JUDGMENT
B.A. khan, J.
1. The insurer’s liability is the bone of contention as the insurance company was let off by the M.A.C.T., but appellants’ want to rope it in.
2. The dispute may not have arisen but for the offending tractor No. MPU 8939 and trolley changing hands. It first belongs to one Sardar Singh and was insured with respondent No. 7 from 21.9.87 to 20.9.88. It was then transferred to appellant Nos. 2 and 3, but the insurance status remained as it was. It was driven by appellant No. 1 on 13.2.1988 when it hit one labourer Gajraj Singh, who was killed in the process. His claimants (respondent Nos. 1 to 6 herein) filed Claim Case No. 27 of 1988 but insurance company disclaimed liability because insurance policy was not transferred to new owners (appellant Nos. 2 and 3) and also because the driver (appellant No. 1) was not holding a valid licence. The Tribunal absolved the company, held appellants liable and awarded Rs. 85,000 to claimants along with 12 per cent interest. This was done on interpreting provisions of Section 103 of old Motor Vehicles Act on appreciation of documentary evidence of appellants and because of their failure to examine the original owner Sardar Singh.
3. Appellants have now filed this appeal to assail the award by placing reliance on a Supreme Court judgment. They have also filed IA No. 754 of 1998 under Order XLI, Rule 27, Civil Procedure Code for permission to place company’s communication dated 22.3.1988 on record. Since this application did not meet any resistance on the way, it is accordingly allowed and aforesaid communication acknowledging intimation of transfer of tractor by original owner Sardar Singh is taken on record.
4. On factual front case of contesting parties falls in a narrow compass. Appellants’ case is that original owner Sardar Singh had intimated transfer of offending tractor to the insurance company on 30.1.1988 under postal certificate which stood acknowledged by its communication dated 22.3.1988. But, since it had failed to convey its refusal to transfer within prescribed 15 days in terms of Section 103-A (old Motor Vehicles Act), insurance certificate and policy should be deemed transferred to them.
5. The rival version is that company was not informed about controversial transfer of tractor at all and question of fictional transfer of policy did not arise.
6. The Tribunal has gone by the company’s version. It disbelieved appellants’ documents (unsigned copy of claimed intimation and envelope cover) and discarded their stand mainly because of their failure to examine the original owner as witness.
7. Appellants are invoking the aid of Section 103-A of old Act which reads thus:
103-A.-(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter proposes to transfer 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, he may apply in the prescribed form to the insurer for the transfer of the certificate of insurance and the policy described in the certificate in favour of the person to whom the motor vehicle is proposed to be transferred, and if within fifteen days of the receipt of such application by the insurer, the insurer has not intimated the insured and such other person his refusal to transfer the certificate and the policy to the other person, 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.
8. This provision, as would be evident from its plain reading contemplates transfer of an insurance policy to the transferee of a motor vehicle. It provides that where an insurance certificate holder proposes to transfer ownership of the motor vehicle to another person, he may apply in a prescribed form to insurer for transfer of certificate of insurance and policy to the prospective transferee. But, if the insurer fails to convey refusal for such transfer within fifteen days from the receipt of such application, insurance policy and certificate would be deemed transferred to such transferee. It may be noted that the provision does not guarantee transfer of insurance documents automatically upon an application made by the insured transferor. On the contrary, it reserves the insurer’s right to refuse such transfer within prescribed fifteen days. But if the insurer fails to convey such refusal within this period, then insurance certificate and policy would be deemed transferred to the prospective transferee by fiction.
9. As could be seen, the conveyance of refusal by the insurer assumes crucial importance in the matter. If the insurer remains silent and fails to convey such refusal, the insurance documents stand transferred by fiction. Section 157 of the new Act clears the cobwebs and makes transfer of insurance certificate and policy automatic along with transfer of the motor vehicle. It has taken away insurer’s right of refusal which was otherwise exercisable under Section 103-A of the old Act.
10. Tested on the touchstone of this legal position odds seem to be more in favour of appellant Nos. 2 and 3 than the insurer. Though their version is also not free from doubt and at times deserved to be taken with a pinch of salt, but it surely indicates that the insurance company was seized of transfer issue which is evident by its all important communication dated 22.3.1988 whereby intimation about transfer of tractor was acknowledged and the insured was called upon to satisfy certain formalities. There is nothing to show that transfer of insurance documents to appellant Nos. 2 and 3 was refused at any stage. If it was not, the deeming provision envisaged by Section 103-A would apply with full force and insurance certificate and policy of the offending vehicle would be deemed transferred to appellants and the insurer would be obliged to indemnify them. Any strict adherence to the dates to complete fifteen days prescribed time becomes irrelevant in the face of admitted position that the insurance company had not conveyed its refusal to transfer at any stage. This position finds support and is fortified by the provisions of Section 157 of the new Act which fictionally transfers insurance documents along with transfer of a motor vehicle and takes away the insurer’s right of refusal.
11. Looking at it from the other angle and even if it was assumed that original owner Sardar Singh had failed to intimate the transfer of tractor to the insurance company, still it could not be let off the hook because it was no more res Integra that its public liability qua third party as envisaged by Sections 94 and 95 of the old Act, subsisted and did not extinguish by reason of transfer of tractor. Therefore, it was liable any way and could not run away by pleading ignorance of the transfer of the tractor.
12. The insurance company is thus held liable to indemnify appellant Nos. 2 and 3 and is directed to satisfy the award of Rs. 85,000 with 12 per cent interest from 11.4.1988 passed in favour of respondent Nos. 1 to 6 herein within three months. Feeling satisfied on this appellants’ counsel in M.A. No. 363 of 1993 did not press the appeal for enhancement of compensation which is accordingly dismissed.