Dwarka Prasad, Acting. C.J.
1. This is an appeal in a motor accident claims case. The respondent Khetpal Singh was the driver in a Government jeep No R. J. R. 151 which was coming towards Jaipur from Kota on December 4, 1965. While the Jeep had proceeded about 8 miles beyond Bundi, truck No. R. J. Z. 1884 , which was driven by Shakti Singh respondent, dashed against the jeep. As a result of the aforesaid collision, Khetpal Singh received a fracture of his right forearm, while his sons Bishwendra Pal Singh and Ranghavendra Singh, who were also travelling along with him, sustained injuries. A claim petition was filed by Khet Pal Singh and his sons before the Motor Accidents Claims Tribunal, Kota, complaining that Shakti Singh was driving the truck rashly and negligently and as a result thereof the accident took place, causing injuries to Khetpal Singh and his two sons. A sum of Rs. 65,000/- was claimed by Khet Pal Singh for loss caused to him while a sum of Rs. 17,000/- each was claimed on account of injuries sustained by his two sons.
2. The driver Shakti Singh as well as the owner of the vehicle Raghuvir Singh and the Insurance Company, M/s. Motor Owners Insurance, Company, Yadav Building, Belgaon, Maharashtra (hereinafter referred to as 'the insurer') were sought to be made liable for compensation for the injuries sustained by Khet Pal Singh and his sons. The Tribunal, after a trial, held that Shakti Singh was driving the truck rashly and negligently and on account of the rash conduct of the truck driver Shakti Singh the accident was caused and injuries were sustained by Khet Pal Singh and his sons. The Tribunal awarded a sum of Rs. 10,000/- as compensation to Khet Pal Singh and his two sons, by its order dated Dec. 11, 1967.
3. When the matter came up for hearing in this Court on appeal, Jagat Narayan J., as he then was, framed an additional issue to the following effect, by his order dated Dec. 5, 1969 and remanded the case to the Tribunal:--
'Was there a subsisting contract of Insurance between Raghuvir Singh and defendant No. 3 in respect of truck No. R.J.Z. 1884 on the date of the accident?'
(On Plaintiff & Raghuveer Singh)'
4. The Tribunal recorded the evidence of the parties in respect of the additional issue and returned the record together with the evidence and his finding in respect of the new issue. The Tribunal found that the contract of insurance subsisted between Raghuvir Singh and the insurer on the date of the accident. He, therefore, held that the Insurance Company was also liable to the same extent as Raghuvir Singh and the liability was also fastened against the insurer in respect of the amount of Rs. 18,000/-. The appeal was later on dismissed in default on 24-3-1972, but on appeal the order passed by the learned single Judge in this respect was set aside by the Division Bench and the case was remanded for fresh hearing, It is in this manner that the appeal has come up before me for hearing.
5. The contention of the learned counsel for the Insurance Company before me is that the contract of Insurance had come to an end because Hundaldas Daulatram was the insurer and although the insurance policy was effective for the period of one year from 7th December, 1964 to 6th Dec., 1965, but in March, 1965 the ownership of truck No. R.J.Z. 1884 was transferred by Hundaldas Daulatram to Raghuvir Singh and the same was also registered in the name of Raghuvir Singh. The accident took place on Dec. 4, 1965 and as there was no contract of insurance entered into by the Insurance Company and Raghuvir Singh, the Insurance Company could not be held liable for compensation which was payable by Raghuvir Singh.
6. On the other hand, it was argued by Mr. Mehta appearing on behalf of Khet Pal Singh and his sons that the Tribunal was right in holding that the contract of insurance was transferred in the name of Raghuvir Singh with the implied consent of the Insurance Company and on this ground it was urged that the Insurance Company was also liable for the compensation awarded by the Tribunal.
7. No argument was advanced before me on behalf of any of the parties in respect of the correctness of the finding of the Tribunal regarding rash and negligent driving of truck R.J.Z. 1884 by the driver thereof Or in respect of the quantum of compensation awarded by the Tribunal to Khet Pal Singh and his sons.
8. The only question involved in this appeal relates to the liability of the Insurance Company for payment of compensation awarded against Raghuvir Singh. The Tribunal relied upon the statement of Raghuvir Singh for arriving at the conclusion that he had purchased truck No. R.J.Z. 1884 from Hundaldas Daulatram in the year 1965 before the accident in question had taken place. Learned counsel for the appellant Insurance Company contended before me that the Registration certificate of the truck or any other document was not produced in evidence, so that it could be held as to when the registration certificate of the truck was transferred to the name of Raghuvir Singh. However, in the absence of any other evidence to the contrary, Raghuvir Singh's evidence can safely be relied upon for coming to Ihe conclusion that he had purchased truck No. R.J.Z. 1884 from Hundaldas Daulatram in March, 1965 and that the registration certificate of the vehicle was also transferred in the name of Raghu-vir Singh before the accident took place.
9. So far as the question as to whether there was any transfer of the insurance policy from the name of Hundaldas Daulatram to Raghuvir Singh, the Tribunal held that the evidence of Raghuvir Singh was vague and indefinite as he did not state that the Insurance Company had consented to the transfer of insurance policy in favour of Raghuvir Singh. The Tribunal relied upon three circumstances appearing from the statement of Shri S. T. Vaidya, Regional Manager of the Motor Owners Insurance Company Ltd., with which the truck was insured. The most important circumstance relied upon in this connection was that Raghuvir Singh obtained a further insurance policy in respect of the truck in dispute from the same insurance company from Jan. 21, 1966 to Jan. 20, 1967 and no claim bonus to the extent of 20% was allowed to Raghuvir Singh along with a special rebate to the extent of 40%. It was argued by the learned counsel appearing for the Insurance Company that merely because no claim bonus was allowed to Raghuvir Singh subsequently, even if erroneously, the same could not be considered as consent on the part of the Insurance Company to the continuance of the contract of insurance after the transfer of the ownership of the vehicle. Another circumstance relied upon by the Tribunal was that the agent, Mrs. Advani or the Branch Manager of the Ajmer Branch of the Insurance Company, Mr. Kulkarni were not produced as witnesses, who could have thrown some light as to why a no claim bonus to the extent of 20% was allowed to Raghuvir Singh when he later obtained a fresh insurance in respect of the truck in question. The third ground which prevailed with the Tribunal was that when the registration certificate of the truck in question had been transferred to the name of Raghuvir Singh before the accident took place, it must be presumed that the truck was also insured in his name as according to the Tribunal, the Regional Transport Authority before ordering the transfer of registration certificate from the name of Hundaldas Daulatram to that of Raghu-vir Singh must have satisfied itself that there was a subsisting policy of insurance covering the truck in question. The decision of the Calcutta High Court in Bir Singh v. Smt. Hashi Rashi Banerjee AIR 1956 Cal 555 was relied upon hy the Tribunal in support of its finding in this respect.
10. There is no doubt that Raghuvir Singh took a new insurance policy in respect of truck No. R.J.Z. 1884 on Jan. 21, 1966 and while giving the insurance policy, a no claim bonus of 20% was allowed by the Insurance Company to Raghuvir Singh. But merely because a no claim bonus was allowed, it is difficult to come to the conclusion that prior to Jan. 21, 1966, the truck must have been covered by a subsisting insurance policy. However, this fact has to be taken into consideration along with another fact that neither Mrs. Advani nor Kulkarni was produced as witness on behalf of the Insurance Company and Shri S. T. Vaidya was produced as a witness, who was the Regional Manager of the Company stationed at Delhi and who had no personal knowledge as to why and in what circumstances a no claim bonus was allowed to Raghuvir Singh, while granting a new insurance policy to him in respect of the truck in question. Some argument was also advanced before me that Raghuvir Singh had deposited a sum at Rs. 3/- as transfer fee with the agent, Mrs. Advani. But there is no positive evidence in this respect as Raghuvir Singh has given a vague statement that he did not remember as to whether he deposited a sum of Rs. 3/- as transfer fee. He also stated that he did not give any papers or documents to the agent, Mrs. Advani. Raghuvir Singh also stated that he had orally asked Mrs. Advani to get the insurance policy transferred in his name as he had purchased truck No. R.J.Z. 1884. But it was not stated by Raghuvir Singh that he had submitted a written application for seeking transfer of the insurance policy from the name of Hundaldas Daulatram to his name, after the truck had been purchased by him. The Tribunal thus appears to be right in holding that so far as the evidence led by the claimants is concerned, it is absolutely vague and indefinite on the question as to whether the insurance policy was transferred to the name of Raghuvir Singh or that there was any express or implied consent of the Insurance Company with regard to the transfer of the insurance policy.
11. Further the mere fact that the registration of the vehicle was transferred from the name of Hundaldas Daulatram to that of Raghuvir Singh, could not lead to any conclusion that the insurance policy must have stood transferred to the name of the purchaser. I am unable to agree with the view taken by the Calcutta High Court in Bir Singh's case (AIR 1956 Cal 5551 that a presumption could be raised about the consent of the Insurance Company to the transfer of the insurance policy in the name of the purchaser merely from the fact that the vehicle stood registered in the name of the purchaser. Madhya Pradesh High Court in Gyarsi-lal Jagannathprasad Mor v. Pandit Sitacharan Dubey AIR 1963 Madh Pra 164 dissented from the view taken by the Calcutta High Court in Bir Singh's case in this matter. It was observed by the Madhya Pradesh High Court in Gyarsilal's case as under (at p. 172):--
'It was also observed therein that this presumption must be strengthened by the fact that the Regional Transport Authority had registered the car after it was sold, and that he would not have done this unless and until it had been shown to its satisfaction that there was a subsisting policy in respect of the vehicle. The circumstances in which the Calcutta High Court drew the inference of the assent of the Insurance Company to the transfer of the policy are no different from those in which we have drawn a similar inference in the present case. But we do not find ourselves in agreement with the view expressed by the Calcutta High Court that the registration of a vehicle by the Regional Transport Authority is also an indication of the fact that a subsisting policy in respect of the vehicle registered exists, and that, therefore, it should be laken that the insurer assented to the transfer. Surely, no presumption or adverse inference can be drawn against a party by the conduct of another.'
12. The same view was taken by the Punjab High Court in Des Rai Pahwa v. Concord of India Insurance Co. Ltd. Calcutta AIR 1951 Puni 114, wherein it was held that a motor insurance policy did not remain in force if there is a change of ownership of vehicle insured unless there was an agreement to the contrary in the policy.
13. A Division Bench of the Madras High Court also took the same view in M. Bhoopathy v. M. S. Vijayalaksmi AIR 1966 Mad 244 and held that Section 96 (1) of the Motor Vehicles Act pre-sup-poses and proceeds on the basis that there was a subsisting policy of insurance and that in the absence of an express stipulation to the contrary in the policy, the continued ownership of the vehicle with the insured was necessary for the subsistence of the insurance policy. Once the vehicle which was the subject matter of the insurance policy was transferred and the vehicle was parted with by the insured by sale or transfer or otherwise, the insurance policy automatically lapsed.
14. Shawcross on Motor Insurance (Second Edition) has stated that an insurance policy is automatically avoided when the assured dies or becomes bankrupt or parts with the insured vehicle. In all such cases the insurance policy comes to an end and cannot be revived. In Rogerson v. Scottish Automobile and General Insurance Co. Ltd. (1931) 48 TLR 17 Lord Buckmaster expressed the following views in this matter in the House of Lords:--
'To me this policy depends upon the hypothesis that there is, in fact, an insured car. When once the car, which is subject of this policy is sold, the owner's rights in respect of it cease and the policy so far as the car is concerned is at an end.'
15. The aforesaid observations of Lord Buckmaster were also quoted with approval in South India Insurance Co. v. Lakshmi AIR 1971 Mad 347. Rama-nujam J., in the aforesaid case, observed that where a person states in the proposal for insurance that he was the owner of the vehicle to be insured and that the vehicle is insured on that basis, the insurer will be entitled to avoid the liability if the owner of the vehicle has transferred the same to another person before the accident.
16. The contract of insurance comes to an end on the transfer of the vehicle and the policy of insurance cannot be kept alive, so far as the claims of third parties are concerned, on the transfer of ownership of the vehicle The contract of insurance subsists until the insured remains the owner of the vehicle unless there is any exception or condition to the contrary contained in the insurance policy. Subsistence of the insurance policy is a basic thing, on which even a third party has to found a claim.
17. Again, in South India Insurance Company v. P. C. Mishra AIR 1973 Orissa 166, the principles laid down in the two decisions of the Madras High Court in Bhoopathy (AIR 1966 Mad 244) and Madras Motor Insurance Company's (AIR 1961 Mad 208) cases were accepted and the following observations were made (at p. 167):--
'It is well settled that a conlract of insurance is nothing but a contract, of indemnity. The policy issued is with reference to a specified car, owned by the policy-holder and consequently the policy will remain effective while he retains an interest in that car. An insurance policy being a contract of personal indemnity, the insurers cannot be compelled to accept responsibility in respect of a third party who may be quite unknown to them. Therefore, the motor car specified in the policy, being the subject matter of the insurance, on the insured parting with it by way of sale or transfer of ownership, he can no longer have any insurable interest to which the policy in his favour can relate and continue to have force. The basis of the contract of insurance is not merely the person in whose favour an insurance policy is effected, but also the specified car to which the indemnity relates, as will be clear from the details required of the car which are not (sic) in the schedule to the policy. It is with reference to those details and the history of the vehicle and its owner that the premium payable on the insurance is determined and the contract is founded. It, therefore, follows that in the absence of any express stipulation to the contrary in the policy, the moment the insured parts with the car, the policy relating to it lapses.'
The same view was also taken by the Delhi High Court in the cases of Nanu Mal v. Inder Singh 1971 Acc CJ 88 and Oriental Fire & General Insurance Co. v, Vimal Rai AIR 1973 Delhi 115, wherein it was held that the liability of the Insurance Company lapsed on the transfer of the motor vehicle, unless there is a clear stipulation to the contrary in the insurance policy and that the benefit of the insurance policy is not available to the transferee without express agreement with insurance company.
18. The Punjab and Haryana High Court also took the same view in Oriental Fire and General Insurance Co. v. Mrs. Meena Sharma 1976 TAC 105 and held that the transfer of ownership of the vehicle puts an end to the liability of the insurance company in respect of a third party, unless there is a contract to the contrary contained in the insurance policy.
19. In Roshan Lal Bhalla v. Sudesh Kumar AIR 1968 J and K 2, it was held that the law on the subject is absolutely clear that when there is a change or transfer of ownership of a vehicle, then the liability under the policy is extinguished unless the change is brought to the notice of the insurer and is accepted by it. It was observed in the aforesaid case that in absence of an assignment of insurance policy in favour of the purchaser of the vehicle and the owner retaining no interest therein, if the vehicle is involved in an accident causing damage to it or injury to other persons, the insurance company is not liable in the absence of a specific provision in the insurance policy. The same view was again taken by the Orissa High Court in P. K. Panda v. Smt. Premlata Choudhary 1960 TAC 390 : (AIR 1980 Orissa 102) and it was held that unless the transfer of ownership is notified to the insurance company and is accepted by it before the accident, the insurance company cannot be compelled to indemnify to a third party, in a case of an accident, because the policy of insurance is a contract of personal indemnity, Roshan Lal Bhalla's case (AIR 1968 J & K 2) was relied upon and it was observed that in the absence of specific stipulation in the contract or the policy of insurance, the moment the insured parted with the vehicle, the policy relating to it lapses, unless the transfer of ownership is reported to the insurance company and is accepted by it before the accident takes place.
20. A Division Bench of this Court in M/s. Automobile Transport Pvt. Ltd. v. Dewa Lal, 1977 Raj LW 115 : (AIR 1977 Rai 121) observed as under (at p. 130):--
'Several authorities were then cited before us in this respect and a consensus appears to be that upon the transfer of a vehicle, the policy comes to an end. It has been held that in the absence of stipulation to the contrary, an insurance policy, which is a personal contract of indemnity lapses upon the transfer of the motor vehicle and the benefit of the policy is not available to the transferee without any express agreement with the insurance company.'
21. Thus, the law on the subject is well established by a long series of decisions of the various High Courts, some of which I have endeavoured to refer to above and it is no longer open to doubt that the contract of insurance is a personal contract of indemnity and the same comes to an end and the insurance policy lapses as soon as the ownership of the motor vehicle, covered by the said policy of insurance, is transferred to another person by sale or otherwise or the insured dies or becomes bankrupt. If the insurance company is sought to be made liable, even in spite of the transfer of the vehicle to a third person, then it must show that the fact of transfer was conveyed to the insurance company and was accepted by it, as has been held in Roshan Lal Bhalla's case (AIR 1968 J & K 2). If on the date when the accident took place, the property in the vehicle vested in the purchaser, how could the insurance company be made liable on the basis of a contract of indemnity entered into with the seller? The circumstance that the purchaser had not paid part of the purchase price is irrelevant for the purpose, because the property in the vehicle had passed on to the purchaser and the purchaser used vehicle as the owner thereof.
22. Then it was argued on behalf of the respondents that there was an implied consent on behalf of the insurance company to the transfer of interest in the insurance policy in favour of Raghu-veersingh, as already mentioned above, It is not in dispute that truck No. R.J.Z, 1884, earlier belonging to Hundal Dass Daulat Ram was registered before the accident took place, with the Motor Owners Insurance Company for the period from Dec. 7, 1964 to Dec. 6, 1965. The aforesaid vehicle was transferred by Hundal Dass Daulatram to Raghu-veersingh on March 31, 1965. An accident took place on Dec. 4, 1965. The truck in question was insured in the name of Raghuveersingh from Jan. 21, 1966 to Jan. 20, 1967 with the same insurance company. The Motor Accident Claims Tribunal has relied upon the fact that the insurance company granted a no claim bonus to Raghuveersingh of 20% along with 40% special discount, while issuing the new insurance policy in his favour on Jan. 21, 1966, as a circumstance to prove the implied consent of the insurance company to the transfer of interest in the insurance policy from Hundal Dass Daulat Ram to Raghuveersingh and it was observed that the Regional Transport Authority would not have recognised the transfer of the vehicle in favour of Raghuveersingh unless and until it was shown to its satisfaction that a subsisting policy of insurance existed in respect of the vehicle. Beer Singh's case (AIR 1956 Cal 555) was relied upon for this view. I have already expressed my respectful disagreement with the view taken by the Calcutta High Court in Beer Singh's case, as mere transfer of the registration of the truck in the name of Raghuveersingh, before the accident took place, could not give rise to any presumption that there was in existence a subsisting insurance policy. Raghuveer-singh, when examined as D. W. 1, stated that he did not even remember as to whether he paid the transfer fees of Rs. 3/- to the insurance company. If the insurance policy would have been transferred in favour of Raghuveersingh, then an endorsement would have been made by the insurance company in favour of Raghuveersingh, on the already existing policy and then the said policy must have been in the custody of Raghuveersingh, But the insurance policy has not been produced nor it has even been alleged that any endorsement was made thereon regarding transfer of ownership. The mere fact that a no claim bonus was allowed by the insurance company to Raghuveersingh cannot lead to the inference that the truck must have been insured in favour of Raghuveersingh during the previous year as well. It may be pointed out in this connection that admittedly the earlier insurance policy was for the period from Dec. 7, 1964 to Dec. 6, 1965 in favour of Hundal Dass Daulatram. The new Insurance policy in favour of Raghuveersing undoubtedly began from Jan. 21, 1966 and remained in force up to 20th Jan. 1967. Thus, after the lapse of the earlier insurance policy and before the insurance of the new insurance policy, there was an interval of almost a month and a half. In case a no claim bonus is given only if the vehicle is insured with the same insurance company during the earlier year, then Raghuveersingh would not have been entitled to a no claim bonus as the new insurance policy was issued after an interval of 1 1/2 month from the lapse of the earlier policy and there was no continuity between them. The Tribunal has observed that a no claim bonus did not follow the vehicle. It is not at all clear from the evidence on record as to why the insurance company granted a no claim bonus to Raghuveersingh while giving a new insurance policy to him in respect of the truck in question for the period from Jan, 21, 1966 to Jan. 20, 1967, An affidavit was filed before the Tribunal by Shri S. G. Kale, Resident Officer of the Motor Accident Insurance Company Ltd. dated April 25, 1970 and of Shri S. T. Vaidya dated March 14, 1970, in which it was asserted that no application was ever made by Raghuveersingh between March 31. 1965 to Jan. 31, 1966 regarding the transfer of the existing insurance policy to his name, nor any amount was deposited with the Ajmer Branch of the company by Raghuveersingh in respect of transfer fee regarding the insurance policy, nor any transfer of the said policy was ever effected in favour of Raghuveersingh. Although these two affidavits were filed before the Tribunal on behalf of the appellant company, but no counter affidavit was filed on behalf of the respondents. The Tribunal has drawn adverse inference against the insurance company on account of the non-production of Mrs. S. Lal Adwani, agent and Mr. Kulkarni, who was looking after the Aimer Branch of the insurance company. However, two affidavits of Shri S. G. Kale and Shri S. T. Vaidya, Regional Manager of the insurance company at New Delhi were filed and the latter after looking into the records of the insurance company pertaining to the Ajmer office has stated that Kulkarni, who was the Branch Manager of the company at Ajmer at the relevant time, had left the service of the company and his whereabouts were not known.
23. In my view, the best evidence if the insurance policy would have been transferred in the name of the purchaser of the truck, Raghuveersingh, would have been the original insurance policy itself, as after the alleged transfer there should have been an endorsement on the said policy evidencing the transfer, but the same has been withheld and the insurance policy has not been produced. Merely an oral intimation on behalf of Raghuveersingh to the agent of the company regarding the alleged transfer of the vehicle in his name could not be considered as an implied consent on the part of the insurance company, as the transfer of the policy could not be effected unless the transfer fee was deposited and a letter in writing was sent by the transferee to the insurer. In the state of evidence as it exists on the record of this case, it is difficult to hold that a proper intimation in writing was given to the insurance company by Raghuveersingh for the transfer of the insurance policy to his name and there is no material on record to hold that the insurance company had impliedly agreed to transfer the said insurance policy in favour of Raghuveersingh for the remaining period. It must, therefore, be held that the insurance policy lapsed on the transfer of the truck in question from Hundal Dass Daulatram to Raghuveersingh in the end of March, 1965.
24. In the result, the appeal suc-cpeds and the award passed by the Motor Accidents Claims Tribunal as against Motor Owners' Insurance Company is set aside. The claim made by the injured against the insurance company fails and hence the same is dismissed as against the insurance company. It must be said that I have to come to the aforesaid conclusion with much regret, as in spite of the existence of the statutory provisions for compulsory insurance, person injured in motor accidents are left with meagre prospects of obtaining compensation, without any fault of their own. The people at large believe, and with reason, that the Motor Vehicles Act ensures to them that if they have the misfortune of being injured by a driver's negligence, they would at least get compensation for the injury received or their dependents would get reasonable compensation, if a person is killed in such an accident, knowing little about the pitfalls.
25. The award, however, is maintained as against Raghuveersingh and Shakti Singh. In the facts and circumstances of the case, the parties are left to bear their own costs.