JUDGMENT
Milap Chandra Jain, J.
1. This appeal has been filed against the award of the Motor Accidents Claims Tribunal, Banner, dated April 27, 1989, by which it has awarded Rs. 1,17,400/- as compensation to the claimant-respondent Nos. 1 to 7. The facts of the case giving rise to this appeal may be summarised thus.
2. On November 23, 1986, the deceased Umedaram was going on his motor cycle No. RJC 1591 from Mahavir Nagar, Banner to Banner City. When he came in front of the factory of Jiwana Ram Choudhary (under construction), Nishan truck No. RJC 1261 came from the opposite direction with an excessive speed on its wrong side and dashed against the said motor cycle which was going on its correct side of the road. The truck was being driven by its driver Tej Singh, respondent No. 10. As a result thereof, Umedaram died on the spot and his motor cycle was badly damaged. Report was immediately lodged in the police station by Bega Ram, PW 2. A case under Section 304A, Indian Penal Code, was registered against the driver Tej Singh and investigation commenced. On March 11, 1987, a claim petition was filed before the Motor Accidents Claims Tribunal, Banner by the widow, three minor sons, one minor daughter and parents of late Umedaram for Rs. 9,95,123/- against the driver of the truck Tej Singh, respondent No. 10, owners Babulal, respondent No. 8 and Manakmal, respondent No. 9 and insurer United India Insurance Co. Ltd. (appellant) with the allegations, in short, that the deceased Umedaram was 33 years old at the time of the accident, he was earning Rs. 50/-per day as a mason, while he was going on his motor cycle No. RJC 1591, Nishan truck No. RJC 1261 came to its wrong side with an excessive speed and dashed against the motor cycle, as a result thereof he died on spot, he has left behind him the claimants who were wholly dependent upon him, at that time the truck was owned by Manakmal and Babulal and was insured with the United India Insurance Company Ltd.
3. The driver Tej Singh admitted in his written statement that he was driving the said truck RJC 1261. It was owned by Manakmal, the accident took place and the deceased Umedaram died. The remaining allegations of the claim petition were denied. He has further averred that the deceased Umedaram was driving his motor cycle with an excessive speed on his wrong side, he had taken wine and the accident occurred due to his own negligence and carelessness. Similar is the written statement of the owner Manakmal. He has further averred that he had purchased the said truck from its previous owner Babulal. Babulal has stated in his written statement that the said truck No. RJC 1261 belonged to him and on October 7, 1985 he had sold it to Manakmal and he has expressed his ignorance about the accident. The United India Insurance Co. Ltd. admits in its written statement that the accident took place, deceased Umedaram died in the accident and insurance policy of the said truck was issued with effect from November 22, 1986 in the name of its owner Babulal. The remaining averments of the claim petition were denied. It has further been averred that the said truck was not in fact insured with it on the day of the accident, insurance premium was paid and all formalities were observed after the accident had occurred and as such it is not liable to pay any amount. After framing necessary issues and recording the evidence of the parties, the learned Tribunal awarded Rs. 1,17,400/- with interest against the insurance company only.
4. It has been contended by the learned counsel for the appellant that the said award could not be passed against the appellant when it was not passed against the owner of the insured vehicle and an excessive amount has been awarded as compensation. He also contended that the insured Babulal was not the owner of the said truck at the time of the accident as prior to it he had transferred it to Manakmal, the Tribunal committed an error in applying the multiplier of 30 and in holding the income of the deceased to be Rs. 600/- per month. He lastly contended that the maximum liability of the insurance company, appellant, was Rs. 50,000/- and as such the award in excess of this amount could not be passed against it. He relied upon Kanta Devi v. Dayal Singh 1991 ACJ 336 (HP) and Harjinder Kaur v. Shahni Devi 1991 ACJ 845 (P&H).
5. In reply, it has been contended by the learned counsel for the claimants, Mr. J.S. Choudhary, Advocate, that in view of the provisions of Section 96 (2) of the Motor Vehicles Act, 1939 it is not open to the insurance company to say that the said truck stood transferred, as such it is not liable to pay the amount of compensation and the amount for compensation awarded is excessive. He further contended that the insurance company has utterly failed to prove that the said truck was transferred by Babulal prior to the accident, the insurance policy was issued in favour of Babulal even after the date of alleged transfer, there was no question of Babulal getting the vehicle insured if he had sold it and this shows that the said truck was not in fact transferred to Manakmal. He relied upon Murari Lal v. Gomati Devi 1986 ACJ 316 (Rajasthan), Ignatius John v. Surajbai 1988 (2) ACC 288, Shankerlal v. Shankerlal 1988 ACJ 866 (Rajasthan) and Oriental Fire and General Insurance Co. Ltd. v. Rajendra Kaur 1989 ACJ 961 (Allahabad). The learned counsel for the respondents Babulal and Manakmal duly supported the award.
6. It has been held by this court in Shankerlal v. Shankerlal 1988 ACJ 866 (Rajasthan), that it is not open to the insurance company to contend that the offending vehicle stood transferred to some third person before the accident and as such it is not liable to pay compensation. In this case, the insurance company has also failed to prove that the said truck stood transferred before the accident. No evidence was produced by it. The claimants are not bound by the admissions made by Babulal and Manakmal in their written statements. Even according to their case, the insurance policy was again taken in the name of Babulal for the period from November 22, 1986 to November 21, 1987 despite the fact that the truck was earlier sold to Manakmal. This in itself shows that the offending vehicle was not in fact transferred in accordance with law and its ownership continued to vest in Babulal in whose name it was insured. Reference of Geetabai v. Hmsainkhan 1985 ACJ 44 (MP) and Raiyat Hussain v. Santosh 1990 (1) RLW 74, may be made here.
7. It is also not open to the insurance company to challenge the quantum of compensation awarded to the claimants.
8. It-is correct that no award has been passed against the owner and driver of the offending truck No. RJC 1261, it has only been passed against the insurance company and the liability of the insurance company arises only after the insured is made liable. It is not in dispute that the Tribunal has categorically held that the accident took place due to rash and negligent driving of the truck by its driver Tej Singh. As such his employer was also liable for his negligent act. Thus the Tribunal committed a serious error in not awarding compensation against the owner and driver of the offending truck. This error can be corrected by this court by invoking the provisions of Order 41, Rule 33, Civil Procedure Code even if no cross-objections or appeal has been filed by the claimants-respondents. It has been observed in Kok Singh v. Deokabai, AIR 1976 SC 634 at page 636, paras 6 and 7, as follows:
(6) In Giani Ram v. Rami Lal, AIR 1969 SC 1144, the court said that in Order 41, Rule 33 the expression ‘which ought to have been passed’ means ‘what ought in law to have been passed’ and if an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require. (7) Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial court, mat was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.
Reference of Murari Lal v. Gomati Devi 1986 ACJ 316 (Rajasthan), may be made here. When the insured is made liable, the insurer would also be liable to same payment of amount of compensation.
9. There is no force in the contention of the learned counsel for the appellant that the appellant could be made liable to the extent of Rs. 50,000/-. By Motor Vehicles (Amendment) Act, 1982, the words ‘Fifty thousand rupees’ have been substituted by the words ‘One lakh fifty thousand rupees’ in Clause (a) of Sub-section (2) of Section 95 of the Act dealing with requirements of policy and limits of liability. This amendment came into force with effect from October 1, 1982. Admittedly, the accident took place after this date. As such the insurance company could be made liable to pay the entire amount of compensation of Rs. 1,17,400/-. Thus there is no force in the appeal.
10. Consequently, the appeal is dismissed with costs. The respondent No. 8, Babulal and respondent No. 10, Tej Singh, are also made liable to pay the amount of compensation with interest. To this extent, the award under challenge is modified.
