Balwant Singh v. Jhannubai And Others

Mulye, J.:— The appellant has filed this appeal against an award dated 6/2/1973 passed by the Member, Motor Accidents Claims Tribunal, Indore in claim case No. 195 of 1968 whereby the claimants have been awarded compensation of Rs. 18,400/- with interest, which is payable by the appellant only.

2. Briefly stated the case of the respondent claimants nos. 1 to 7 who are the legal representatives of the deceased Devisingh before the Tribunal was that on 4-11-1968 at about 11-00 p.m while the deceased Devisingh was standing near Chetna Hotel situated at Bombay Bazar, Indore the appellant Balwant Singh in a heavily drunken state, drove the car no. U.P.I 6202 rashly and negligently with the result that it dashed against Devisingh who was severely injured and became unconscious at the spot. Devisingh died six days after in the M.Y Hospital, Indore where he was admitted for treatment. The claimants, therefore filed the petition claiming Rs. 40,000/- as compensation. According to the claimants, the age of the deceased at the time of the accident was about 50 years and his monthly income was approximately Rs. 400/- per month. The defence of respondent No. 1 Ramratan was that he had already sold the car in question to the appellant on 23-10-1968 as per document Ex. D/2 according to which the possession of the said car was also delivered to the appellant as the purchaser and owner on the very same day and the appellant had also agreed that subsequent to the date of sale, the appellant alone would be responsible and liable in case of any accident due to this car. Further according to him and he was not the owner of the car on the date the accident took place he could not be held legally liable.

3. The appellant by his reply denied even the factum of accident, the stand taken by him is that he was not driving the car at all at the relevant time and further denied that on the date of the accident respondent No. 1 Ramratan was the owner of the car.

4. The respondent no. 3, the insurance company set up the case that the said car which according to them belonged to respondent no. 4 Omprakash was insured with them by him for the period 12.3.1968 to 11.3.1969 and after the said respondent Omprakash sold the car to the respondent no. 1 Ramratan, Omprakash respondent no. 4 ceased to have interest in the said car and the policy of insurance was automatically extinguished as no effective policy of insurance in respect of the said car was in force on 4/11/1968 when the accident occurred, do liability can be fastened on the insurance company in absence of any subsequent policy issued in favour of respondent no. 1 Ramratan or the appellant Balwant Singh who were the successive purchasers of the said car.

5. Respondent no. 4 Omprakash came with the case that he had sold the said car to respondent no. 1 Ramratan on 23/9/1968 when the ownership of the car was also transferred and after the sale of the car he immediately intimated the respondent No. 3 insurance company for the cancellation of the original insurance certificate and it appears that as per Ex. D/3 the insurance company respondent No. 3 had covered the insurance of the said car for the period 6/1/1969 to 11.3.1969 in the name of respondent no. 1 Ramratan about which respondent no. 4 Omprakash was informed by a letter Ex. D/4.

6. With this type of contest between the parties, the learned member on evidence found that the appellant was the owner of the said car at the time of the accident and it is due to his rash and negligent driving of the said vehicle that the deceased Devi-singh received injuries to which he subsequently succumed. Her further found that the respondent no. 1 Ramratan as well as respondent no. 4 Omprakash could also be held not liable for any compensation as on the date of the accident both of them had no concern with the said car as its owner nor they were in possession of the same though the motor registration certificate even then stood in the name of respondent Ramratan when the unfortunate accident occurred. Respondent No. 3 the insurance company was also absolved of its liability as there was no subsisting insurance policy in respect of the said car in favour of the appellant when the accident occurred on 4.11.1968 and consequently compensation for Rs. 18,400/- with interest @ 6 percent per annum from the date of claim till the realisation was awarded against the appellant only.

7. It has been proved by the evidence of Gordhandasa (P.W 2) who himself was one of the victim of this accident as well as Gangacharan (P.W 6) who had witnessed the incident that the accident occurred due to the rash and negligent driving by the appellant who was then in a drunken state and was immediately after the accident arrested along with the car vide Ex. P/2 and Ex. P/3. The fact that the deceased—Devisingh received serious injuries due to this accident which resulted ultimately in his death has also been satisfactorily proved by the medical evidence of Dr. M.C Jain (P.W 1). This finding of the learned Member was not challenged before us on behalf of the appellant.

8. It was contended on behalf of the appellant that as the registration of the said vehicle under the Motor Vehicles Act stood in the name of respondent no. 1 Ramratan when the accident occurred, the legal ownership of the said car continued to be that of respondent no. 1 alone and in absence of any transfer of registration as contemplated by section 31 of the Motor Vehicles Act (hereinafter referred to as the Act) the appellant could not be held to be the owner of the car when the accident occurred and consequently he could not be held liable for compensation. It was further urged that the claim should have been decreed against the insurance company as well and lastly it was submitted that considering the evidence led by the claimants regarding the income of the deceased, the compensation awarded to the claimants is quite excessive and the average span of life of the members of the deceased family, in calculating the compensation on that basis, has been arrived at in absence of any evidence of the longevity in the family of the deceased.

9. As regards the first contention that the appellant was not the legal owner of the vehicle when the accident occurred and though the ownership in the appellant for all purposes could only be transferred when his name was entered in the registration record, as the condition precedent, the learned counsel for the appellant relied upon a Single Bench decision of the Delhi High Court reported in Vimal Roy v. Oriental General Insurance Co. Ltd. 1967 A.C.J 115, which has been subsequently followed by the Orissa High Court in a decision reported in Orissa Co-operative Insurance Society Ltd. v. Bhaeban Sahu 1971 A.C.J 49 wherein by applying the provisions of section 54 of the Transfer of Property Act it was held that the sale of a motor vehicle will not be governed by the law relating to the sale of immovable property as the motor vehicle to get the motor vehicle registered with the Registering Authority vide section 22 of the Act and on a perusal of section 24 regarding the method of registration of a motor vehicle and section 31 of the Act which deals with the transfer of a motor vehicle. It has been observed that ownership of a motor vehicle is to be evidenced by the registration as such with the motor registering authority and the registering book which is supplied as the document of title. It has therefore held that it is only the ostensible owner who is entered as such in the registration books who is to be considered the owner of the motor vehicle irrespective of the fact that its real ownership may be with somebody else.

10. However, the single Bench decision of the Delhi High Court reported in Vimal Roy v. Oriental Fire & Genl. Ins. Co. 1967 A.C.J 115 came up for consideration in a Letters Patent appeal anda Division Bench of that court in its decision reported in Oriental Fire and Genl. Ins. Co. Ltd. v. Vimal Roy 1972 A.C.J 314 has found itself unable to agree with the view taken by the learned Single Judge. In this Letters Patent appeal it has been held that according to the provisions of the Sale of Goods Act the sale of a motor car which is a moveable property is governed by the provisions of that Act and as soon as a sale of moveable property is completed by delivery of possession and acceptance of price in the manner agreed to and accepted by the parties, the contract is complete and the property in the goods immediately passes to the buyer when the contract is made and it has further been found that section 54 of the Transfer of Property Act has no application to the sale of a motor vehicle as that section exclusively deals with the sale of an immovable property and this authority has, after considering all the relevant provisions of the Motor Vehicles Act dealing with the ownership and its transfer, came to the conclusion that there is no provision of law stating that the registration of motor vehicle is a condition precedent for any transfer of the vehicle or that in the absence of registration the sale would be void or ineffective. On the other hand, an analysis of section 31 of the Act shows that it presupposes a valid and subsisting transfer by the registered owner of the vehicle to another person and the transferor is enjoined upon a duty within 4 days after the transfer to report the transfer to the authority and the transferee is, within 30 days required to report to the authority. The endorsement of the transfer in the records of the registering authority is, therefore not a condition precedent to the transfer, nor does it deal with the legality or validity of the transfer which must be determined by other provisions of the law. Should any person, in disregard of the provisions—of law, fail to intimate the transfer to the authority or may drive the vehicle in a public place without a certificate of registration he runs the risk of incurring the penalties provided by the Act, but his title to the purchase of the vehicle undoubtedly remains unaffected, nor does the title remain in suspense during the grace period allowed for effecting endorsements of registration. It has further been held by this decision that registration certificate is a very important piece of evidence to show the ownership of the vehicle for certain purposes. However, failure to do so, cannot be deemed to militate against the validity and legality of the passing of the title in the vehicle so transferred or to expose the innocent seller who may have done his all to complete the transfer to legal liabilities for acts and omissions in respect of the vehicle subsequent to the transfer. Moreover the certificate of registration is not a document of title, it is issued to the owner of the vehicle, that is the person by whom the vehicle is kept and used and although provision made for changes of ownership to be recorded in the book the name appearing in it may not be that of the legal owner of the vehicle, the registration book is evidence of title and its absence at the time of sale should put a purchaser on enquiry.

11. In our opinion, this view appears to be correct and we are in respectful agreement with the same. Similar view has also been taken in the decision reported in V. Muthuswami Gounder v. Thulasi Ammal 1970 A.C.J 18 and Phul Bus Service v. Financial Commissioner, Taxation, Punjab 1968 A.C.J 57. We are, therefore, unable to agree with the first contention advanced by the learned counsel for the appellant when the accident occurred.

12. That apart, the evidence produced regarding the sale of the vehicle by respondent No. 1 Ramratan to the appellant and the handing over of the possession immediately after the sale, has been proved by the evidence of respondent No. 1 Ramratan as well as Mohammad Yaqub (D.W 3) supported by the documentary evidence dated 23-10-1968 (Ex. D/2) in which the terms and conditions of the sale of the said motor car have been specifically mentioned and the appellant has also admitted the receipt of the actual possession of the said car in pursuance of this sale.

13. As regards the second contention that the insurance company cannot be absolved from its liability, learned counsel for the respondent—insurance company, placed reliance on the decisions reported in Govind Singh v. A.S Kailasam 1975 A.C.J 215; Oriental Fire and Genl. Ins. Co. Ltd. v. Meena Sharma 1975 A.C.J 335 and Gyarsilal v. Sitacharan A.I.R 1963 M.P 164. According to these decisions, it is by now well settled that in motor vehicles insurance policies, the motor vehicle is the subject matter of the insurance and the policy of insurance will be subsisting and will be operative only so long as the insured has the ownership of the vehicle. The moment there is any change in circumstances, such as the insured parting with the ownership of the vehicle the contractual liability of the insurer will cease to be operative and enforceable. Insurance policies, being uberrima fides contracts are governed by utmost faith in each of the constracting parties, and once the insured ceases to be the owner of the subject matter of the insurance, viz the motor vehicle, there is an automatic cessation of the liability of the insurer from the moment the insured ceases to be the owner of the vehicle. It is also well settled law that a contract of insurance is nothing but a contract of indemnity. The policy is with reference to a specified vehicle owned by the policy holder and consequently the policy remains effective while the policy holder retains an interest in the vehicle. In the absence of any express stipulation to the contrary in the policy the moment the insured parts with the car, the policy relating to it lapses. The insurance policy being a contract of personal indemnity, the insurers cannot be compelled to accept responsibility in respect of third party who may be quite unknown to them.

14. We may here usefully quote the observations made by this Court in the decision reported in Gyarsilal v. Sitacharan 1970 A.C.J 18.

“20. The argument advanced by Shri Thakur learned counsel appearing for the insurance company, was that the policy issued to cover third party risks was a policy of indemnity of the person named in the policy, who was Dr. Joshi that he was the only person entitled to indemnity by virtue of section 95(5) of the Motor Vehicles Act that if the company had consented to a transfer of the interest in the policy in favour of Gyarsilal be would have become entitled to the cover of indemnity but that there was no proof that the company ever gave its consent to the transfer, and that in fact Gyarsilal, or Dr. Joshi never informed the company about the sale of the car and Gyarsilal never made a proposal for a new policy and a certificate of insurance being issued in his favour.

21. On this part of the case the controversy is therefore centered round the question whether the insurance policy held by Dr. Joshi in respect of the Ford car was or was not transferred to Gyarsilal. Now it is quite true that a motor insurance policy is a contract of personal indemnity and the assured cannot claim the insurance amount when he does not suffer any loss or damages. It is clear that where a car insured against damage, third party risks etc. is transferred by the owner to another person, the owner himself retaining no interest in the car, and if subsequently the car is involved in an accident causing damage to it and injuries to others the owner cannot recover from the insurer any amount in as much as he cannot be said to have suffered any loss Again, the purchaser of the car cannot also in the absence of an assignment of the policy in his favour or a statutory provision claim the insurance amount from the insurer. Here there is no statutory provision either in the Motor Vehicles Act or in the Insurance Act about the transfers right under a motor insurance policy. The matter is governed by the clause reproduced earlier. It is, however, important to note that a clause in a motor car insurance policy with regard to the transfer of the policy in the event of the sale of the car to which it relates is really not a clause with regard to the assignment of the policy. Such a policy being a contract of personal indemnity cannot be assigned when it is transferred, there is only a novation of the contract by which the original assured is released and a new assured is accepted. In this connection, it would be pertinent to refer to the observations of Goddard, J. (as he then was) in Partners v. General Accident Fire and Life Assurance Corporation Ltd. (1937) 4 All E.R 628. Dealing with the question whether when a motor car insurance policy is transferred by the owner-vender to a purchaser, there is an assignment of the policy, Goddard, J. said:

‘I do not think that you can assign a policy of this nature at all. You can assign your right to receive money under it. If an accident has occurred, and you have a right to be indemnified by your insurer or if your car has been destroyed so that you have a right to be paid by your insurers you can assign your right to anybody you choose, subject to the Road Traffic Act. In view of the statutory provisions, I do not think that you can assign away your right so as to prevent the injured person from recovering the money. At any rate the insurance company would not pay it because otherwise they might be liable to pay twice over. In all contracts of insurance I am not dealing with marine insurance, because different considerations apply in marine insurance nor am I dealing with life insurance, which is not really insurance in the proper sense of the term at all. I am dealing with burglary, fire, accident and so forth—I do not think you can assign the policy so as to make of what is a contract of personal indemnity to A a contract of personal indemnity to B. I hope I have made that clear. You cannot thrust a new assured upon company against its will. If you do that you must have a novation. You must have the release of the assured and the acceptance of a new assured.’ These observations make it very clear that when a question is raised as regards the transfer of a motor insurance policy containing a clause regulating its transfer to the purchaser of the car then what is to be seen and determined is whether there has been a novation of the contract of personal indemnity in terms of the clause. The requisites for the novation of a contract are well known (see section 62 of the Contract Act). One of the requisites is that there must be agreement of all the parties to the new contract on the principles generally applicable to the formation of contracts, it cannot be disputed that the consent of parties to a novation may be established by circumstances showing such assent as well as by express words. The question whether there was an agreement to substitute a new contract or not is a question of fact depending on the intention of the parties and one must look to the substance of the matter and not to mere form. The handing over of the policy by the vendor to the purchaser on the sale of a car does not by itself constitute a transfer of the policy to the purchaser.”

15. In the instant case, admittedly, when the accident occurred on 4-11-1968, there was no subsisting insurance policy in existence as respondent No. 4 Omprakash after the sale of the car to respondent No. 1 Ramratan on 23-9-1968 had informed the insurance company about the sale of the said vehicle which is also evidenced by letter (Ex. D/4) received by respondent No. 4 Omprakash from the insurance company. Even according to the certificate of insurance (Ex. D/3) issued in the name of respondent No. 1 Ramratan, the insurance period covered is only between 6-1-1969 to 11-3-1969 i.e much after the date of the incident. This certificate also provides a term that this certificate is not transferable to a new owner of the vehicle Admittedly, the insurance policy issued in the name of respondent No. 4 Omprakash has not been produced and proved in this case, in absence of which it is difficult to consider the question of liability of the insurance company as such. However, there appears no reason to doubt the testimony of respondent No. 4 Omprakash that immediately after the sale of the car in favour of the respondent No. 1 Ramratan, he had actually intimated the insurance company about the same as the same has not been challenged or controverted by the insurance company leading any evidence nor there is any other evidence to indicate that the insurance policy was subsisting when the accident occurred. There is no material also placed on record to indicate how after the sale of a vehicle, the transfer in the insurance policy is effected in the name of the new purchaser and what formalities are required to be undertaken and complied with by the parties concerned for giving due effect to the transfer of the insurance policy in the name of the purchaser that the insurance company had agreed to keep the policy subsisting after its sale by respondent No. 4 Omprakash to respondent No. 1 Ramratan, the insurance company in these circumstances cannot be held liable for payment of compensation and therefore we see no reason to differ from the conclusion arrived at by the learned member on this issue.

16. The last contention of the learned counsel for the appellant that the compensation awarded to the respondent-claimants is heavy has some force and deserves consideration. It is true that there is no evidence regarding the period of longevity in the family of the claimants. However, the learned member had found that at the time of death, deceased Devisingh was about 52 years of age and considering the average span of life of an Indian in the modern condition, the deceased could have normally lived up to the age of 75 years and considering this probable expectancy of life, he calculated the income of the deceased for a period of about 23 years more of which family has been deprived due to his death. This probable expectancy cannot be said to be unreasonable and we see no reason to interfere in the assessment arrived at by the learned member on this aspect. As regards the income received by the deceased the only evidence is that of the claimant—Jhannubai who has deposed that her husband was having 5 bighas of agricultural land where from he was having an annual income of Rs. 400/- and in addition he was also earning about Rs. 400/- per year as a labourer in the village though subsequently she also tried to depose that he was earning Rs. 400/- per month as a labourer. However, this part of the statement does not appear to be reliable. Thus, at best the income of the deceased as labourer did not exceed Rs. 400/- per year. However, she has further admitted that despite the death of her husband, there has been no change in the income derived from agriculture and that she is still earning Rs. 400/- annually by way of agricultural income. As this agricultural income still continues cannot get any compensation for this income as on this count there is no loss or deprivity of income due to the death of the deceased while awarding compensation what has to be considered is what income has been actually lost due to the accidental death of the deceased and out of that earning how much the family has been deprived of as the deceased must have also been spending something upon himself out of that income derived as a labourer also. The respondent claimants have not led any other evidence regarding the income of the deceased. Thus, on a fair estimate we can take the figure of Rs. 400/- as the annual income of the deceased as a labourer and it is on this basis only that the quantum of compensation can be arrived at. Thus, in our opinion, calculating at the rate of Rs. 400/- per year, multiplied by 23 years, the claimants are entitled to a compensation of Rs. 9,200/-. It appears that learned member while awarding compensation failed to deduct the income derived by the deceased from agriculture which still continues and consequently compensation awarded by treating the income of the deceased at Rs. 800/- per year cannot be taken into consideration as the basis for compensation and eventually the compensation of Rs. 18,400/- awarded by the learned member at that rate has to be brought down to Rs. 9,200/- as stated above. It was also contended that in case of a lump sum payment some percentage has also to be deducted but considering the fall in the value of money, of which judicial notice can be taken, we are of opinion that it is not proper and desirable to make any such deduction.

17. In the result, this appeal succeeds partly. The compensation of Rs. 18,400/- awarded by the learned member is reduced to Rs. 9,200/- which appears to be just and proper and shall carry interest @ 6 percent per annum from the date of the application i.e 5-12-1968 till this amount is paid by the appellant—Balwant Singh to the respondent-claimants. Rest of the award is maintained. The appellant shall pay the costs of this appeal to the respondent-claimants. Counsel's fee according to schedule, if certified.