JUDGMENT
S. Samvatsar, J.
1. This appeal is filed by the claimants challenging award dated 19th March, 1997 passed by Fifth Member Judge, Motor Accident Claims 6 Tribunal, Gwalior in Claim Case No. 39/88, whereby the Claims Tribunal has dismissed the claim petition filed by the present appellants.
2. The brief facts of the case are that appellant No. 1 are widow of deceased Ram Prakash Arora while appellant Nos. 2 to 5 are his sons and daughter. The claim petition was filed alleging that on 19thMay, 1986 the deceased Ram Prakash Arora f at about 1 O’clock in the noon was driving scooter, when he reached near President Hotel one tempo bearing No. CPH-5132, which was driven by respondent No. 1 Rajaram owned by respondent No. 2 and insured with respondent No. 3 dashed against the deceased Ram Prakash Arora. Deceased Ram Prakash Arora due to hand injury became unconscious on the spot and when he was took to the hospital, he died there.
3. According to the claimants that the earning of the deceased was Rs. 1,700 per month and he was aged 50 years. The heirs of the deceased i.e. present appellants filed an application for compensation, which was dismissed by the Claims Tribunal by holding that the claimants have failed to prove that Ram Prakash died due to accident with Tempo No. CPH 5132. The Claims Tribunal has h also held that at the time of accident, Insurance Company was not liable to pay the compensation as the vehicle which was insured with the Insurance Company respondent No. 3 was sold by the insured defendant No. 2 and they have not issued a any insurance policy in favour of respondent No. 1.
4. The claimants to prove their case have examined AW 1 Raj Kumari Arora, who is wife of the deceased. AW 2 Bhagwandas, an eye-witness to the accident. AW 3 Dr. V.K. Diwan, who had performed the post-mortem. Thus, the only eyewitness examined by the claimant is AW 2 Bhagwandas. He has stated that he was going on his scooter at the time of accident and when he reached near President Hotel, he saw one tempo coming in very high speed. The said tempo overtook him at that time. This witness failed to say that the tempo will hit him, but any how he has come and tempo dashed against another scooter, which was coming from opposite side. He has stated that number of tempo was CPH-5132 and said tempo ran away from the spot. In cross-examination this witness has failed to give number of the scooter driven by the deceased and considering this fact Claims Tribunal has disbelieved this witness and held that claimants have failed to prove that the accident has not occurred due to rash and negligent driving of the tempo No. CPH 5132. This approach of the Claims Tribunal in the present case does not appear to be correct. The eye-witness Bhagwandas has given number of the tempo, which dashed against the scooter of the deceased. This witness could not have been disbelieved by the Claims Tribunal only because he did not remember the number of the scooter, which was driven by the deceased. Moreover, the driver respondent No. 1 has not step into witness-box to deny the accident. The Insurance Company has filed its written statement and in para 7 of its special pleadings has alleged that the accident has occurred due to rash and negligent driving of the deceased. Respondent No. 1 who was driving the vehicle has not filed his written statement and remained ex parte. Thus, the evidence of Bhagwandas (AW 2) is wrongly disbelieved by the Claims Tribunal and therefore the finding arrived by the Claims Tribunal on issue No. 1 deserves to be set aside and is hereby set aside and it is held that accident has occurred due to rash and negligent driving of respondent No. 1 by which deceased Ram Prakash Arora died.
5. As regards question of quantum is concerned, the claimants in their application have stated that the deceased was earning Rs. 1,700 per month. AW 1 Raj Kumari Arora, who is wife of the deceased has stated that the age of her husband was 47 years. This witness has stated that the income of her husband was Rs. 2,000 per month, which has come on record. The deceased was running a restaurant, g considering this fact and in absence of any evidence any rebuttal, it can be safely held that the income of the deceased was Rs. 2,000 per month. Thus, his yearly income comes to Rs. 24,000 per annum and yearly dependency will come to Rs. 16,000 per annum. AW 1 in her statement has stated that the age of the deceased ‘was 47 years, while in the claim petition the age of the deceased is mentioned 50 years. Considering this fact the age of the deceased can be safely taken between 45-50 years and, therefore, multiplier of 13 will be applicable and compensation will come to Rs. 2,08,000. The claimants shall also be entitled for loss of consortium, funeral expenses etc. Thus, the claimants are entitled to total compensation of Rs. 2,25,000 plus interest at the rate of 6% per annum from the date of application.
6. Now, the question is whether the Insurance Company can be held liable for the accident. Initially the vehicle owned by respondent No. 2. He has sold the vehicle to respondent No. 1. The registration of the vehicle was also transferred in the name of respondent No. 1. However, as regards insurance policy is concerned, the same continued in the name of respondent No. 2, as no information about the transfer of the vehicle was given to the Company, as was required under Section 103 of the Motor Vehicles Act, 1939. Considering this fact, learned Counsel for the Insurance Company has urged that as there was no continuity of contract between Insurance Company and claimants, the Insurance Company is not liable. On the other hand, learned Counsel for the appellants submitted that even in the case of transfer of vehicle, the Insurance Company is liable. For this purpose, learned Counsel for the appellants has relied on number of judgments. The first judgment is in the case of Madineni Kondaiah and Ors. v. Yaseen Fatima and Ors. I (1986) ACC 501 : AIR 1986 AP 62, which is Full Bench judgment of Andhra Pradesh High Court. In that case the Full Bench of Andhra Pradesh High Court has held that it cannot be said that the transfer is incomplete till the registration is effected in favour of the purchaser. The transfer of the vehicle is governed by the provisions of Sale of Goods Act. In absence of any agreement to the contract payment of price, and delivery of vehicle make the sale complete, and the title passes to the purchaser. However, in paras 46, 47 and 50 the Full Bench has held that public liability of transferor so far as third party risk is concerned continues till he discharges statutory obligation under Sections 29-A, 31 read Section 94 of the Motor Vehicles Act, 1939 and, therefore, the policy does not lapse on transfer so far as third party risk is concerned. This judgment definitely supports the case of the appellants.
7. Another judgment is in the case of Haji Zakaria and Ors. v. Naoshir Cama and Ors. 1976 ACJ 320. From perusal of said judgment it appears that said judgment is distinguishable, as in that case the insured was dead and the vehicle was in possession of his heirs and, therefore, High Court has held that the insurance policy is a property and it devolves on heirs of insured and, therefore, Insurance Company is liable. Another judgment cited by learned Counsel for the appellants is in the case of Nani Bai and Ors. v. Ishaque Khan and Ors. 1994 JLJ 296. In that case Division Bench of this Court has held that insurer accepting the premium for insurance of motor bus cannot be allowed to plead exoneration on the ground that insured was dead. In that case also contention of Insurance Company was that after the death of insured the Insurance Company is not liable, but this is not a situation in the present case. In the present case, the transfer is by sale and not by succession. Another judgment cited by learned Counsel for the appellants is in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Ors. I (1987) ACC 413 : AIR 1987 SC 1184. The facts of the case are also distinguishable. In that case, the Apex Court after considering the case of breach of condition of policy has held that mere breach of clause does not absolve insurer of his liability. The Insurance Company has to establish that the insured himself was guilty of committing breach of promise in contract of insurance. Thus, this case is also quite distinguishable. Next judgment cited by learned Counsel for the appellants is in the case of Mohammad Ramzan v. Sharifanbai and Ors. 1982 ACJ 445. In that case this Court has held that registered owner of the vehicle is liable to pay compensation, because he must be deemed to have knowledge that the vehicle will be used by the transferee or his agent. However, in the present case, registered owner was changed before the accident, therefore this case has no application. Next judgment cited by learned Counsel for the appellants is in the case of Zabar Singh v. Pirthi Chand and Ors. 1984 ACJ 125. In that case the price of the vehicle was paid by transferee after accident, though the registration was transferred. Next judgment is in the case of New India Assurance Co. Ltd. v. K. Ravindra Nair and Anr. 1 (1996) ACC 178 : 1996 (1) TAC 680. In that case the owner of the vehicle was not joined as party and still award was passed against the Insurance Company and High Court has held that mere because owner of the vehicle was not joined as party to the proceeding, award cannot be sustained. Next judgment is in the case of Jadoo Singh and Anr. v. Malthi Devi and Anr. 1983 ACJ 747. In that case the Insurance Company has accepted the proposal of insurance retrospectively, hence considering this fact Insurance Company was liable. In the case of Mohd. Abdul Waheed v. Shyam Behari Rameshwar Kalvar and Ors. 1983 ACJ 369, the Bombay High Court has held that the provisions of Sale of Goods Act, 1930 will be applicable to the transfer of the vehicle. In that case the Bombay High Court has held that in case of transfer of the vehicle, the Insurance Company shall not be responsible to pay the amount of compensation. Thus, this judgment goes against the present appellants.
8. Considering all these judgments, I find that in case where the registered ownership is transferred and Insurance Company continues to be insured, then the Insurance Company cannot be held liable in absence of transfer of the policy under the old Act, now the situation under the Act, 1988 is different, but in the present case the provisions under the Act, 1988 are not applicable.
9. In the result, this appeal is allowed in part and held that respondent No. 1 is liable to pay compensation of Rs. 2,25,000 to the claimants with interest at the rate of 6% per annum from the date of application and exonerated the respondent Nos. 2 and 3 from liabilityS