Rangasamy vs Periammal and Others

V. Ratnam, J.—This appeal, u/s 110-D of the Motor Vehicles Act, has been preferred by the owner of the vehicle against the award of the

Motor Accidents Claims Tribunal (Sub-court), Cuddalore, for Rs. 17,000/- passed against the appellant, in C.P. No. 365 of 1979 filed by

respondent Nos. 1 to 4 against the appellant and the fifth respondent herein praying for payment of compensation in a sum of Rs. 35,000/- in

respect of the death of Kaliyan, the husband of the first respondent and father of respondent Nos. 2 to 4.

According to the case of respondent Nos. 1 to 4, on 21.5.1979 at about 8.30 a.m. when Kaliyan was proceeding on his cycle towards east in

the Salem-Kallakurichi Main Road, the lorry bearing registration No. MYM 6583 belonging to the appellant and insured with the fifth respondent

was driven in a rash and negligent manner by its driver Veerasamy and dashed against Kaliyan, resulting in his death on the spot. Claiming that

deceased Kaliyan at the time of his death was aged about 42 years and was earning about Rs. 350/- per month as an agricultural labourer,

respondent Nos. 1 to 4 prayed that compensation in a sum of Rs. 35,000/- for the death of Kaliyan should be awarded under the several heads

set out in their petition.

The appellant in his statement contended that the accident did not take place owing to the rash and negligent driving of the lorry MYM 6583 by

its driver. It was also the case of the appellant that the quantum of compensation claimed by respondent Nos. 1 to 4 was exorbitant and excessive.

In its statement, the fifth respondent maintained that the accident took place not due to the rash and negligent driving of the lorry. It was its further

plea that the appellant was a transferee of the lorry from one Kandasamy as early as 29.1.1979 and as the transfer had not been communicated to

it and a change of the insurance in the name of the appellant had also not been effected, it was not liable to pay any compensation. The amount of

compensation claimed was also characterised as excessive.

Before the Tribunal, on behalf of respondent Nos. 1 to 4, Exhs. A-1 to A-4 were marked and the first respondent and the husband of the third

respondent were examined as PWs. 1 and 2, while the appellant gave evidence as RW1. On a consideration of the oral as well as the

documentary evidence, the Tribunal found that the accident took place owing to the rash and negligent driving of the lorry belonging to the

appellant by its driver, the respondent Nos. 1 to 4 are entitled to recover a sum of Rs. 17,000/- by way of compensation and that as the vehicle

responsible for causing the accident had not been insured with the fifth respondent on the date of the accident, no liability could be fastened on the

fifth respondent for payment of compensation to respondent Nos. 1 to 4. On those conclusions, the Tribunal passed an award against the appellant

for a sum of Rs. 17,000/-with interest at 6 per cent per annum from 12.12.1979 till the date of payment. The Tribunal also apportioned the amount

of compensation inter se amongst respondent Nos. 1 to 4 and held that the first respondent will be entitled to Rs. 7,625/- and respondent Nos. 2

to 4 to Rs. 3,125/- each with corresponding interest thereon. It is the correctness of the award so passed by the Tribunal that is questioned in this

appeal.

Learned counsel for the appellant first contended that the conclusion of the Tribunal regarding the rash and negligent driving of the lorry

belonging to the appellant is erroneous. According to learned counsel, deceased Kaliyan as he was proceeding on the cycle suddenly turned from

the northern to the southern side of the east-west Salem-Kallakurichi Main Road and in that process, the accident had taken place. On the other

hand, learned counsel for respondent Nos. 1 to 4 submitted that the earliest report regarding the manner in which the accident took place under

Exh. A-1 considered along with the evidence of PW 2 clearly established that the accident took place only on account of the rash and negligent

driving of the lorry belonging to the appellant by its driver.

Regarding the manner in which the accident took place, the available evidence consists of the oral testimony of PW 2 and also the certified copy

of the First Information Report under Exh. A-1 given by the driver of the lorry immediately after the accident. According to PW 2, Kaliyan, his

deceased father-in-law and himself were proceeding from west to east on bicycles on 21.5.1979 along Salem-Kallakurichi Main Road and that

deceased Kaliyan was allowed to go ahead as PW 2 wanted to smoke and at that time, the lorry belonging to the appellant which came from

behind overtook him and went ahead and dashed against Kaliyan, which resulted in his falling down from the cycle and sustaining injuries. His

further evidence is that the lorry went away without stopping and he went to Chinna Salem Police Station and found that the lorry was already

there and he too gave a complaint. He had refuted the suggestion that the deceased who was proceeding from east to west suddenly turned

towards the southern side and that was responsible for the accident. Though nothing has been elicited in the evidence of PW 2 to discredit his

testimony, learned counsel for the appellant pointed out that PW 2 did not see the lorry belonging to the appellant actually hitting the deceased and,

therefore, the accident could not be stated to have taken place in the manner alleged by PW 2. It may be that PW 2 who was following deceased

Kaliyan at some distance behind was not in a position to see the actual hitting of the cycle by the lorry. But that would not render his testimony

regarding the taking place of the accident in the manner spoken to by him unacceptable. It is not the case of the appellant that at the time of

accident some other vehicle not belonging to the appellant was passing by that road and that too along the same direction in which deceased

Kaliyan was proceeding on his cycle. The stand taken by the appellant that deceased Kaliyan suddenly turned towards the southern side of the

road is clearly indicative of the attempt of the appellant to attribute the accident to the negligence of the deceased. In other words, while accepting

that an accident took place, the appellant had attempted to shift the responsibility therefore to the deceased himself and under those circumstances,

the fact that PW 2 had not seen the lorry hit the deceased would not be material. Further, the earliest report on the accident given by the driver of

the lorry under Exh. A-1 clearly discloses that the lorry had hit the deceased and that was responsible for the accident. In Exh. A-l, the driver of

the lorry belonging to the appellant had clearly stated that as he was driving the lorry, another lorry from behind overtook it and he swerved the

lorry to the left side and at that time, the lorry hit the cyclist going ahead of him resulting in his instantaneous death. In view of the very clear manner

in which the taking place of the accident has been set out by the driver of the lorry in Exh. A-l, it is obvious that the driver of the lorry was

negligent; as otherwise, merely swerving the lorry to the left side of the road is not likely to have resulted in an accident. What is significant is that in

Exh. A-l, it has not been stated that the accident took place owing to the sudden turning of the cycle from the left side of the east-west road to the

right side. Apart from it, from Exh. A-1 it is seen that the driver of the lorry belonging to the appellant had turned the lorry towards the left side in

order to give way for another lorry to overtake him and the fact that while doing so, it had hit the cyclist proceeding ahead shows that the lorry had

been driven and swerved in a rash and negligent manner. It is also not in dispute that the driver of the lorry had been convicted for an offence u/s

304-A, Indian Penal Code. As against this evidence, the evidence of RW 1 is not useful at all in ascertaining the cause of the accident. While

accepting that the lorry was driven by Veerasamy at the time of the accident, RW 1 admitted that he did not visit the place of the accident or even

the hospital to see deceased Kaliyan. The evidence of RW 1 is thus of no use in ascertaining the cause of the accident. From the evidence of PW 2

and the contents of Exh. A-1 referred to earlier, it is clearly established that the accident resulting in the death of Kaliyan was caused only as a

result of the rash and negligent driving of the lorry belonging to the appellant by its driver. The Tribunal was right in its conclusion on this aspect of

the case.

Learned counsel for the appellant next contended that the quantification of the amount of compensation awardable to respondent Nos. 1 to 4 in

the manner done by the Tribunal is erroneous. It was pointed out that there was a discrepancy in the age of the deceased as well as the income

earned by him and the amount of compensation determined by the Tribunal was excessive. However, learned counsel for respondent Nos. 1 to 4

submitted that the wife of the deceased is an illiterate woman and no weight could, therefore, be attached to the age of the deceased as given by

her and that the medical opinion established that the deceased was about 50 years at the time of his death and the other evidence established that

the deceased would have made available to his family not less than Rs. 75/- per mensem and the computation of the compensation on this basis by

the Tribunal cannot be taken exception to.

Though in the petition the age of the deceased had been mentioned as 42 years, the first respondent examined as PW 1 in her chief-examination

stated that he was about 40 years old. But in cross-examination, she stated that she is 50 years old and her deceased husband was 10 years older

than herself. Obviously, from the evidence of PW 1 it is not possible to determine the age of the deceased, especially when it is not disputed that

PW 1 is an illiterate woman not well versed in worldly affairs or about the age or date of birth, etc. The post-mortem certificate under Exh. A-3

shows that the deceased was aged about 50 years and that had been estimated by a qualified professional doctor and in the absence of other

reliable evidence, on the basis of Exh. A-3, the age of the deceased could be fixed at 50, when the accident took place. The Tribunal was,

therefore, right in holding so. Even so regarding the expectancy of life, the Tribunal cannot be stated to have committed any error in holding that the

deceased would have lived for a further period of 15 years, but for the accident. Regarding the income earned by the deceased, though in the

petition it was stated that the deceased was earning Rs. 450/- per month at the rate of Rs. 15/- per day by doing agricultural work, PW 1 stated

that he earned about Rs. 15/- to Rs. 20/- a day by doing brokerage in cattle business. Apart from her solitary testimony, the earnings of the

deceased from cattle business had not been mentioned in the petition. Even so, the earning by the deceased as an agricultural labourer could not be

ruled out on the available evidence. The Tribunal took into account that deceased would have earned at least Rs. 5/- per day, out of which he

would have been able to spare for his family Rs. 2.50 or Rs. 75/- per month. The contribution by the deceased to his family has thus been taken at

a very low or minimum figure. In the absence of acceptable evidence to show that the deceased was not earning anything at all, the minimum

amount of contribution fixed by the Tribunal cannot be characterised to be incorrect or excessive. The loss of dependency for a period of 15 years

at Rs. 75/- per mensem comes to Rs. 13,500/- and giving an allowance for a lump sum payment, compensation in respect of loss of dependency

could be fixed justly, reasonably and fairly at Rs. 12,500/-. In so far as the first respondent is concerned, she had lost the consortium of her

husband for a period of 15 years and for that, the award of compensation in a sum of Rs. 4,500/- is also fair and just. On a consideration of the

available evidence, the Tribunal cannot be stated to have fixed the compensation payable to respondent Nos. 1 to 4 in a sum of Rs. 17,000/-

either at a high or exorbitant and excessive amount.

Lastly, learned counsel for the appellant contended that the view taken by the Tribunal that no liability could be fastened on the fifth respondent

on the ground that there was no privity of contract between the appellant and the fifth respondent is incorrect. According to learned counsel,

despite the fact that the insurance in respect of the lorry stood in the name of Kandasamy, the vendor of the appellant, although the registration

certificate had been changed in the name of the appellant long before the taking place of the accident, the insurance company continued to be liable

on the basis of the policy issued in favour of Kandasamy, as lapse of a policy on transfer of the vehicle is not one of the permissible defences u/s

96 (2) of the Motor Vehicles Act. Reliance in this connection was placed by learned counsel for the appellant upon the decision reported in

Madineni Kondaiah v. Yaseen Fatima 1986 ACJ 1 (AP) and Dharman and another Vs. N.C. Srinivasan and others, . On the other hand, learned

counsel for the fifth respondent submitted that there was no policy at all covering the vehicle owned by the appellant issued by the fifth respondent

and the only cover that was issued by the fifth respondent was in favour of Kandasamy, from whom the appellant had purchased the lorry and the

transfer of the vehicle was not intimated to the insurance company and that brought about a lapse of the policy and, therefore, no liability could be

fastened on the fifth respondent, insurance company. It was also pointed out that though the appellant appears to have got the vehicle transferred in

his name by petitioning to the Regional Transport Officer, he had not intimated the insurance company for changing the policy in his name, as a

purchaser of the vehicle. Attention in this connection was drawn to the decisions in M. Bhoopathy v. M.S. Vijayalakshmi 1966 ACJ 1 Queensland

Insurance Co. Ltd. v. Rajalakshmi Ammal 1970 ACJ 104 South India Insurance Co. Ltd. v. Lakshmi 1971 ACJ 122 Hema Ramaswami v. KM.

Valarence Panjani 1981 ACJ 288 and Calcutta Insurance, Madras, now known as National Insurance Co. Ltd. v. Thirumalai Ammal 1982 ACJ

(Supp) 299 . It was further contended that a case where there is no policy at all is very different from one where there is a policy, but the liability

could be avoided on one or more of the grounds set out u/s 96 (2) of the Motor Vehicles Act. It was, therefore, urged that the decisions relied on

by learned counsel for the appellant in Madineni Kondaiah v. Yaseen Fatima 1986 ACJ 1 (AP) and Dharman and another Vs. N.C. Srinivasan

and others, , would not have any application.

Before proceeding to consider this contention, it would be desirable to briefly examine the factual position regarding the ownership of the

vehicle and the insurance therefor. The appellant admitted that he purchased the lorry from Kandasamy of Kollegalam on 29.1.1979 and that the

registration certificate in respect of the vehicle had also been changed in his name on 8.2.1979 with effect from 29.1.1979. Though the appellant

claimed that he had sent a postcard to the fifth respondent for changing the policy in his name, there is absolutely no acceptable or reliable evidence

in support of it. It is also difficult to accept that a requisition for transfer of the insurance policy would have been made by the appellant on a

postcard sent by ordinary post without even so much as obtaining a certificate of posting. The resulting factual position, therefore, is that on

21.5.1979, when the accident took place, though the appellant was the owner of the lorry, the vehicle was not covered by an insurance policy

issued in the name of the appellant, as owner of the vehicle.

It is in the background of the factual position so obtaining in this case that the liability of the fifth respondent, in view of the policy issued by it in

favour of the transferor of the appellant, has to be considered. A contract of insurance in relation to a vehicle is one of personal indemnity confined

to the owner and the liability of the insurance company is determined by the terms and conditions of the policy by which the risk is covered. The

liability under such a cover is with reference to a specified vehicle owned by the policy-holder and to cover the risk arising out of its use.

Ordinarily, the cover is effective only so long as the person in whose favour the cover is issued retains the interest in the vehicle covered by the

policy and on the cessation of such interest, the cover ceases to be effective. It is not the case of the appellant that there was any provision in the

policy for transfer. On a transfer of the vehicle, there is no substitution of the transferee, as the beneficiary of the personal indemnity. Under the

provisions of the Motor Vehicles Act also, there is no statutory provision as it were, in cases of transfer of a vehicle. When a vehicle under cover is

sold by the then owner and the concerned insurance company is not informed about it or even requested to transfer the benefits of the cover in

favour of the transferee, the insurance company is entitled to say that it knows nothing about the transferee, as he was not on its books and,

therefore, so far as the insurance company is concerned, he is uninsured and there is no policy at all covering the vehicle in the name of the

transferee. It is in this context that Section 103-A of the Motor Vehicles Act is relevant. Thereunder, the procedure for transfer of the policy of

insurance relating to a vehicle on its sale is laid down and according to that, the transferor should apply to the insurance company for the transfer of

the certificate of insurance and the policy in favour of the person to whom the vehicle is proposed to be transferred and if the insurer fails to

intimate the insured or such other person within 15 days of the receipt of such application by the insurer, its refusal to transfer the certificate of

insurance 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 vehicle is transferred effective from the date of its transfer. u/s 103-A (2), the insurer to whom such

an application is made by the transferor may refuse to transfer the certificate of insurance and the policy under certain conditions. Section 103-A

(3) further provides that in the event of the refusal of the insurer to transfer the certificate of insurance and the policy in favour of the transferee to

whom the vehicle has been transferred, the insurer is bound to refund to such transferee the amount, if any, under the terms of the policy, the

insurer would have had to refund to the insured, for the unexpired term of such policy. The aforesaid provision outlining the procedure for securing

the benefits of a policy issued in favour of the transferor clearly recognises the principle that a new assured cannot be thrust on the insurance

company against its will. Except, therefore, in cases where an application has been made by the transferor for transfer of the certificate of insurance

and the policy and the insurer has not intimated his refusal to transfer the certificate of insurance and the policy to the transferee within 15 days, the

transfer of the certificate of insurance and the policy could be effected only by the insurance company agreeing to such a transfer, while it has also

an option to refuse a transfer on the grounds specified in Section 103-A (2) of the Motor Vehicles Act. To generally view the transfer of a vehicle

as carrying with it the benefit of the certificate of insurance and the policy would not be proper, as, in such an event, the insurance company should

be regarded as having issued two policies agreeing to indemnify under one the transferor with reference to a particular vehicle and under another

wholly irrespective of the ownership of any vehicle. Bearing these principles in mind, it would now be relevant to refer to the decisions to which

attention has been drawn. In M. Bhoopathy v. M.S. Vijayalakshmi 1966 ACJ 1 the question arose as to the effect of the transfer of a vehicle on

the policy issued with reference to that vehicle by the insurer. After an elaborate consideration of the basic principles and the provisions of the

Motor Vehicles Act, the Division Bench held that the continued ownership of the car with the insured is basic to the subsistence of the policy and

once the subject-matter of the policy is gone, so when parted with by the insured, the policy automatically lapses and there is nothing for the insurer

to avoid it. Again, in Queensland Insurance Co. Ltd. v. Rajalakshmi Ammal 1970 ACJ 104 another Division Bench took the view that an

insurance policy is a contract of personal indemnity and insurers cannot be compelled to accept responsibility in respect of a third party unknown

to them and as the insurance company has not issued a policy to the then owner of the vehicle at the time of the accident, it is not precluded from

raising pleas in defence other than those mentioned in Section 96 (2) of the Motor Vehicles Act. It was also further pointed out that the policy

issued to the original owner lapsed on his parting with the property in the car. In South India Insurance Co. Ltd. v. Lakshmi 1971 ACJ 122 the

vehicle involved in the accident had been transferred by the insured before the accident, but the registration continued to remain in his name. The

insurance company sought to repudiate its liability on the ground that the policy lapsed upon the physical transfer of the vehicle. The claimants,

however, maintained that until the transfer was duly registered as envisaged in Section 31 of the Motor Vehicles Act, 1939, the transfer of the

vehicle did not take effect in so far as the third parties were concerned. It was laid down that though change of registry u/s 31 was not a condition

precedent for the transfer of ownership and that provision merely cast an obligation on the transferor and the transferee of the vehicle to notify the

transfer, the non-compliance with which did not invalidate the transfer, yet the policy of insurance came to an end when a vehicle is physically

transferred by an owner. In Hema Ramaswami v. K.M. Valarence Panjani 1981 ACJ 288 it was reiterated that on the transfer of a vehicle, the

insurance policy taken by the transferor cannot be taken to subsist, unless the benefits of the policy are transferred to the transferee and Section 96

of the Motor Vehicles Act did not support the view that a sale or transfer of an insured car by the insured during the currency of the policy, does

not terminate the policy. In Calcutta Insurance, Madras, now known as National Insurance Co. Ltd. v. Thirumalai Ammal 1982 ACJ (Supp) 299

it was pointed out that where there is neither an application for the transfer of the certificate of insurance and the policy in the prescribed form nor

at least a request therefor, there is no question of implied agreement by the insurance company to accept the transferee as an insured in the place of

the transferor under the terms of the policy. It has thus been clearly and without any doubt uniformly laid down by a series of decisions rendered by

Division Benches of this court that there is no question of the transferee becoming entitled to the benefits under a policy on a transfer of the vehicle

by the transferor and that in such cases, on such transfer, the policy issued already in favour of the transferor lapses, when no request for the

transfer of the benefits of the policy is also made by the transferor along with the vehicle. The decisions relied on by learned counsel for the

appellant may now be considered. In so far as the decision in Madineni Kondaiah v. Yaseen Fatima 1986 ACJ 1 (AP) is concerned, that had

dissented from the view taken in the decisions rendered by the Division Benches referred to above and that decision cannot, therefore, be taken to

be authoritative and binding in so far as this court is concerned. In so far as the other decision in Dharman and another Vs. N.C. Srinivasan and

others, is concerned, it proceeds on the basis that the defence of lapse of a policy on transfer of the vehicle cannot be raised within the framework

of Section 96 (2) of the Motor Vehicles Act, 1939. In so holding, there is no reference to anyone of the series of Division Bench judgments of this

court noticed above. It is rather unfortunate that the decision has been rendered without even saying anything about the earlier decisions. It has to

be remembered that the rendering of a decision without noticing the consistent view taken in a long line of unquestioned Division Bench judgments

is likely to create a lot of confusion in the Tribunals entrusted with the task of deciding similar questions that may arise before them in claim

petitions. Even though there is no reference to the decisions of the Division Benches referred to earlier in the decision in Dharman and another Vs.

N.C. Srinivasan and others, , it appears to me that the decision has proceeded on a totally erroneous understanding and application of the two

decisions of the Supreme Court referred to therein. In British India General Insurance Co. v. Capt. Itbar Singh 1958 65 ACJ 1 (SC), the Supreme

Court was not considering the case of a transfer of a vehicle and its effect on the rights of the transferee of the vehicle, under the terms of a policy

issued in favour of the transferor by the insurance company. Further, it is seen that the decision proceeded on the footing that the owners of the

cars in those cases were insured against third party risks and this is clear from the opening paragraph of the judgment and also paragraph 4 thereof.

The question that arose for decision was, whether the insurers, subsequently added as defendants in an action for damages, could be permitted to

raise defences falling outside Section 96 (2) of the Motor Vehicles Act, 1939. It is thus seen that on the facts of that case, there were valid and

operative covers for the vehicles at the time of the accident and when the insurer attempted to raise defe nces falling outside Section 96 (2) of the

Motor Vehicles Act, the Supreme Court pointed out that the insurance company cannot be permitted to raise defences to avoid liability, except on

the grounds provided u/s 96 (2) of the Act. Even on a consideration of Section 96 (1) and (2), it is clear that the liability of the insurer is one

covered by the terms of the policy and that liability could be avoided on one or more of the grounds enumerated in Section 96 (2) of the Act.

Thus, it is seen that Section 96 (2), read along with Section 96 (1) of the Act, clearly postulates the subsistence of an insurance policy and the

avoidance of liability by the insurance company on the grounds enumerated in Section 96 (2) (b) of the Act. The provision u/s 96 (2) (b) of the

Motor Vehicles Act cannot, therefore, be pressed into service to fasten liability on an insurance company, even in a case where there is no policy

or cover at all, as in this case. In the other decision in New Asiatic Insurance Co. v. Pessumal Dhanamal Aswani 1958-65 ACJ 559 (SC), relied

on in Dharman and another Vs. N.C. Srinivasan and others, , the question as to what should happen to the policy on transfer of the vehicle did not

at all arise for consideration. On the other hand, the decision turned upon the provisions in the policies regarding the liability of the insurance

company. That decision, therefore, did not deal with a situation as here, where the appellant had not been issued a policy at all by the fifth

respondent after he became the owner of the vehicle. In other words, where the subsistence of a contract of insurance is itself questioned, it would

not be a case contemplated by Section 96 (2) at all, for, as pointed out earlier, those provisions proceed on the basis of the subsistence of a valid

cover and the grounds available to the insurance company for avoiding its liability under such a cover. There is no question of avoidance of liability

by the insurance company under a contract on one or more of the grounds enumerated u/s 96 (2) of the Motor Vehicles Act, when there is no

subsisting contract at all. Therefore, the reliance placed by the decision in Dharman and another Vs. N.C. Srinivasan and others, on the decisions

of the Supreme Court and also Section 96 (1) and (2) of the Motor Vehicles Act is not of any assistance at all in the determination of the question

of the liability of an insurer, when a vehicle already covered by such insurer is transferred and the transferee is not covered by a policy after

becoming the owner of the vehicle by the same insurance company. To apply the decision in Dharman and another Vs. N.C. Srinivasan and

others, , to the situation as it obtains in this case, would be not only to go against the long line of decisions of this court, but also to fasten liability on

an insurer, who had nothing whatever to do with the transferee of the vehicle. In other words, to recognise and give effect to the liability of the

insurance company, even after a transfer of the vehicle, on the basis of a policy of insurance issued in favour of the transferor, would be to enable

the Tribunal or the court, as the case may be, to find a new contract between the transferee and the insurance company, while, in fact, there is none

and saddle the insurance company with liability. That plainly is not the intention of the Motor Vehicles Act, 1939 or the function of either the

Tribunals or the courts as appellate authorities, under the provisions of the Motor Vehicles Act. Thus, on a careful consideration of the facts and

circumstances and also the relevant decisions having a bearing upon the question for decision, no liability could be fastened upon the fifth

respondent. The civil miscellaneous appeal is, therefore, dismissed with costs of respondent Nos. 1 to 5.