Asthana, J.:— The Northern India General Insurance Company Limited has appealed against the award of the Motor Accident Claims Tribunal, Meerut, specifying the amount at Rs. 20,000/- payable by it to the respondent 2nd Lt. Kanwar Jit Singh Sobti.

2. A motor truck number DIG 3859 was acquired by Ram Prakash Thukral from Delhi by arrangement through a firm of financiers. On 1-5-1965 Ram Prakash Thukral got the said truck registered in his name with the Regional Transport Auhority, Meerut under the Motor Vehicles Act. Then a transfer entry was made in the office of the Regional Transport Officer and the said truck was registered in the name of Gopal Das on 3-9-1965. Gopal Das thus became the registered owner of the said truck and obtained a registration certificate under the Motor Vehicles Act. Gopal Das then affected an Insurance Policy covering risk to third party with the Northern India General Insurance Company Ltd. (hereinafter called the insurer) covering the risk for the period one year commencing from 2-5-1968 and ending with 2-5-1969.

3. As luck would have it, when the said truck was being driven by Ram Dayal driver on 21-10-1968 in connection with transporting the materials belonging to Ram Prakash Thukral, it met with an accident on the Meerut-Roorkee Road crushing second Lt. Kanwar Jit Singh Sobti and a friend of his riding on a scooter being driven by 2nd Lt. Sobti. As a result of the accident, 2nd Lt. Sobti was severely injured, while his friend escaped with minor injuries. The scooter was also badly damaged. 2nd Lt. Sobti was ultimately removed by the Military authority to Hospital in Poona where his right leg was amputated from a point six inches above the knee. The loss of the leg made 2nd Lt. Sobti useless for a future Army career. Lt. Col. B.S Sobti, the father of 2nd Lt. Sobti then presented a claim on behalf of his son 2nd Lt. Sobti in the appropriate form before the Motor Accidents claims Tribunal, Meerut, for a compensation of rupees two lacs. In the column of owners the names of Ram Prakash Thukral, Gopal Das and Ram Dayal were entered and in the column of the insurer the name of the appellant company was entered in the statement of claim. After the notice had been served on the above said persons written statements were filed contesting the claim. Inter-alia it was pleaded by Ram Prakash Thukral that he was not the owner of the motor truck number DLG 3859 and was under no legal liability to pay any damages. Gopal Das admitted himself to be the sole owner of the said truck and so did Ram Dayal admit that he was driver of the truck. They contested the claim mainly on the plea that the injury was received by the claimant 2nd Lt. Sobti on account of his own negligence and rashness and not on account of any fault of Ram Dayal, who was driving the truck. The defence set up by the insurer, inter-alia, was that the insurance policy was void ab-initio as the correct facts about the ownership of the truck were not disclosed; that the fact that the vehicle had met with accidents in the past three years and that the driver had been convicted for rash and negligent driving were concealed and that the insurance policy had lapsed on account of the transfer made by the real owner to Gopal Das which fact was discovered by the insurer after enquiries.

4. The learned District Judge who constituted the Tribunal found from the evidence on record that the accident occurred on account of the rashness and negligence of Ram Dayal; that Rant Prakash Thukral was the real owner and the registration in the name of Gopal Das was Benami, Gopal Das being merely a domestic servant of Thukral, and that the insurance policy was valid and binding having been affected by Gopal Das, the registered owner. The Tribunal further recorded a finding that the injury received, resulting in the disability of 2nd Lt. Sobti, deserved to be compensated by a sum of rupees two lacs. While awarding the compensation the Tribunal as required by Sec. 110-B of the Motors Vehicles Act specified the liability of the insurer as Rs. 20,000/-, the amount insured under the policy.

5. From the above said award of the Tribunal Ram Prakash Thukral and Gopal Das filed separate appeals but in those two appeals the parties entered into a compromise and settled the matter for a lesser amount. The said two appeals stood decided in terms of the compromise. In this appeal by the insurer its learned counsel Sri D. Sanyal advanced substantially one ground in support of the appeal. It was contended by the learned counsel that Gopal Das having not been found to be the owner of the motor truck, DLG 3859, the insurance policy affected by him covering the third party risk was void ab-initio, the insured having no insureable interest and the contract so entered with the insurer would be merely in nature a wagering contract, not enforceable in law. The submission of the learned Counsel was that only an owner of a motor vehicle, or any person who uses it, or any other person who uses it having been allowed by the owner to use it, can have an insure-able interest to affect the insurance policy on the motor vehicle so used covering the risk of injury to third persons caused in an accident by use of the vehicle insured. It was also submitted that the insurance contract was vitiated and the policy was rendered void having been obtained by the non-disclosure of material fact and by representation of facts false in material particulars.

6. Sri S.S Bhatnagar, learned counsel appearing for the main respondent 2nd Lt. Sobti in answer submitted that the insurance policy was not vitiated by false representation or non-disclosure of material fact and it was always open to Gopal Das, the registered owner to affect the policy, though he may not be the real owner of the truck involved in the accident. On the terms of the policy and on the substance of the contract it represented, Sri Bhatnagar submitted that the contract will not be a wagering contract as known to law. The further submission was that as a registered owner and as a Benamidar Gopal Das had sufficient in-sureable interest and the insurance policy affected by him did not become void on the ground that the insured had no in-sureable interest. It was also suggested that Gopal Das as a Benamidar of the real beneficiery rightly represented that he was the owner dealing with the truck and the insurer could not legally escape its liability under the insurance policy affected by Gopal Das as owner.

7. Having given my due consideration to the arguments advanced by the learned counsel at the Bar I have come to the conclusion that this appeal has no force.

8. On the findings recorded by the Tribunal which have not been challenged in appeal, on the day of the accident the truck was being driven by Ram Dayal for transporting the goods of Ram Prakash Thukral. Under the Motor Vehicles Act the registered owner of the truck was Gopal Das. The appellant was the insurer under the policy affected by Gopal Das. The injury to 2nd Lt. Sobti was received in the accident caused by the rash and negligent driving of the truck by Ram Dayal. The facts establish that Ram Prakash Thukral was using the truck, Ram Dayal was driving it and Gopal Das, the registered owner, was a consenting party to its use by Thukral and it being driven by Ram Dayal. The fact that Thukral was the real owner of the truck and Gopal Das was not the real owner, in so far as the liability under the law of Tort is concerned, will not be material. Both would be liable for the injury caused and so will Ram Dayal driver who was driving the truck. Since Ram Prakash Thukral had taken the stand that he was not the owner of the truck and had nothing to do with its use by Gopal Das, the claimant had adduced evidence to establish that Thukral remained the real owner, the name of his servant Gopal Das as registered owner was mere Benami. As the owner of the truck and being used at the time of accident for his business. Thukral, would be liable Since Gopal Das gave himself out to be the owner having got the truck registered in his name, he will equally be liable. The legal liability of Gopal Das to pay compensation would remain unaffected by the fact that the real owner of the truck was Thukral. In fact the Tribunal held Gopal Das to be liable and the compensation recoverable from him by 2nd Lt. Sobti who was injured in the accident involving the truck DLG 3859. Now this was the truck in regard to which the policy was affected by Gopal Das for being indemnified by the insurer. The first clause in the terms of the policy is as follows:—

“Subject to the limit of liability the company will indemnify the insured in the event of the accident caused by or arising out of the use of the motor vehicle in a public place against all sums including claimant's costs and expenses which the insurer shall become legally liable to pay in respect of death of or bodily injury to any person.”

9. I have held above that Gopal Das was legally liable to pay compensation in respect of bodily injury to 2nd Lt. Sobti caused by or arising out of the use of the truck in a public place. The insurer, therefore, is bound to indemnify Gopal Das, the insured, to the extent of Rs. 20,000/- covered by the said policy. Under Sec. 94 of the Motor Vehicles Act the use of a motor vehicle is prohibited in a public place unless in respect of it there is in force a policy of insurance covering risk to third parties caused by or arising out of the use of such vehicle. No person shall use or allow any other person to use a motor vehicle in relation to the use of, which in a public place there is no such insurance policy. Then Sec. 125 of the said Act penalises the driver of an uninsured vehicle and whoever drives it or causes or allows a motor vehicle to be driven, which vehicle is not insured shall be punished with imprisonment which may extend to three months or with fine. It is obvious, therefore, on reading the provisions of Secs. 94 and 125 of the said Act together that a person who drives any motor vehicle or causes or allows a motor vehicle to be driven in a public place is under a duty to find out whether such a vehicle is insured and if he finds it is not, he must get it insured before driving it or allowing it to be driven in a public place. There is nothing in Sec. 94 that it is only the owner of a motor vehicle, in the sense who has proprietary rights in the material of the vehicle, who can effect the insurance. Any person who uses it or allows any other person to use it can also get the insurance affected. The use by a person of a motor vehicle in a public place or driving of a vehicle in a public place or allowing the use of a vehicle in a public place or allowing it to be driven in a public place is sufficient for the purpose of affecting insurance and I think that would also be an insureable interest for the purpose of affecting a requirements of Chapter VIII of the Motor Vehicles Act. There is nothing on the record to show that Gopal Das as the registered owner of the truck concerned had no control over the operation of the truck even though he might be a servant of Gopal Das. I find myself in agreement with the view of the Tribunal that as registered owner Gopal Das would have sufficient interest to affect the insurance. In Orissa Co-operative Ins. Society Ltd. v. Bhagaban Sahu . 1971 A.C.J 49. it has been held that the ostensible owner whose name is entered as such in the Registration Book is to be considered as the owner of die Motor Vehicle irrespective of the fact that the ownership may be with somebody else. The form if registration certificate as given in the schedule to the Motor Vehicles Act contains the heading registered or owner and not owner or real owner.

10. I even doubt that the plea in defence to the effect that Gopal Das was not the owner of the vehicle and he had no insureable interest was even open or permitted to the insurer. The defence will remain confined only to such pleas as are permitted under Sub-sec. (2) of Sec. 96 of the Motor Vehicles Act the in-surer having issued a certificate of insurance to Gopal Das. It was contended by Sri Sanyal on the strength of a decision of the Madras High Court, in The India Insurance Company, Bombay v. Lakshmi . 1971 Vol. II M.L.J 354. that the defences set out under Sec. 96 of the said Act cannot be said to be exhaustive having regard to the general law of contract of insurance. With great respect to the learned Judge who decided the said case I am unable to agree with the decision. The Supreme Court in British India General Insurance Co. Ltd. v. Captain Itbar Singh . ???. has declared that the defences open to the insurer as set out in Sub-sec. (2) of Sec. 96 are exhaustive.

11. Faced with this declaration of law by the Supreme Court Sri Sanyal tried to submit that clause (e) of Sub-sec. (2) of Sec. 96 permitted the insurer to question the validity of the insurance policy on the ground that, it was obtained by non-disclosure of material facts or by a representation of fact which was false. He submitted that the policy was rendered void as the fact that Ram Prakash Thukral was the real owner was concealed and not disclosed. There is complete absence of evidence on record as to what representation was made when the policy was affected. The insurer did not care to produce before the court the proposal signed by Gopal Das. That would have been the best evidence. Sri Sanyal made a prayer before the court that the insurer be allowed now an opportunity to produce die proposal form. I do not think the grant of any such indulgence at this stage would be in accordance with law. Rule 27 of order 41 of the C.P Code limits the right of a party to adduce fresh evidence in appeal. Nothing is shown why the insurer was not able to produce in evidence the proposal form before the Tribunal at an earlier stage. We are thus left with the fact that the Tribunal found Ram Prakash Thukral to be the real owner and the argument of non-disclosure is founded thereon. I have held above that under Sec. 94 it is not only the real owner of the vehicle who can affect insurance for complying with the provisions of Chapter VIII of the Motor Vehicles Act. Any other person using a motor vehicle or allowing it to be used at a public place can also affect insurance. The disclosure, therefore, of the real owner to the insurer would not be a material fact for affecting the policy. Sub-sec. (5) of Sec. 96 lays down that the expressions “material fact” and “material particular” meant, respectively, a fact or particular of such a nature as a influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, Sri Sanyal failed to satisfy me as to how the insurer would have been influenced in its judgment as to the premium and conditions were it disclosed that Ram Prakash Thukral was the real owner when in fact it was known all-through: that the truck was being used for the purposes of business of Ram Prakash Thukral. There is thus no tenability in these submissions that insurance policy was void not having been affected by the real owner Ram Prakash Thukral, or that it was void for not disclosing the real owner.

12. Reverting back to the argument that Gopal Das not being the real owner the insurance affected by him will be nothing but a wagering transaction, I find that Sri Sanyal's argument proceeds on a fallacious consideration. I have already quoted above the first clause of the term of the conditions of insurance. The liability of the insurer to indemnify Gopal Das would arise when Gopal Das is found liable to pay compensation for injury to any person caused by the use of the moor truck. I do not find any thing in the nature of a wager in such a contract. The payment by the insurer to Gopal Das, the insured, is not merely based on a stage. When due to an accident or on account of an accident Gopal Das suffers and has to pay some money then and only then the insurer is bound by the contract to indemnify. It is not a contract like two persons betting amongst each other that if it does not rain in the afternoon then one will pay the other Rs. 10/- and if it rains, then the payment would be vice versa. Their interest is in the mere stake. I, therefore, do not find any tenability in the argument of Sri Sanyal and I do not think the ratio of the decision in the case of Alamai v. Positive Government Security Life Assurance Company Ltd. . I.L.R 23 Bom. 191. helps him.

13. For all the reasons given above, I do not find any force in this appeal and dismiss it with costs.

Appeal dismissed.