Skip to content


Hema Ramaswami Vs. K.M. Valarance Panjani and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 526 of 1977
Judge
Reported inAIR1981Mad174; [1983]54CompCas600(Mad)
ActsMotor Vehicles Act, 1939 - Sections 31, 96 and 110-B
AppellantHema Ramaswami
RespondentK.M. Valarance Panjani and ors.
Appellant AdvocateK. Raghothaman, Adv.
Respondent AdvocateS. Sampathkumar and ;A.P.S. Kasturi Rangan, Advs.
Cases ReferredState of Punjab v. Brij Mohan Singh
Excerpt:
.....and negligent driving of lorry by its driver - driver was employee of second respondent - ownership of lorry stood transferred in favour of second respondent by first respondent - but registration certificate and permit relating to vehicle had not been transferred though sale had been duly intimated to secretary state transport authority - vehicle having been transferred long before accident transferor and insurance company with which vehicle had been insured by first respondent cannot be made liable for accident which took place long after said transfer - vehicle in possession and custody of second respondent's driver - held, second respondent liable to pay compensation. - - but however, the appellant is not satisfied with the award passed against the second respondent alone and..........mohamed mustafa badsha, : air1961mad208 ananthanarayanan, j., as he then was, took the view that a policy of insurance did not lapse the moment the insured parted with the ownership of the insured vehicle and that notwithstanding such transfer of ownership, the insurer having regard to the terms of section 96 of the motor vehicles act could not escape its liability in respect of the third party risks. this view was not accepted by the division bench in bhoopathy v. vijayalakshmi, : air1966mad244 referred, to above. the bench disagreed with the view but agreed with the view expressed by goddard, j., in tattersall v. dryadale 1935 all er 112. in that case, there was a clause in the policy extending the cover against third party risks to the temporary user by the insured of another car, and.....
Judgment:

Ramanujam, J.

1. This Civil Miscellaneous Appeal is directed against the award of the Motor Accidents Claims Tribunal, Cuddalore in so far as it is against the appellant, who is the fourth claimant before the Tribunal.

2. On 9-7-1971 at about 6.15 p.m. near Vellar Bridge Thozhudur, South Arcot District on the Madras Trichy Main Road, lorry bearing registration number PYK 1249, driven by one Veerasami collided with an Ambassador Car MSC 7340, driven by one Ramasami, the husband of the appellant. As a result of the said collision, the said Ramasami sustained multiple grievous injuries and he succumbed to those injuries on the way to the hospital. The driver of the car, who was also traveling with the said Ramasami also sustained injuries. On the ground that the said collision was due to rash and negligent driving of the driver of the lorry, the dependents, the mother, wife and two children of the deceased Ramasami filed a claim before the Claims Tribunal claiming a compensation of Ra 2,00,000/-. The first claimant was the mother and the claimants 2 and 3 were the children of the deceased by his first wife and the fourth claimant-was his second wife.

3. The said claim was resisted by the first respondent, the original owner of the lorry and the third respondent, the Insurance Company with which the lorry had been insured. The second respondent, who was the transferee of the lorry some time before the accident however remained ex parte. The stand taken by the respondents I and 3 in -the claim petition before the Tribunal was that they are not, liable to meet the claims for compensation, that the lorry had been transferred in favour of the second respondent on 17-4-1971 and the accident having taken place on, 9-7-1971, neither the first respondent, the original owner of the vehicle nor the third respondent, Insurance Company are liable to meet the claim and that it is only the transferee who has become the owner of the vehicle is liable to meet the claim.

4. In a reply statement, the claimants stated that the vehicle alleged to have been sold by the first respondent to the second respondent was false that on enquiries it was learnt that the first respondent was the owner of the vehicle at the time of the accident and that the certificate of registration and the public carrier permit stood in the name of the first respondent at the relevant date. If at all a sale had taken place, it should be only long subsequent to the date of the accident.

5. The Tribunal after analysing the evidence adduced by the parties held that the accident was caused by the rash and negligent driving of the lorry by its driver, who is an employee of the second respondent and that since the Ownership of the lorry stood transferred to the second respondent at the time of the accident, he is liable to pay compensation in respect of the accident. The Tribunal also specifically found that the lorry which caused the accident had been transferred in favour of the second respondent by the first respondent on 17-4-1971; but the registration certificate and the permit relating to the vehicle had not been transferred though the sale had been duly intimated to the Secretary, State Transport Authority, Pondicherry on 20-4-1971.

6. On the quantum of compensation, the Tribunal held that the deceased would have earned at least Rs. 1,200/- per month and his total earning for the period of 28 years would come to Rs. 4,03,000/-. But taking into account the benefit of lump sum payment, it awarded a compensation of Rs. 1,00,000/-for all the claimants and the appellant was held to be entitled to Rs. 50,000/-, out of the said amount of Rs. 1,00,000/which has been awarded as compensation. The fourth claimant has alone appealed and other claimants have not agitated the matter further.

7. In this appeal filed by the fourth claimant, the findings of the Tribunal exonerating respondents 1 and 3 from liability has been challenged. The compensation awarded by the Tribunal has also been attacked as being too low and inadequate having regard to the status of the deceased and the income he was earning while alive.

8. Thus, the two questions that arise for consideration in this appeal are:

1. Whether the respondents 1 and 3 are rightly exonerated? and

2. Is the compensation of Rs. 1,00,003/awarded by the Tribunal inadequate?

9. In this appeal also, the owner of the lorry, the second respondent remains exparte. But however, the appellant is not satisfied with the award passed against the second respondent alone and seeks an award as against the first and. third respondents as well. It is not in dispute that the vicarious liability, in respect of the accident has to be determined with reference to the ownership of the vehicle on the date of the accident. In this case, there is no dispute that the lorry PYK 1249 belonged originally to the first respondent. On 8-4-1971, there had been an agreement between the first respondent and the second respondent to sell the lorry and on 17-4-1971, the sale transaction had been completed and the vehicle was in fact put in possession of the second respondent by the first respondent. On 20-4-1971, the first respondent had reported about the sale of the Vehicle to the State Transport Authority, Pondicherry. The said report has been, marked as Ex. R. 1, in this case. Ex. R. 1, shows that it was received by the Regional Transport Authority on 21-4-1971.

It also shows that the application filed by the parties for transfer of registry of the vehicle in the name of the second respondent was returned by the Regional Transport Office on 12-5-1971, and no steps were taken for transferring the registry till 9-7-1971, the date, of the accident. In view of the fact that the transfer had not been ordered by the Regional Transport Authority, the Public carrier -permit of the lorry, stood in the name of first respondent on the date of the accident and the certificate of registration also stood in the name of the first respondent, the original owner, even after the transfer. The question is whether under those circumstances the transferor and his insurer are liable in respect of the accident which had taken place subsequent to the transfer of the ownership of the vehicle but before the transfer is recognized by the Regional Transport Authority.

10. According to Mr. V. P. Raman, the learned counsel for the appellant, the first and the third respondents would continue to be liable under the policy until the first respondent transferred the vehicle in the name of the second respondent within the meaning of law and as the transfer was admittedly not effected in the records of the Regional Transport Authority on the date of the accident, the Insurance Company would continue to be liable under the policy in dealing with this question, the Tribunal relying on a decision of Division Bench of this Court in Bhoopathy v. Vijayalakshmi, : AIR1966Mad244 held that notwithstanding the fact that the registry and the permit of the vehicle had not been transferred on the date of the accident, the transferor cannot be made liable if the vehicle had in fact been transferred to the transferee and that if the accident had happened after the vehicle had been transferred and when it was in the custody and possession of the transferee, the transferee alone is liable to meet the clam for compensation. The learned counsel for the appellant contends that the said decision relied upon by the Tribunal has no application to the facts of this case especially when it is found in the case before that Court there was in fact a transfer of registry of the vehicle even before the date of the accident.

It is true in Bhoopathy v. Vijayalakshmi, : AIR1966Mad244 it has been found that the transfer of the vehicle was duly recognised by the Regional Transport Authority; but the transferor did not inform the Insurance Company about the transfer and those facts are not in pari materia with the facts of the present case. But, however, even assuming that the said decision does not apply to the facts of this case where the transfer of the vehicle had not been recognised by the Regional Transport Authority on the date of the accident, the case before us appears to be a fortiori case. Herein, there has been transfer of the vehicle long before the accident and the same has been notified to the concerned Regional Transport Authority. But there is no evidence as to whether the transfer was notified to the Insurance Company either by the transferor or by the transferee. Thus, there has been a factual and physical transfer of the vehicle by the first respondent in favour of the second respondent as early as 17-4-1971. Though the transfer has been notified to the Transport Authority, the registration of the vehicle had not been changed and the registry continued in the name of the transferor. In the light of these facts, we have to determine the liability of the first respondent, the' original owner of the vehicle and the third respondent, the Insurance Company with which the vehicle stood insured.

1l. In Madras Motor Insurance Co. Ltd. v. Mohamed Mustafa Badsha, : AIR1961Mad208 Ananthanarayanan, J., as he then was, took the view that a policy of insurance did not lapse the moment the insured Parted with the ownership of the insured vehicle and that notwithstanding such transfer of ownership, the insurer having regard to the terms of Section 96 of the Motor Vehicles Act could not escape its liability in respect of the third party risks. This view was not accepted by the Division Bench in Bhoopathy v. Vijayalakshmi, : AIR1966Mad244 referred, to above. The Bench disagreed with the view but agreed with the view expressed by Goddard, J., in Tattersall v. Dryadale 1935 All ER 112. In that case, there was a clause in the policy extending the cover against third party risks to the temporary user by the insured of another car, and during the continuance of the policy, the insured sold the car covered by the policy, the subject matter of the insurance. The accident having occurred while the insured used another car, he made a claim. Rejecting that claim, Goddard, J., held the policy insured the plaintiff in respect of the ownership and user of specified car and when he divested himself of his interest in that car the extension clause ceased to have effect. Goddard, J., has observed:

'The true view in my judgment is that the policy insures the assured in respect of the ownership and user of a particular car, the premium being calculated as was found in Rogerson's case (1931-146 LT 26), partly on value and partly on horse power. ...To construe this policy otherwise would be to hold in effect that two distinct insurances were granted one in respect of the scheduled car, and another wholly irrespective of the ownership of any car'.

It is seen that the view of Ananthanarayanan, J., in Madras Motor Insurance Co. Ltd. v. Mohamed Mustafa Badsha, : AIR1961Mad208 did not find favour with the Punjab High Court in Des Raj v. Concord of India Insurance Company AIR 1951 Punj 114 and the Madhya Pradesh High Court in Gyarsilal v. Sitacharan : AIR1963MP164 . It is therefore clear that the decision taken by Ananthanarayanan, J., as he then was in Madras Motor Insurance Co. Ltd. v. Mohamed Mustafa Badsha, : AIR1961Mad208 cannot be taken to lay down the correct law on the subject. Therefore, if there is a transfer of a vehicle the insurance policy taken by the transferor cannot be taken to subsist unless the benefits of the policy are transferred to the transferee. Section 96 of the Motor Vehicles Act which is taken to be a basis for the view taken in Madras Motor Insurance Company Ltd. v. Mohamed Mustafa Badsha, : AIR1961Mad208 does not in our opinion warrant the view that a sale or transfer of an insured car by the insured during the currency of the policy, does not terminate the policy in view of Section 90 of the Motor Vehicles Act.

12. We are not also in a position to agree with the learned counsel for the appellant that unless the sale of the vehicle has been recognised and the transfer of registry is affected by the Transport Authority, there is no completed transfer in law and therefore, the liability of the insured shall be taken to continue until the registry of the vehicle is transferred in the name of the transferee. It has been held by this Court in South India Insurance Co. Ltd. v. Lakshmi : AIR1971Mad347 that if there has been a transfer of ownership of vehicle before the date of the accident, the liability for the accident cannot be fastened on the transferor even though the transfer has not been recognised by the Regional Transport Authority and the registration had continued in the name of the transferor. In that case, the vehicle involved in the accident had been transferred by the insured before the accident but the registration still continued to remain in his name. The Insurance Company repudiated liability on the ground that the policy lapsed upon the physical transfer of the vehicle and therefore, they are not liable to make claim for compensation. It was contended on behalf of the claimant that the transfer of the vehicle did not take effect, in so far as the third parties are concerned, until transfer is duly registered with the registry as envisaged under Section 31 of the Motor Vehicles Act, 1939.

It was held by one of us that a policy of insurance came to an end when a vehicle was physically transferred by the owner. Section 31 of the Motor Vehicles Act could not have the effect of keeping the policy alive qua third parties, that change of registry under Section- 31 was not a condition precedent for the transfer of ownership of the vehicle, that the said section merely imposed an obligation both on the transferor and the transferee of the vehicle to notify the transfer and that the non-compliance thereof will not invalidate the transfer as such which has already taken place. The same view has been taken by ' the Delhi High Court in Oriental Fire and General Insurance Company v. Vimal Roy 1972 ACJ 314: AIR 1973 Delhi 1115 by Orissa High Court in South India Insurance Co. Ltd. v. Purxo Chandra Misra : AIR1973Ori166 by a Division Bench of the Bombay High Court in Gulab Bai Damodar Tapse v.K. Sunder 1975 ACJ 100 and by Punjab and Haryana High Court in State of Punjab v. Brij Mohan Singh 1975 ACJ 372. Having regard to the preponderance of judicial opinion, it is not possible to accept the submission of the learned counsel that the transfer of the vehicle will not put an end to the policy, but it is only the transfer of the registry from the name of the transferor in the name of the transferee alone will have the effect of putting an end to the policy, cannot be accepted. We are, therefore of the view that in this case, the vehicle having been transferred long before the accident, the transferor and the Insurance Company with which the vehicle had been insured by the first respondent, cannot be made liable in respect of the accident which admittedly took place long after the transfer while the vehicle was in possession and custody of the second respondent and it is the second respondent's driver who caused the accident by his rashness and negligence in driving the vehicle. We have to therefore, sustain the dismissal of the claim as against the first and the third respondents by the Tribunal.

13. Corning to the question of quantum of compensation, the learned counsel for the appellant contends that the deceased would have earned throughout if he had been alive a sum of Rs. 4,03,000/- but reduced the dependency of the family to Rs. 1,00,000/-. According to the learned counsel, the deduction for lump sum payment cannot be to the extent of 75% as has been adopted by the Tribunal. The Tribunal has held referring to the income-tax assessment orders and also the other materials that the deceased would have earned at least Rs. 1,200/per month if he had been alive for a period of 28 years. The deceased was aged 42 years at the time of his death and the Tribunal assumed his longevity to be 70 years and it has only on that basis chose to multiply the annual dependency by 28. On the materials on record, we are inclined to agree with the Tribunal that the deceased would have earned at least Rs. 1,200/- per month. But out of the sum of Rs. 1,200/- he had to attend to his personal needs and also to maintain his mother, the first claimant, claimants 2 and 3 his minor children and his wife, the 4th claimant. Having regard to the number of persons depending on him, we can assume that a sum of Rs. 750 per month out of Rupees 1,200/- earned by him, would have gone to the benefit of the claimants who are his dependant3. Thus, the annual dependency of the claimants on the deceased will be Rs. 750/- per month. Having regard to the age of the deceased at the time of his death, we are inclined to adopt 15 as the multiplier. On this basis, the loss of pecuniary benefit arising out of the death would be Rs. 1,35,000/-.

14. Apart from this, the claimants are entitled to a compensation under the head 'loss of expectation of life' The deceased who was the only earning member and head of the family and whom the entire family relied on for support had died and therefore the loss is all the more greater. We therefore award a sum of Rs. 15,000/- as compensation for loss of expectation of life. Thus, the total compensation comes to Rs. 1,50,000/-. However, the other claimants not having appealed and the 4th claimant alone having come before us in appeal, we increase the sum of Rs. 50,000/- awarded as compensation to the appellant to Rupees 75,000/- taking into account the overall increase in the compensation from Rs. 1,00,0001- to Rs. 1,50,000/-. The benefit of the increase in compensation will not go to the other claimants, as they have not filed the appeal. The appellant will therefore be entitled to a sum of Rs. 75,000/- as compensation from the second respondent. Thus, the appeal is partly allowed to the extent indicated above. No costs.

15. Appeal partly allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //