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New India Assurance Company Ltd. Vs. Smt. Sheela Rani and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Insurance
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 29 of 1987
Judge
Reported in1989(2)WLN256
AppellantNew India Assurance Company Ltd.
RespondentSmt. Sheela Rani and ors.
DispositionAppeal dismissed
Cases ReferredMadinent Komadiah and Ors. v. Yaseen Fatma and Ors.
Excerpt:
motor vehicles act, 1939 - sections 96(2), 103--liability of insurance company--held, insurance company can avail defences as available in section 96(2); and (ii) insurance company had information of transfer of vehicle and it was liable to pay compensation;the appellant company can take only such defences as are available to it under the provisions of sub-section (2) of section 96 of the act and no more. apart from this, in the present case it did have the information of the transfer of the vehicle and was, therefore, liable to compensate the claimants as per the award given in the matter.;appeal dismissed with costs. - - because such defences are not contemplated under section 96(2) of the act it was further held that so far as the question of plea of lapse of policy is concerned, it..........the date of application and cost of the appeal with entire liability for payment on the appellant insurance company.4. the only question pressed by the learned counsel shri b.p. agrawal appearing for the appellant is regarding a substantial question of law involved in this appeal as to 'whether it is not open to the insurance company to defend the action against it arising out of a motor accident covered by the insurance policy of a motor vehicle in the name of insured owner who has transferred the vehicle prior to the date of accident on the ground that its contractual liability to indemnity the transferee of the vehicle as he was left with no insurable interests from the date of the transfer effected in his favour an the insurance policy?' it is submitted by the learned counsel that.....
Judgment:

Inder Sen Israni, J.

1. This Special Appeal under Section 18 of the Rajasthan High Court Ordinance has been filed against the judgment of learned Single Judge dated September 3, 1986 whereby the award passed by the Motor Accident Claims Tribunal, Jaipur, dated 18-2-1982 in claim case No. 291/77 was modified.

2. Brief facts giving-rise to the present appeal are that a claim petition for compensation on account of death of Moti Lal husband of respondent No. 5 and father of respondent No. 2 due to accident that occurred on 10-5-1977 at Jaipur while the deceased was going on his Suvega auto-cycle, was filed. It is alleged that the accident took place on account of rash and negligent; driving of Fiat Car which was at the relevant time driven by respondent No. 5.

3. During the course of proceedings before the Tribunal, Smt. Mooli Devi w/o Kanhaiya Lal respondent No. 3 mother of deceased applied that she may also be impleaded as an applicant. This prayer was granted and she was added as an applicant. Learned Tribunal gave an award in a sum of Rs. 73,000/- by way of compensation with 12% interest pa, in case the amount was not paid within 2 months. Three appeals against the said award were Sled in this Court, which were heard by the learned Single Judge and by the impugned order, the amount was enhanced to Rs. 1,23,000/- with 12% interest from the date of application and cost of the appeal with entire liability for payment on the appellant Insurance Company.

4. The only question pressed by the learned Counsel Shri B.P. Agrawal appearing for the appellant is regarding a substantial question of law involved in this appeal as to 'whether it is not open to the Insurance Company to defend the action against it arising out of a motor accident covered by the insurance policy of a motor vehicle in the name of insured owner who has transferred the vehicle prior to the date of accident on the ground that its contractual liability to indemnity the transferee of the vehicle as he was left with no insurable interests from the date of the transfer effected in his favour an the insurance policy?' It is submitted by the learned Counsel that in the instant case the motor vehicle involved in the accident, Fiat Car No. RSM 9701 was insured with the appellant insurance company by the owner thereof, namely, respondent No. 6 Dwarka Prasad and that the period of insurance commenced from 16-6 1976 and was to expire on 15-6-1977. It was found as a fact that the said vehicle was sold by respondent No. 6 Dwarka Prasad to respondent No. 4 Smt. Santosh Rani on 18-61976 just 2 days after the commencement of the policy and was even transferred in the record of Regional Transport Authority on 24-6-1976. The accident took place on 10-5-1977. It is contended by the learned Counsel that compliance of the provisions of Section 103-A of the Motor Vehicle Act, 1939 (here in after called as 'the Act') was not made by the transfer and the certificate of insurance was neither transferred to the name of transferee nor any fresh policy of insurance was taken out. This was challenged in the appeal before the learned Single Judge by the appellant company, but according to the learned Counsel this matter was not considered because the learned Single Judge was of the opinion that the liability of the Insurance Company would subsist irrespective of the transfer since it was admitted that neither the policy was cancelled nor the premium for the period after the alleged transfer was refunded, more so because the learned Single Judge was of the opinion that the above defence was not open to the Insurance Company appellant under the provisions of Section 96(2) of the Act. It is therefore, contended by the learned Counsel that in the circumstances of the case the insurance policy in question stood lapsed before the date of accident on account of sale of the vehicle by the original owner respondent No. 6 to respondent No. 4 and as such the appellant company was not liable for any compensation and that inspite of the provisions of Section 96(2) of the Act, the appellant company was entitled to raise this defence in opposing the claim of the appellant. It is also contended by the learned Counsel that the appellant company could not comply with the provisions of Section 103-A of the Act in view of the fact that the procedure prescribed in Sub-section (1) of Section 103-A was not followed by the respondent No. 6 as he did not apply in the prescribed form to the appellant company for transfer of the certificate of insurance and policy described in the certificate in favour of the person to whom the motor-vehicle was purposed to be transferred. It is contended that the information given by the transferee respondent No. 4 to the Insurance Company regarding purchase of vehicle should not have been relied upon by the trial court and even otherwise the information should have been given by the transferor respondent No. 6 as laid down in Section 103-A of the Act and not by the respondent No. 4 as alleged to have been done in this case. It is therefore, urged that the appellant company cannot be held responsible for not following the procedure of sub sections (2) & (3) of Section 103-A of the Act.

5. Our attention has been drawn to the case of United Fire and General Insurance Company Ltd. and Ors. v. Chenuamma and Ors. AIR 1982 Karnataka 1, in which it was held that a policy of insurance lapses when the vehicle covered by it is transferred without notifying the insurer in the prescribed from under Section 103-A of the Act The insurance being contract of indemnity when the insurer is no longer owner of the vehicle, the contract fails and lapses. Such a contention is open to the insurer in a claim against the insurance company. In such a case the question of cancelling the policy does not arise as it comes only when there is supression of material facts or fraud practiced on the insurer.

6. The case of Padma Devi and Ors. v. Gurbux Singh and Ors. 1973 ACJ 460 was a matter regarding transfer of vehicle, which was covered by the permit. In this case the registered owner contended that he had sold the vehicle prior to the accident. How ever, it was found by this Court that the essential elements of sale as required under law were not proved. Therefore, the plea of sale was repelled. The truck in question was used as a transport vehicle and was covered with a permit granted to one Harcharan Lal & Sons. On the date of accident, this was on the road. The mere fact that Harcharara Lal & Sons had transferred the possession of vehicle to Brijendra Singh would not confer any title on the transferee as it had not been alleged or brought on record that the transfer was done after the permission of transport authority granting permission as is required under the provisions of the Act How ever, in this case it was held by this Court that Section 92(2) of the Act has specified the defences that are open to the insurance company in a claim by 3rd party. The specification of defences is exhaustive and it is not open to an insurance company to arise any other defence. The only circumstances in which the company can take up the above defence is that the policy has been cancelled in accordance with the provisions of Section 96(2)(a).

7. The case of Shanti Lal Mohan Lal and Ors. v. Ahir Bawanji Malde and Ors. 1985 ACT 505 was a case in which the ownership of the vehicle was transferred on 2-3-1978, which met with an accident on 5-3-1978 Neither any intimation of the transfer was given to the insurer nor its consent was obtained. The change of ownership was notified to the insurer after the accident and there-after the policy became effective in favour of the transferee on 15-5-1978. The question arose whether the insurer is entitled to avoid liability against 3rd party risk on the plea that the insurer had sold the vehicle covered by the insurance policy before the date of accident without intimation to the insurer. It was held that there being no subsisting contract between the insurance company and the transferee the Insurance Company was not liable to indemnify the transferee and therefore, the claimants were not entitled to recover any compensation from the Insurance Company. It was contended by the claimants that the insurance policy is with respect to a particular vehicle and transfer of its ownership during the subsistence of the policy is matter of no relevance or consequence and the Insurance Company cancel get rid of its liability to a 3rd party on this ground. In support of this arguments, reliance was placed on New Asiatic Insurance Company v. Pessumal Dhanamal Aswani 1958-65 ACJ 559 SC and Haji Zakaria v. Naoshir Cama 1976 ACJ 320 (AP). The Allahabad High Court concurred with the case of Haji Zakaria and distinguished the case of New Asiatic Insurance Company and held that the Insurance Company was not liable to indemnify the transferee as there was no subsisting contract between the Insurance Company and the transferee.

8. Learned Counsel Shri G.C. Mathur appearing for the claimants-respondents, on the other hand, contends that what ever defences are available to the Insurance Company are by virtue of the provisions of Section 96(2) of the Act. Apart from these provisions, the Insurance Company cannot claim any further defences and in fact would not be entitled to put any defences in absence of Section 96(2) of the Act. It is contended that if the interpretation as is sought to be put to the provisions of Sub-section (2) of Section 96 of the Act is accepted, it will widely extend the scope of the defence allowed to the Insurance Company under the provisions of Sub-section (2) of Section 96 of the Act. The legislature in its wisdom thought fit only to allow particular type of defences as enumerated under Sub-section (2) of Section 96 of the Act and, therefore, the Insurance Company is not entitled to any other defences not enumerated in Sub-section (2) of Section 96 of Act.

9. Our attention has been drawn to the case of British India General Insurance Company Ltd. v. Capt. Itbar Singh and Ors. : [1960]1SCR168 in which while discussing the scope of Section 96(2) of the Act, it was held by the Apex Court that apart from the statute the insurer has no right to be made a party to the action by the injured person against the insured causing injury. Sub-section (2) of Sec 96 how ever gives him the right to be made a party to the action and to defend it. The right, therefore, is created by the statute and its content necessarily depends one the provisions of the statute .The insurer while defending 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 the liability provided for in Sub-section (2) is through the defences mentioned therein. 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. It was further observed that the court cannot add words in a section unless the section as it stands is meaningless or of doubtful meaning The Apex Court, therefore, did not agree with the argument that the only word that has to be added is the word 'also' after the word 'ground'. It was held that the additions suggested will make the language used unhappy and further effect a complete change in the meaning of the words used in sub-section

10. It was pointed out by the learned Counsel that while this point was agitated before the learned Single Judge, reliance was placed by the appellant Insurance Company on the case of Madinent Komadiah and Ors. v. Yaseen Fatma and Ors. 1986 ACJ (1) FB. In this cases also a similar question arose and the case law on this question was examined in details. It was held that the Insurance Company cannot raise the defence that the policy had lapsed because of the sale of vehicle; it cannot contend that the accident happened due to the negligence on the part of the transferee and the Insurance Company was not liable; it cannot contend that its contract is with transferor and it is not responsible to redeem the compensation payable, by the transferee; because such defences are not contemplated under Section 96(2) of the Act It was further held that so far as the question of plea of lapse of policy is concerned, it is clearly one touching the merits of the case the barred under Section 96 (2) of the Act. While discussing the question, Kodandaramayya, J. further observed as under:

When the policy of insurance obtained by the original owner of the vehicle is composite one covering the risks for his person, property (vehicle) and the third party claim, on passing of title the transferee cannot enforce his claim in respect of any loss or damage to the person and the vehicle unless there is a novation So far as the third party risk is concerned, the proprietory interest in the vehicle is not necessary and the principal liability continues till the transferor discharges the statutory obligation under Sections 29-A and 31 read with Section 94 of the Act. Till the complies with the requirement of Section 31 of the Act the public liability will not cease and that constitutes the insurable interest to keep the policy alive in respect to the third party risks. It must be deemed that the transferor allowed the purchaser to use the vehicle in public place in the said transitional period and accordingly till the compliance of Section 31, the liability of the transferor subsists and the policy is in operation so far as it relates to the third party risks.

11. It may be pointed out that the provisions of the Act make it compulsory for the owner of the vehicle to get it insured in respect of 3rd party before playing the same on the read with a view to protest the interest of those who use the road and to ensure that the compensation in case of any accident should not depend upon the financial capacity of the person who drives the vehicle or owns the vehicle involved in the case. Therefore even though the contract is between the insurer and the owner to indemnify the injured against any claim that may arise from any accident, this is a beneficial legislation made with a view to protect the rights of 3rd parties who may be involved in the accident. In this view of the matter, it will not be proper to give narrow interpretation to the provisions of Section 96(2) of the Act so as to defect the very purpose for which the same was enacted. The head-note of Chapter-Ill of the Act is 'Insurance of Motor Vehicles against the 3rd party risks'. The clearly indicates that the provisions of insurance of vehicle between the insurer and owners are meant for the benefit of 3rd party who may be involved in any accident. Section 94 lays down that no person shall use or allow any person to use a motor vehicle in a public place unless a policy of insurance against 3rd party risk is in force complying with the requirements of this Chapter. Section 95 lays down the requirement of the insurance policies issued in this respect. Therefore, the owners and the insurer do not have complete liberty to put conditions according to their choice but the same have been laid down under this section with a view to cover the liability, which may be incurred on account of death or bodily injury to any person or damage to any person or damage to any property of a 3rd party caused by or arising out of the use of a vehicle in public place etc. It is thus abundantly clear that these provisions have been enacted with a view to protect and compensate 3rd party, who is not a party to the insurance policy between the insurer and owner but the benefit of such insurance passes to the 3rd party who may be involved in the accident. Therefore, when a vehicle is transferred and the transferor does not inform the Insurance Company as provided under Section 31 of the Act, it will be deemed that the transferor has allowed the purchaser to use the vehicle in the public places on his behalf and the policy is in operation so far as it relates to 3rd party risk.

12. In the case of New Asiatic Insurance Co. (supra) their Lordships of the Supreme Court observed as under:

(12). Chapter-VIII of the Act, it appears from the heading, makes provision for insurance of the vehicles against third party risks, that is to say, its provisions ensure that third parties who suffer on account of the user of the motor vehicle would be able to get damages for injuries suffered and that their ability to get the damages will not be dependent on the financial condition of the driver of the vehicle whose user led to the causing of the injuries. The provisions have to be construed in such a manner as to ensure this object of the enactment.

It was further held that once the Company had undertaken the liability to 3rd parties risks, incurred by the persons specified in the policy, the 3rd party's right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the police.

13. Coming to the facts of the present case, the Tribunal gave a finding that the transferee did give a notice of the sale of vehicle to the Insurance Company but even though the transferor also came in witness box and stated that he had verbally informed the Insurance Company regarding the sale of the vehicle, the Tribunal did not accept this plea. How ever, it did accept that the notice of transfer was given to the Insurance Company by the transferee. The documentary evidence in support of this contention was also produced before the Tribunal. Apart from the legal position as discussed above, in the present case it is clear that a notice of transfer was given to the Insurance Company by the transferee and Section 133-A of the Act cannot be interpreted in such a narrow way so as to hold that the notice must necessarily be given by the transferor alone to the Insurance Company. What is required is that the information of transfer should be passed to the Insurance Company. This has been done by the transferee.

14. The objection raised by the learned Counsel for the appellant is that information has to be given in the prescribed from to the Insurance Company. This is rather too technical objection and the fact that the intimation of the transfer was given to the Insurance is enough and it is not necessary that it may be given in the prescribed form even though the Insurance Company received the information, it took no steps as per sub-sec (2)) Section 108-A of the Act, if it wanted to refuse to transfer the certificate of insurance as in such a case it was incumbant on the appellant company to refund the amount, if any, for the unexpired term of the policy and also to notify the same as required under the provisions of Section 105 of the Act to the registering Authority concerned regarding cancellation or suspension of the policy Therefore, it does not lie in the mouth of the appellant company to now resist the claim on the ground that it had not been informed regarding the transfer of the vehicle.

15. We are, therefore, of the opinion that the appellant company can take only such defences as are available to it under the provisions of Sub-section (2) of Section 96 of the Act and no more. Apart from this, in the present case is did have the information of the transfer of the vehicle and was therefore, liable to compensate the claimants as per the award given in the matter.

16. Before parting with the case, it may be observed that the provisions regarding compensation to the injured are piece of social legislation enacted to protect the interest of the user of the road who are unfortunately involved in the accidents. It will be therefore, appreciated that the Insurance Companies who are now nationalized do not enter into unnecessary prolonged litigation and rather adopt broad out look to compensate the helpless victims of the accidents

17. The result of the above discussion is that this appeal fails and is here by dismissed with costs.


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