh claimed compensation to the tune of Rs. 1,50,000 while Dr. Harinder Kaur claimed a compensation of Rs. 30,000. It was alleged in the applications that at the time of the accident the car was being driven by Col. Gurcharan Singh and his daughter was sitting by his side in the front seat and that the speed of the car was about 50 kilometres per hour and it was on the correct side whereas the truck was running at a high speed and was not blowing any horn or giving any signal. It was further alleged in the claim applications that due to the rash and negligent driving of the truck the accident took place. These allegations were controverted by the insurance company and also by the owner of the truck, Sewa Singh, and the parties contested on the following issues :

' 1. Whether the petitioner suffered the alleged injuries as a result of the accident from truck No. DLL 6907 due to rash and negligent driving of the said truck by respondent No. 1 Santokh Singh

2. To what amount, if any, is the petitioner entitled as compensations and from whom

3. Whether the petitioner has got a cause of action as against the Vulcan Insurance Company and is entitled to claim compensation from the same

4. Whether the truck DLL 6907 has been sold before the alleged accident? If so, to what effect?

5. What is the effect of not impleading Gurmukh Singh as a party to the present petition

6. Whether the truck in question was being driven by a person without licence who was not an employee of the insured at the time of the alleged accident. If so, to what effect

7. Relief.'

4. The learned Tribunal decided issue No. 1 in favour of the claimants and held that the accident took place due to the rash and negligent driving by the driver of truck No. DLL 6907 and the claimants suffered the alleged injuries as a result of that accident. Issue No. 2 was also decided in favour of the claimants and it was held that they were entitled to the compensation. In the case of Dr. Harinder Kaur it was held that she was entitled to a compensation ol Rs. 2,500 and in the case of Col. Gurcharan Singh it was held that he was entitled to a compensation of Rs. 20,000. issue No. 3 was decided in favour of the insurance company and it was held that there was no cause of action against the insurance-company. On issue No. 4 it was decided that the truck was sold before the alleged accident by Gurmukh Singh to Sewa Singh. On issue No. 5 it was held that since Gurmuk Singh was not impleaded as a party to the claim applications, the insurance company was not liable to pay any compensation to the claimants. Issue No. 6 was not seriously challenged by the parties and hence there was no finding. On the basis of the findings on issues 1 to 5, the Tribunal allowed compensation, as stated above, in favour of the claimants and Sewa Singh, owner of the truck, was held liable to pay the same. It is against this judgment of the Tribunal that the claimants as well as Sewa Singh, owner of the truck, have filed separate appeals.

5. Before me the findings of the Tribunal on issue No. 1 are not challenged. Hence, I affirm the finding of the Tribunal on this issue and hold that the accident took place due to the rash and negligent driving by the driver of truck No. DLL 6907 and that the claimants-appellants are entitled to the compensation as a result of the injuries suffered by them in the accident.

6. Mr. Grover, learned counsel for Sewa Singh, appellant, in F.A.O. Nos. 264 and 265 of 1974, has contended that findings of the Tribunal on issues Nos. 3 to 6 are erroneous inasmuch as it has fixed the liability on the appellant, i.e., owner of the truck, and not of the insurance company. For this contention he has relied upon Section 103A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act), and British India General Insurance Co. Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331 ; 29 Comp Cas (Ins.) 60 (SC) and New India Assurance Co. Ltd. v. Moti Ram [1967] ACJ 312. Mr. Gandhi, learned counsel for the appellants, Col. Gurcharan Siugh and Dr. Harinder Kaur (in F.A.O. Nos. 81 and 107 of 1975), has also supported the contention of Mr. Grover.

7. Mr. L.M. Suri, learned counsel appearing for the insurance company, has, however, contended that the liability cannot be fixed on the insurance company in view of the fact that the previous owner, Gurmukh Singh, who transferred the truck to Sewa Singh never informed the insurance company for transfer of the policy in favour of Sewa Singh, the new owner of truck No. DLL 6907 as required under Section 103A of the Act and for this contentionhe relied upon Oriental Fire and General Insurance Co. Ltd. v. Smt. Meena Sharma [1975] 77 PLR 522 and Alwar Motor Association (Private) Ltd. v. Hazari Lal [1964] 66 PLR 804; 34 Comp Cas 936 (Punj).

8. Admittedly, the accident took place on Augast 23, 1970, and Gurmukh Singh sold the truck to Sewa Singh (who is his father) on March 31, 1970. He also informed the insurance company about the change of ownership of the vehicle and made a request for the transfer of the vehicle in the name of Sewa Singh vide his letter dated March 31, 1970, but the insurance company did not take any action on his letter and the policy remained in the name of Gurmukh Singh even at the time of the accident. Thus, the ownership of the vehicle was changed prior to the accident. To appreciate the argument of Mr. Grover, learned counsel for Sewa Singh, it is necessary to analyse the provisions of Section 103A of the Act, which is in the following terms :

'103A. Transfer of certificate of insurance.--(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter 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 by the insurer, the insurer has not intimated the insured and such other person his refusal to transfer the certificate and the policy to the other person, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.

(2) The insurer to whom any application has been made under Sub-section (1) may refuse to transfer to the other person the certificate of insurance and the policy described in that certificate if he considers it necessary so to do, having regard to-

(a) the previous conduct: of the other person-

(i) as a driver of motor vehicles ; or

(ii) as a holder of the policy of insurance in respect of any motor vehicle ; or

(b) any conditions which may have been imposed in relation to any such policy held by the applicant; or

(c) the rejection of any proposal made by such other person for the issue of a policy of insurance in respect of any motor vehicle owned or possessed by him.

(3) Where the insurer has refused to transfer, in favour of the person to whom the motor vehicle has been transferred, the certificate of insurance and the policy described in that certificate, he shall refund to such transferee the amount, if any, which under the terms of the policy, he would have had to refund to the insured for the unexpired term of such policy.'

9. From the plain reading of this section it is evident that where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of Chapter VIII of the Act proposes to transfer to another person the ownership of the motor vehicle of which such insurance was taken together with the policy of insurance thereto, he may apply 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 no action is taken within fifteen days of the receipt of such application by the insurer or the insured does not receive any intimation from the insurer about the refusal to transfer the certificate and the policy to the other person, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle has been transferred. In the instant case, although the information was given to the insurance company about the transfer of the ownership of truck No. DLL 6907, vide letter dated March 31, 1970, no action was taken by the insurance company to transfer the policy and the certificate of insurance in the name of the new owner, i.e., Sewa Singh, appellant. Hence, under this provision the certificate of insurance and the policy described in the certificate are deemed to have been transferred in the name of Sewa Singh, appellant, to whom the truck in question was transferred on April 3, 1970. The evidence of Sewa Singh (R.W. No. 1) shows that he purchased the truck from his son, Gurmukh Singh, on the last day of March, 1970, and that it was registered in his name on April 3, 1970, by the Registering Authority, Delhi, and that at the time of the accident, he was the owner of the truck. The insurance company also wrote a letter to Sewa Singh, appellant, on October 12, 1970, to the effect that he should engage Mr. L. M. Suri as his advocate. The letter is Ext. R-2. A telegram, Ext. R-3, was also sent to the same effect. All this shows that the insurance company had full knowledge of the proceedings and also of the fact that the real owner of the truck was Sewa Singh, appellant and not Gurmukh Singh. The insurance company had due notice and had also filed the written statement. The stand taken by the insurance company is not at all warranted by the facts on the record. In fact, the information was sent to the insurance company by Gurmukh Singh vide his letter dated March 31, 1970 (Ext. R-5). Certificate of Posting of the letter, Ext. R-6, is also placed on the record, which is dated March 31, 1970. From the above, it is quite clear that the requirements ofs. 103A of the Act were fully complied with. This section was inserted by Act 56 of 1969 vide Section 56 and it came into force on March 2, 1970, i.e., before the accident in the present case. The matter stands concluded by the Supreme Court authority in British India General Insurance Co. Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331 ; 29 Comp Cas (Ins.) 60, wherein their Lordships observed as under (See AIR Head note):

' Apart from the statute an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Sub-section (2) of Section 96 however gives him the right to be made a party to the suit and to defend it. The right therefore, is created by statute and its content necessarily depends on the provisions of the statute. Sub-section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it. When the grounds of defence have been specified, they cannot be added to. The only manner of avoiding liability provided for in Sub-section (2) is through the defences therein mentioned. Therefore, when Sub-section (6) talks of avoiding liability in the manner provided in Sub-section (2), it necessarily refers to these defences. It cannot be said that in enacting Sub-section (2) the legislature was contemplating only those defences which were based on the conditions of the policy. '

10. A somewhat similar matter also came before a Division Bench of this court in New India Assurance Co. Ltd. v. Moti Ram [1967] ACJ 312, wherein it was held as under I

' In view of the above extended clause in the policy, the company was liable to indemnify the driver even though the vehicle had been transferred prior to the accident. The mere fact that the vehicle had been transferred did not necessarily mean that the vehicle did not actually remain under the control of the insured for the purpose of being plied for hire. There was no allegation that the vehicle was being driven without the permission of the insured. The mere transfer of ownership of the vehicle did not really affect the matter.'

11. The authorities relied upon by Mr. Sun, learned counsel for the insurance company, do not apply to the facts of the present case. Moreover, the provisions of Section 103A of the Act were not noticed in the authority, i.e., Oriental Fire and General Insurance Co. Ltd. v. Smt. Meena Sharma [1975] 77 PLR 522, So far as the decision in Alwar Motor Association (P.) Ltd. v. Hazari Lal [l964] 66 PLR 804; 34 Comp Cas 936 (Punj), is concerned, this is prior to the insertion of Section 103A of the Act. Both these authorities, therefore, are not applicable to the facts of the present case. Hence I hold that the insurance company is liable and not the owner of the truck, i.e., Sewa Singh, appellant in F.A.O, Nos. 264 and 265 of 1974.

12. Now I come to the question of the quantum of compensation. So far as Dr. Harinder Kaur, appellant is concerned, I do not find any good reason for interference with the finding recorded by the learned Tribunal.

13. So far as Col. Gurcharan Singh, appellant in appeal (F.A.O. No. 81 of 1975), is concerned, Mr. Gandhi, learned counsel for the appellant, contends that he had suffered five injuries and that according to Maj. Dr. Braham Dev, Surgical Specialist, Command Hospital, Chandigarh (A.W. 7), Col Gurcharan Singh had head injury and fractured dislocation of right hip joint and fracture of upper four ribs on the right side; that the fractured dislocation of ribs was also complicated by the nerve injury ; that Col. Gurcharan Singh remained under treatment for over three months and was discharged on October 3, 1970 ; that he was given treatment for traction for five weeks followed by physiotherapy and electrical stimulation but his leg has not become normal; that he was made to lie on his back for five weeks; that he has been left with the shortening of left leg with a dropped foot on the right side and that he will require special boots and help of walking sticks permanently. Sq. Leader K.B. Goel, Army Hospital, Delhi Cantt., was also examined as A.W. 12. He had medically examined Col. Gurcharan Singh and found the following injuries on his person:

1. Cranio-cerebral trams, head injury.

2. Fractured dislocation of right hip joint with sciatic nerve palsy, fractured acetabulum with posterior dislocation of hip joint.

3. Fractured ribs right third to seven.

4. 1 1.2' wound over the back of right elbow.

5. Multiple bruises over the hands.

14. According to him, the injuries are possible as a result of vehicular accident and were fresh. He further stated that the disability of Col. Gurcharan Singh was due to paralysis of sciatic nerve resulting in his foot drop on the right side and there was a limitation of the movement of the ankle joint; that he cannot lead normal life which he was doing before the accident occurred and that he is not fit to undertake any physical or strenuous work due to these injuries. The evidence of these two witnesses shows that the disability in the case of Col. Gurcharan Singh is permanent because his left leg is shortened and there is a foot drop on the right side and limitation of the movement of the ankle joint as a result of which he cannot walk without the aid of the stick and surgical shoes. Mr. Gandhi contends that the compensation awarded to him is on the lower side and that due to the disability suffered by him he cannot seek re-employment. According to A.W. 2, Shri Bhagwani Singh, Managing Director, Spun Pipe Co., Faridabad, employment was offered to Col. Gurcharan Singh, but due to the disability lie could not be appointed. Generally, the military persons retire at a much earlier age than the civilians and they keep good physicalhealth at the time of their retirement and in view of the very high prices and meagre pension, awarded to them, they seek re-employment. In the present case, the accident took place when he was about 57 years of age. He remained in the hospital for about 2 1/2 months. It is undoubtedly true that he cannot lead now a normal life. The compensation awarded to him by the learned Tribunal is on the low side. Mr. Gandhi referred to a Division Bench decision of the Jammu and Kashmir High Court in Union of India v. P.S. Mahal [1976] ACJ 146, wherein the compensation under the head ' General damages ' was enhanced to Rs. 40,000 as against Rs. 30,000 awarded by the Tribunal. That was a case of an Executive Engineer, who was yet in service, while in the present case the claimant Col. Gurcharan Singh had already retired at the time of the accident. Anyway, the principle of law as laid down in this authority is applicable to the circumstances of the present case and keeping this principle in view and in the circumstances of this case, the compensation is enhanced to Rs. 30,000 in all. It will be the liability of the insurance company, i.e., the New India Assurance Company Ltd., New Delhi, (respondent No. 5). Col. Gurcharan Singh shall also be entitled to interest at the rate of six per cent. per annum from the date of the application. It is stated at the Bar that so far he has not been paid any compensation. It is directed that the compensation be paid by the New India Assurance Company Ltd., forthwith.

15. It was next contended by Mr. Suri, learned counsel for the insurance company, that the liability of the insurance company is only up to the extent of Rs. 20,000. Mr. Grover, learned, counsel for Sewa Singh, appellant, says that previously the liability was Rs. 20,000 but now it has been enhanced to Rs. 50,000 by Act No. 56 of 1969. The argument of Mr. Suri is that since the amendment is later and the insurance policy was taken earlier, the amendment has no retrospective effect and for his contention he has relied upon Premier Insurance Co. Ltd. v. Padma Srinivasan [1976] ACJ 190 and Sunjiva Shetty v. Anantka [1976] ACJ 261. He has also relied upon a decision of the Delhi High Court in Manmohan Sarup Kaushal v. Mela Ram [1977] ACJ 140. But Mr. Grover has relied upon a decision of the Andhra Pradesh High Court in M. Vengamma v. K. Duravasulu, AIR 1978 AP 90, wherein it is observed as under (see Headnote):

' So far as the insurer's liability to third persons is concerned it is governed exclusively by the provisions of the Act and not by any contract or policy of insurance between the insurer and the insured and therefore the amendment of Section 95(2)(b)(ii)(4) automatically raises the limit of the insurer's liability towards third parties where the vehicle is a motor-cab from Rs. 4,000 to Rs. 10,000 from the date of commencement of the amendment, namely, March 2, 1970, and will have retrospective operation.Therefore, where the insurance policy in respect of the motor car involved in the accident was taken on February 12, 1970, for a period of one year and the policy mentioned that the liability of the insurer in respect of individual passenger was Rs. 4,000 in accordance with Section 95(2)(b)(ii)(4) as it then stood and the accident took place on March 12, 1970, after the amendment came into effect on March 2, 1970, it was held that the insurer's limit of liability towards each individual passenger would be Rs. 10,000 as provided by amended Section 95(2)(b)(ii)(4) and under Section 96(4) the insurer, would be entitled to recover from the insured the additional amount paid by it in excess of the amount covered by the policy. '

16. In the present case, although the policy of insurance was earlier to the amendment, the accident had taken place after the amendment. Therefore, the amendment shall have retrospective effect. It is under the statute that the insurer is liable to pay compensation as specified in Section 95 of the Act, wherein it is specifically laid down that the insurer will be liable up to an amount of Rs. 50,000 in case the vehicle is a goods vehicle. I am inclined to follow the principle of law as laid down in the Andhra Pradesh authority, wherein the earlier authorities relied upon by Mr. Sun, have been noticed. In this view of the matter, I hold that the New India Insurance Company (respondent No. 5), is liable to pay the whole amount of Rs. 30,000 as compensation to Col. Gurcharan Singh and Rs. 2,500 awarded to Dr. Harinder Kaur, along with interest at the rate of six per cent. per annum from the date of application.

17. No other point is urged.

18. For the reasons recorded above, the appeals (F.A.O. Nos. 264 and 265 of 1974), of Sewa Singh and of Col. Gurcharan Singh (F.A.O. No. 81 of 1975), are allowed with costs, whereas the appeal (F.A.O. No, 107 of 1975) of Dr. Harinder Kaur is dismissed except for the modifications indicated above. Counsel's fee Rs. 500 in each appeal.


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