JUDGMENT
The Court
1. This appeal is filed by the appellant who was second respondent before the lower Court against the L.Rs. of the deceased Basappa Ba-natti and the Insurance Company.
2. In brief the grounds of appeal are as follows:
The Tribunal was wrong in holding that the appellant who was the driver of the vehicle in question as responsible for the accident in question. To come to such conclusion, the Tribunal relied upon the evidence of those who were not even the eye-witnesses. Thus, the finding, that
the appellant as guilty for the death of Basappa Banatti is erroneous. The very evidence of P.W. 4, the so-called eye-witness makes it clear that he was not even an eye-witness to the incident. Tribunal gravely erred in considering his evidence.
3. As a matter of fact, the appellant who deviated his vehicle to avoid the boy coming into contact with the vehicle, the vehicle came into contact with a pole, therefore he never touched or dashed late Basappa Banatti. The non-examination of the informant to the police is fatal to the case of the claimants.
4. The Tribunal ought to have held that the Insurance Company was liable to pay the compensation but the finding of the Tribunal is not correct. The amount of compensation and the interest awarded is also excessive and highly arbitrary. With these averments, the appellant has sought for the dismissal of the judgment.
5. The points that would arise for Court’s consideration are as under:
(1) Whether the appeal deserves to be allowed setting aside the award of the Tribunal in M.V.C. No. 446 of 1986? (2) Whether there should be a direction that appellant is liable to pay compensation if any?
6. Respondent 1 is the wife of late Basappa Banatti. Respondents 2 and 3 are the children of late Basappa Banatti who died in the motor vehicle accident. The fourth respondent-Basavaraju Shadaksharayya was the 1st respondent before the Tribunal. The appellant herein was the second respondent before the Tribunal and the 5th respondent was the 3rd respondent before the Tribunal. According to the claimants-petitioners before the Tribunal the deceased was proceeding by the side of the road near Rotary Club, Deshpande Nagar, Hubli. At the time of the accident in question, the vehicle bearing No. CNB 1495 Bajaj M-50 driven by the appellant herein in a rash and negligent manner dashed against the deceased as a result, he sustained fatal injuries and succumbed to the injuries at KM.C. Hospital, Hubli. The 4th and 5th respondents in the appeal are the original owner and Insurance Company of the vehicle at the relevant time of the accident.
7. It was further contended on behalf of the claimant that the deceased was working as Assistant Master in the Government College, Ilkal, Bijapur aged about 45 years and was earning Rs. 2,100/- per month. They had claimed in all Rs. 3,00,000/- as compensation.
8. The first respondent before the Tribunal who is 4th respondent herein filed his objection statement calling upon claimants to prove the relationship between the deceased and them, age of the deceased, occupation of the deceased and income of the deceased. He has also denied the rash and negligent driving of the vehicle by the second respondent-rider. It is the specific case of the 4th respondent that on 26-3-1986 he sold the vehicle for a consideration of Rs. 7,261/- to the appellant herein and handed over all the necessary documents which are duly signed for effecting the transfer of the R.C. On the very same day the appellant had taken possession of the vehicle and therefore, the first respondent
before the Tribunal contended that he was not the owner as on the date of the accident and he was not at all liable to pay any compensation.
9. The contention of the second respondent who is the appellant herein was total denial of negligence on his part apart from other contentions. He categorically stated that there was no impact between two-wheeler and the deceased. As a matter of fact, on the date of the alleged accident i.e., 14-4-1986 the vehicle hit against the telephone pole and the appellant-second respondent sustained injuries which were treated by the doctor, Dr. Parvathi Bhat. A criminal case was registered only on mere suspicion against him.
10. The contention of the 5th respondent herein i.e., the Insurance Company is also denial of liability on account of sale of the vehicle by the 4th respondent herein to the appellant on 26-3-1986 which is prior to the date of accident. It is further contended by the Insurance Company that the vehicle was transferred without any intimation to the Company. Therefore as on the date of the accident, the insurance policy had lapsed. They have also denied rash and negligent driving of the vehicle by the appellant herein. It is further contended that the appellant had no valid licence and therefore viewed from any angle, he was not liable to pay compensation.
11. According to the appellant herein, he was not at all responsible for the occurrence of the accident and as on the date of the accident, the policy was valid and therefore, even if he were to be held as responsible for the accident, the Insurance Company has to pay the compensation.
12. The learned Counsel for the appellant relied upon the following citations:
(1) G. Govindan v New India Assurance Company Limited;
(2) National Insurance Company Limited v Mallikarjun and Others;
(3) Madineni Kondaiah and Others v Yaseen Fatima and Others.
13. It is not in dispute that the accident occurred on 12-4-1986. No doubt, the complaint was not lodged by P.W. 4, It is also not in dispute that the appellant-Ravindra N. Tantry was acquitted in the criminal case. Admittedly, the deceased was a stranger to the appellant. The contention of the appellant that P.W. 4 not being a charge-sheet witness cannot be believed as an eye-witness. It is well-settled that the appreciation of evidence in a criminal case in order to hold the accused guilty of an offence beyond reasonable doubt, is entirely on a different approach than the appreciation of evidence in a compensation case. The Tribunal has to proceed with the claim petition in a summary procedure and the negligence on the part of the driver would be decided on preponderance of probability based on the material facts before the Tribunal. Merely
because P.W. 4 was not a charge-sheet witness it cannot be said that P.W. 4 did not witness the accident at all. There is no hard and fast rule that all those persons who witness a crime or an offence have to be charge-sheeted witnesses. So also, non-examination of other pedestrians is not fatal to the case of the claimants. On the perusal of the evidence on record, P.W. 1 is the wife who is admittedly not an eye-witness to the incident. P.W. 2 is also a doctor who treated respondent 2, the rider of the two-wheeler. Her evidence would establish the fact that the appellant herein sustained injuries while riding two-wheeler and in the process of trying to avoid a pedestrian hit a pole. She treated him as it was 9.30 p.m. late in the night. She has also stated that the police took a report from her two days later. P.W. 3 is none other than the Investigating Officer who seized the vehicle involved in the accident driven by the appellant at the relevant point of time. The seizure was on 16-4-1986. He registered a case in Crime No. 66 of 1986 on the basis of the information given by P.W. 2-Dr. Parvathi Bhat and also a police constable. According to this witness, first information was given by one Iranna Manvi. P.W. 4 says at the time of the accident he was standing near Sharada Hotel when he noticed two persons walking along the left side of the road near Circuit House, Hubli. The rider of the scooter coming from Cotton Market Road entered into the Circuit House Road and while proceeding, he dashed against one of the persons who was walking and further went and hit the electric pole. The pedestrian fell down sustaining injuries. With the help of the other person Veeranna Manvi, he took the injured to K.M.C. Hospital, Hubli. The injured was Mr. Banatti. Later he learnt that the injured succumbed to the injuries. The very defence of the appellant herein that, he hit the pole while avoiding the pedestrian, would make it clear that he was riding the offending vehicle at the particular point of time. He has also introduced other point in his defence that a boy suddenly came across the road and while trying to avoid him, he dashed against the electric pole. If really the scooter was not at all involved at the relevant point of time, there was no reason why a stranger should be involved i.e., this appellant as the responsible person for the occurrence of the accident. From the evidence available on record in all probability when the scooterist dashed against the deceased pedestrian riding his scooter in a rash and negligent manner, must have gone further and hit the electric pole which was by the side of the road. So far as this finding of the Tribunal is concerned, this Court need not interfere with. It is not in dispute that Bajaj Scooter, the offending vehicle in question was sold to appellant herein by the original owner under Ex. P.1-agreement of sale, which is also at Ex. R. 2, dated 26-3-1986. The possession is handed over on the very same day as per Ex. R. 4. As a matter of fact, this appellant filed an application for release of the vehicle in the criminal case and took the interim custody of the vehicle contending that he is the owner having purchased the same from the 4th respondent herein (original owner).
14. Admittedly, as on the date of accident i.e., 12-4-1986 the vehicle was not transferred to the name of the appellant from the name of the original owner as the original purchase was within two years. It is
evident from the records that subsequent to the purchase, this appellant paid premium and obtained receipt as per Ex. R. 8. Therefore, the policy was in force as on the date of the accident. The Tribunal did not agree with the judgment of the Single Judge of this Court in National Insurance Company Limited, Bangalore v Smt. Lakshmi and Others, wherein it was held that non-compliance of procedure invalidates the deemed transfer of certificate. It has held that the Company would be liable. The learned Judge of the Tribunal relied upon the Full Bench decision of our High Court in Mallikarjun’s case, supra, and so also Panna Lal v Chand Mal and Others. Placing reliance on these two decisions, the Tribunal held that though the appellant got renewed the insurance policy subsequent to the purchase of the vehicle cannot be of any help in order to bind the Insurance Company to pay the compensation, because of sale of the vehicle, the policy would be lapsed.
15. Similar situation arose before the Apex Court in the case of G. Govindan, supra. In this case the question that arose before their Lordships was whether the insurance policy lapses and liability of Insurance Company to third party ceases when the insured vehicle is transferred and no application or intimation as prescribed under Section 103-A of the old Act of 1939 made or given. Their Lordships had to deal with the Full Bench judgments of three High Courts, that is the Full Bench judgment of this Court which was relied upon by the Tribunal. The Full Bench of this Court and the High Court of Delhi (Anand Sarup Sharma v P.P. Khurana) answered the above said question holding that the liability of the Insurance Company ceases when the insured transfers his application as stated supra. But the Full Bench of the High Court of Andhra Pradesh answered that such transfer of insured vehicle does not come in the way of validity of the policy. In other words, the interest of the 3rd party will not be affected in spite of non-compliance of Section 103-A of the Act. At paras 10, 11 and 12 of Govindan’s case, supra, their Lordships have discussed about the said decision at length as under:
“10. In Complete Insulations (Private) Limited v New India Assurance Company Limited, three-Judge Bench of this Court had considered the scope of Section 103-A and Sections 94 and 95 of the 1939 Act and compared the same with Sections 157 and 146, 147 and 156 of the Motor Vehicles Act, 1988. In that case the transferee of the vehicle contended, inter alia, that he was entitled to get the compensation for the damage caused to the vehicle in an accident that took place after the transfer notwithstanding the fact that the insurance policy was not transferred in his name. The Consumer Disputes Redressal Commission, Chandigarh, directed the insurer to pay a total sum of Rs. 83,000/ i.e., the in-
sured value of the vehicle. The insurer preferred an appeal to the National Consumer Disputes Redressal Commission which set aside the order of the Commission at Chandigarh and dismissed the claim of the transferee. The National Commission after referring to the Full Bench judgment in particular the separate concurring judgment of Kodandaramayya, J., of Andhra Pradesh High Court applied the ratio in that judgment in support of its decision. The transferee then preferred an appeal to this Court by special leave. This Court after referring to the separate judgment of Kodandaramayya, J., approved the principle laid down therein, applied the same and upheld the decision of the National Commission.
11. This Court in the said judgment held that the provisions under the new Act and the old Act are substantially the same in relation to liability in regard to third party. This Court also recognised the view taken in the separate judgment in Madineni Kondaiah’s case, supra, that the transferee-insured could not be said to be a third party qua the vehicle in question. In other words, a victim or the legal representatives of the victim cannot be denied the compensation by the insurer on the ground that the policy was not transferred in the name of the transferee.
12. This Court further held as follows:
“Now, under the old Act although the insurer could refuse to transfer the certificate of insurance in certain circumstances and the transfer was not automatic as under the new Act, there was under the old law protection to third parties, that is victims of the accident. The protection was available by virtue of Sections 94 and 95 of the old Act””.
The same view was taken in New India Assurance Company Limited v. Sheela Rani. At para 17 of the judgment, the Apex Court had discussed three views of Full Bench judgments of different Courts and held as under:
“17. As between the two conflicting views of the Full Bench judgments noticed above, we prefer to approve the ratio laid down by the Andhra Pradesh High Court in Madineni Kondaiah’s case, supra, as it advances the object of the legislature to protect the third party interest. We hasten to add that the third party here will not include a transferee whose transferor has not followed procedure for transfer of policy. In other words, in accord with the well-settled rule of interpretation of statutes we are inclined to hold that the view taken by the Andhra Pradesh High Court in Madineni Kondaiah’s case, supra, is preferable to the contrary views taken by the Karnataka and Delhi High Courts (supra) even assuming that two views are possible on the interpretation of relevant sections as it promotes the object of the legislature in
protecting the third party’s (victim) interest. The ratio laid down in the judgments of Karnataka and Delhi High Courts (supra) differing from Andhra Pradesh High Court is not the correct one”.
From the judgment of the Apex Court, it can be said that the judgment relied upon by the Judge of the Tribunal that is, the Full Bench judgment of this Court was held as not correct.
16. Therefore, in the present case, when the appellant has paid the premium to keep the policy alive though in the name of the original owner, so far as the interest of the third party is concerned, the same is not affected. In other words, the Insurance Company is not absolved from its liability on the ground that the vehicle was transferred by the insured prior to the occurrence of the accident and on non-compliance of the procedure for transfer of the policy under the Act.
17. In view of the above discussion and reasons, the appeal deserves to be allowed and stands allowed. No order as to costs.