IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Date of Decision:17.2.2009
FAO No.1729 of 1993 alongwith
Cross Objection No.21-CII/1994
National Insurance Company Ltd.
..........Appellant.
Versus
Sushma Rani and others
..........Respondents
AND
FAO No.1742/1993
National Insurance Company Ltd.
……….Appellant.
Versus
Kulwinder Kaur and others.
……….Respondents
CORAM: HON’BLE MR.JUSTICE JASWANT SINGH.
Present: Mr. Neeraj Khanna,Advocate for
Mr.Deepak Suri,Advocate for the appellants in both the appeals.
None for Cross Objectors in FAO No.1729/1993.
JASWANT SINGH,J
This order will dispose of FAO Nos.1729/1993, Cross Objection
No.21-CII/1994 and FAO No.1742/1993, arising out of common award dated
22.5.1993 passed by the learned Motor Accident Claims Tribunal, Patiala (for
short Tribunal), whereby the claim petition Nos.1T and 2T of
FAO No.1729 of 1993 etc. 2
31.1.1991/7.8.1992 filed by the dependents of deceased Kuldip Singh and
Jasmer Singh respectively were allowed and the following compensation was
awarded:-
IT No. FAO No. Compensation
awarded
Rs. P.
1T of 31.1.1991/ 7.8.1992 1742/1993 2,16,000-00
2T of 31.1.1991/ 7.8.1992 1729/1993 1,92,000-00
While FAO Nos.1729 and 1742/1993 have been filed by the
appellant- Insurer of the offending vehicle (Swaraj Mazda No.CHW 6017),
Cross Objection No.21-CII of 1994 has been filed by claimants-respondents
Sushma Rani in FAO No.1729 of 1993.
None has put in appearance on behalf of the Cross Objectors in
FAO No.1729/1993.
I have heard learned counsel for the appellant-Insurance Company.
The sole contention raised by the learned counsel for the appellant-
Insurance Company is that the accident in question took place on 3.1.1991,
whereas Naresh Mahajan,owner of offending vehicle (insured) had already
sold the said vehicle to one Rupinder Singh before the date of accident and the
possession of the offending vehicle alongwith all relevant documents/liabilities
already stood handed over to said Rupinder Singh as far back as September
1988. It is the case of the appellant-Insurance Company that since on the date
of the accident the subsequent purchaser-Rupinder Singh had not got the
insurance certificate transferred in his name, the Insurance Company was not
liable to pay the compensation.
In my considered opinion, in view of the provisions of Section 157
FAO No.1729 of 1993 etc. 3
of the Motor Vehicles Act,1988 (for short the Act) the contention raised by the
learned counsel for the appellant-Insurance Company is wholly misconceived
and liable to be rejected.
As per provisions contained in sub-section (1) of Section 157 of
the Act, “where a person in whose favour the certificate of insurance has been
issued in accordance with the provisions of this Chapter transfers 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, 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”.
The procedure to get the insurance transferred in favour of
transferee is prescribed under sub-section (2) of Section 157 of the Act. In case
a transferee fails to take necessary steps for getting insurance transferred in his
favour, the insurer cannot be absolved of its liability to pay compensation
during the currency of the insurance policy.
The Hon’ble Supreme Court in United India Insurance Company
Limited v. Tilak Singh, Accidents Claims Journal 2006 (Volume III) 1441,
after relying upon Rikhi Ram v. Sukhrania, 2003 ACJ 534 (SC) held that
failure to transfer the ownership of the insured vehicle in so far as liability
towards a third party is concerned, the insurer cannot be absolved of its
liability during the currency of the insurance policy as the purpose of
legislation was to protect the rights and interest of the third party. The relevant
paragraphs 12 and 13 of Tilak Singh’s case (supra) are reproduced hereunder:-
FAO No.1729 of 1993 etc. 4
“12. In Rikhi Ram v. Sukhrania, 2003 ACJ 534 (SC),
a Bench of three learned Judges of this Court had
occasion to consider section 103-A of the 1939 Act.
This court re-affirmed the decision in G. Govindan’s
case, 1999 ACJ 781(SC) and added that the liability
of an insurer does not cease even if the owner or
purchaser fails to give the intimation of transfer to the
insurance company, as the purpose of the legislation
was to protect the rights and interests of the third
party
13. Thus, in our view, the situation in law which
arises from the failure of the transferor to notify the
insurer of the fact or transfer of ownership of the
insured vehicle is no different, whether under section
103-A of the 1939 Act insofar as the liability
towards a third party is concerned. Thus, whether the
old Act applies to the facts before us, or the new Act
applies, as far as the deceased third party was
concerned, the result would not be different. Hence,
the contention of the appellant on the second issue
must fail, either way, making a decision on the first
contention unnecessary, for deciding the second
issue. However, it may be necessary to decide which
FAO No.1729 of 1993 etc. 5Act applies for deciding the third contention. In our
view, it is not the transfer of the vehicle but the
accident which furnishes the cause of action for the
application before the Tribunal. Undoubtedly, the
accident took place after the 1988 Act had come into
force. Hence, it was the 1988 Act which would
govern the situation.”
Learned counsel for the appellant-Insurance Company has not been
able to cite any case law which may be contrary to Tilak Singh’s case (supra).
In view of the aforesaid provisions of the the Act and law laid
down by Hon’ble Supreme Court, FAO Nos.1729 and 1742/2003 stand
dismissed being devoid of any merit.
So far as Cross Objection No.21-CII/1994 in FAO No.1729/1993
is concerned, the same has been filed by claimants for enhancement of
compensation.
As already noticed above, though no one has put in appearance on
behalf of the Cross Objectors, yet with the assistance of the learned counsel for
the appellant-Insurance Company, I have gone through the record and
considered the cross objections.
It is averred in the Cross Objections that the Kuldeep Singh
deceased was working as a Halwai and his monthly income from all sources
was about Rs.5000-6000/-, whereas the learned Tribunal has wrongly
determined the monthly dependency at Rs.800/-.
After carefully examining the impugned award, in my considered
FAO No.1729 of 1993 etc. 6
opinion, the objection raised herein is totally against the evidence led by the
claimants.
Claimants examined one Rajwinder Singh (AW-4), Sarpanch of the
Village where the deceased was residing. It was stated by said witness that
Kuldip Singh was not running any regular Halwai Shop and he used to attend
the marriages and social functions on daily wages. The learned Tribunal on the
basis of said evidence assessed the monthly dependency at Rs.800/- p.m.
Judicial notice can be taken of the fact that marriages are not held
round the year and is a seasonal affair. Accordingly, the deceased being a
Halwai attending marriage functions etc. cannot be said to be in regular
employment. No other evidence, to prove the claim that deceased was
engaged in dairy business etc., was led before the learned Tribunal.
Moreover, learned Tribunal, considering the age of deceased
Kuldip Singh (22 years at the time of his death) generously applied a multiplier
of 20, which can certainly not be said to be on the lower side.
Thus, no case for enhancement of compensation is made out.
Accordingly, Cross Objection No. 21-CII of 1994 also stands dismissed.
17.2.2009. (Jaswant Singh) joshi Judge