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Himachal Pradesh High Court · body

1998 DIGILAW 199 (HP)

NEELAM v. KAMAL PAL

1998-10-29

D.RAJU, LOKESHWAR SINGH PANTA

body1998
JUDGMENT Lokeshwar Singh Panta, J.: The above said appeal and Civil Miscellaneous Petitions (M) arising out of a single accident and decided by two awards dated 3.1.1991 by the Learned Motor Accident Claims, Tribunal, Una passed in MA.C. Petition Nos. 18 of 1988 and 19 of 1988jjre being disposed of by this single judgment as common question of fact and law are involved therein. 2. Ms. Neelam and Ms. Reeta Sharma school going students of about 15 years and 17 years age received injuries in an accident on 15.12.1987 which took place at about 4 P.M. at Una. Ms. Neelam was on her way from the school to her village in the company of her friend Ms. Reeta Sharma on a cycle and Gudesh Kumari was also accompanying them on her separate cycle: When all the three girls reached near District Hospital at Una, Ms. Neelam and Reeta Sharma started walking on foot along with the cycle as there was a steep ascend near the hospital and they could not ride on their by-cycle. By the side of the road a bus going towards Hamirpur side was halting as the passengers were boarding and getting down from it. When the girls were passing through the right side of the bus, in the meanwhile a truck bearing registration No. HPK-6023 being driven by Kamal Pal owner and driver respondent No. 1 herein rashly and negligently came from Una side hitting the cycle of Ms. Reeta Sharma and Ms. Neelam as a result of which both the girls fell down and sustained several injuries. Both .the injured girls were removed to District Hospital, Una for treatment. Ms. Neelam was shifted to the P.G.I., Chandigarh where she remained admitted till 25.12.1987 as indoor patient. Ms. Reeta Sharma remained under treatment as indoor patient till 18.12.19S7 in District Hospital, Una. The report of the accident was made to the Police on the basis of which a case under Sections 279 and 337 I.P.C. was registered against respondent No.l. 3. Two separate claim petitions were filed by claimants Ms. Neelam and Ms. Reeta Sharma through their natural gurdians and next friends before the learned Tribunal under Section 110-A of the Motor Vehicles Act, 1939, seeking compensation to the tune of Rs. 1,50,000/- and Rs. 25,000/- respectively for the injuries sustained by them in the accident. Two separate claim petitions were filed by claimants Ms. Neelam and Ms. Reeta Sharma through their natural gurdians and next friends before the learned Tribunal under Section 110-A of the Motor Vehicles Act, 1939, seeking compensation to the tune of Rs. 1,50,000/- and Rs. 25,000/- respectively for the injuries sustained by them in the accident. It was averred that the accident had taken place due to rash and negligent driving of the offending vehicle by respondent No.l. 4. All the respondents resisted and contested the claim petitions Respondent No. I in his written statement averred that accident took place due to rash and negligent paddling of cycle by the claimants and it has been denied that the accident was the result of fresh and negligent driving on the part of respondent No.l. 5. Chanan Singh respondent No.2 herein in his written statement stated that he had sold the accidental vehicle to respondent No. 1 on 31.10.1987 and, therefore, he ceased to have any concern with the vehicle. However, he showed his ignorance regarding the alleged accident. 6. The Oriental Insurance Company Limited respondent No. 3 in the appeal, in its written statement by way of preliminary objections alleged that the insured has violated the terms and conditions of the Policy not informing the Company immediately after the accident and as such the liability to pay compensation by it could not be fastened. It was also stated that respondent No.l was not having valid driving licence to drive the vehicle at the time or alleged accident and he was not insured in respect of truck No.HPK-6023. It pleaded that insured was Lai Chand respondent No.4 herein but he had no insurable interest in the vehicle on the date of the alleged accident as the policy elapsed on ceasing such interest and mat the policy was not transferred in the name of respondent No.2 nor such request for transfer was sent to the Insurance Company. The claim petition was stated to be bad for non-joinder of necessary party and that the petition was vague, incomplete and did not disc one any cause of action besides being barred by limitation. On merits, the accident having taken placed has been denied and in the alternative it has been pleaded that even if it took place it was doe to the negligence of the claim ants themselves. 7. On merits, the accident having taken placed has been denied and in the alternative it has been pleaded that even if it took place it was doe to the negligence of the claim ants themselves. 7. Lai Chand respondent No.4 in his written statement stated that he was not the owner of die vehicle in question at the time of the accident as he had transferred its ownership on 14.12.1987 in favour of respondent No.2 through an affidavit and the possession of die vehicle was already delivered to him on the basis of an agreement dated 3.9.1987 executed between the parties. He alleged that the accident was due to negligent paddling of cycle by the claimants when the other vehicles were also coming and going on the road from the opposite direction. 8. The learned Tribunal on the controversial pleadings of the parties framed as many as 11 issues and after analysing the evidence led by the parties and hearing the learned counsel came to die conclusion that die accident had taken place due to rash and negligent driving of die offending vehicle by respondent No.l in which both the claimants received injuries. Ms. Neelam was held entitled to total compensation of Rs. 5,000/- whereas Ms. Reeta Sharma was awarded Rs. 12000/- The amounts of compensation were awarded against respondents No.l, 2 and 4 to be paid by respondent No.3 - Insurance Company. Besides me award of compensation amount, interest at die rate of 12% per annum was also awarded. 9. Feeling aggrieved by die award of die learned Tribunal Claimant Ms. Neelam has come up before this court by way of Civil Appeal (FAO (MVA No.47/91) assailing die finding of quantum of compensation awarded. It has been pleaded that die amount of compensation awarded is on die lower side and the same is neither adequate nor just and deserves to be enhanced to die tune of Rs. 1,50,000/- as claimed in die petition. It has been pleaded that die amount of compensation awarded is on die lower side and the same is neither adequate nor just and deserves to be enhanced to die tune of Rs. 1,50,000/- as claimed in die petition. Oriental Insurance Company has also assailed both the awards by way of petitions under Article 227 of die Constitution of India mainly and only on die ground that die learned Tribunal has gravely erred in passing die award against die Insurance Company after having held mat at die time of accident, die vehicle No.HPX -6023 stood transferred by respondent No.4 Lai Chand and respondents No.2 and 3 had no insurable interest in vehicle at me time of die accident being not die insured of die Company. It has also been alleged that the Insurance Company as per die settled principles of law is only bound to satisfy an award which is passed against me insured and not against a person with whom mere is no privity of contract and mat in the present case respondent Lai Chand was me insured who had transferred die vehicle in favour of respondent Chanan Singh who had further sold the same to respondent Kamal Pal and, thus, die Tribunal has wrongly held the Insurance Company-petitioner liable to pay me amount of compensation. 10. Before we examine die submissions of die Insurance Company, we propose to deal with the question on enhancement of die compensation claimed by the claimant-appellant in her appeal. Immediately after die accident die appellant -was removed to District Hospital, Una where she was medically examined by Dr. H.R. Sharma (PW-1), Medical Officer, Dr. Sharma noticed three following injuries on her person: (1) Pain and tenderness in hip joint and lumber region, X-Ray was advised for hip joint and lumber (2) Multiple abrasions left side thigh lateral side Intermingles each other. (3) Bleeding per vaginal present on examination and questioning there was menstrual bleeding present and patient was having pad also. 11. After seeing the X-ray report the fracture of the superior and inferior public rammi both sides were seen. Injury No. 1 was opined to be grievous and injury No.2 simple in nature. Appellant Ms. Neelam appeared as PW-3 and deposed that she had undergone three operations in the P.G.I, and remained admitted there for-two months. Dr. D.K. Dhaliwal, Asstt. Professor, Department of Obst. & Gyno. appeared as PW-7. Injury No. 1 was opined to be grievous and injury No.2 simple in nature. Appellant Ms. Neelam appeared as PW-3 and deposed that she had undergone three operations in the P.G.I, and remained admitted there for-two months. Dr. D.K. Dhaliwal, Asstt. Professor, Department of Obst. & Gyno. appeared as PW-7. According to her deposition the appellant was admitted in the P.G.I, in the department of gynaecology on 16.12.1987 with the history of road side accident and she was having severe genito-urinary injuries and fracture pelvis and she was in state of shock and she also received five units of blood transfusion. Dr. (Mrs.) Dhaliwal repaired her injuries by administering anaethesia and lateron she has discharged from the P.G.I, on 25.12.1987. The discharge summary (Ext. PW-7/A) was stated to have been prepared by some junior doctor.. In her cross-examination she stated that vaginal injuries repaired by her healed well and thereafter the appellant was discharged but she was having orthopaedic and urology injruies for which the appellant was called for follow-up. Shri Gurnam Singh father of the appellant appeared as PW-6 and deposed regarding sustenance of the injuries by the appellant m the accident. He stated that the appellant remained admitted in P.G.I, for 1- 1/2 months- and also deposed that for 1-1/2 year die appellant could not walk and attend to her daily persuits. Ms. Reeta and Ms. Sudesh appeared as PW-4 and PW-S respectively and also deposed that the appellant sustained injuries in the course of accident. However, they could not give the detail of injuries so sustained by her. - 12. From the oral testimony of the appellant and the doctors it cannot be clearly said that die appellant has suffered any type of disability on account of sustenance of injuries by her in the course of the accident. The discharge summary (Ext.PW-7/A) was got exhibited in the course of the statement of Dr. D.K. Dhaliwal stated that she did not know who prepared it The appellant has not examined the doctor who prepared and issued the discharge summary certificate nor any other person from the orthopaedic and urology department of P.G.I, has been examined to establish that die appellant had suffered from orthopaedic and urology injuries and remained under treatment in the P.G.I, in that connection. The injuries suffered by die appellant have not been proved to be so serious causing any permanent disability to her or due to those injuries die appellant could not lead proper and normal life. The father of me appellant has made a bald and general statement about spending of Rs. 50,000/- on account of medical expenditure and Rs!350/- to Rs.600/- per trip of engaging taxi for taking die appellant to P.G.I. Chandigarh without any corroboration of his testimony. He also deposed that he was paying Rs. 400/- per month to a woman attendant besides food and clothing who remained in service of die appellant for one year. Who was die maid servant engaged by him as attendant of die appellant during die period she remained in hospital or in bed after sustaining injuries has not been named nor examined to substantiate his testimony. According to die testimony of Dr. Mrs. D.K. Dhaliwal, me appellant remained admitted in die P.G.I, for 8-9 days and she was discharged on 25.12 1987 her vaginal injuries healeo. well and the doctor did not state that at the time of discharge of the appellant from the P.G.I, she was unable to attend her ordinary persuits and needed the assistance of a female servant. It has not been established on the record that the appellant was taken to P.G.I, for follow-up after she was discharged for treatment of orthopaedic and urology injury and in the absence of definite and specific evidence on this account, the learned Tribunal has rightly awarded a sum of Rs. 500/- as transportation charges for hiring a taxi from Una to P.G.L, Chandigarh for carrying the appellant on 16.12.1987. The Tribunal has also awarded Rs. 500/- on account of hiring a maid servant for about one month from the date of accident and Rs. 500/- on account of pain and sufferings besides Rs. 3500/- on account of medical expenditure. Thus, the total amount of compensation of Rs. 5000/- was awarded in favour of the appellant and against respondents No.l, 2 and 4 10 be paid by respondent Insurance Company and interest at the rate of 12% per annum from the date of filing of the claim petition till the date of payment or realisation was also awarded in favour of the appellant. 5000/- was awarded in favour of the appellant and against respondents No.l, 2 and 4 10 be paid by respondent Insurance Company and interest at the rate of 12% per annum from the date of filing of the claim petition till the date of payment or realisation was also awarded in favour of the appellant. In the facts and circumstances of the case, we are of the considered view that the learned Tribunal has awarded just and reasonable compensation to the appellant after taking into consideration the entire evidence on record and we see no reason to interfere with the finding of the Tribunal. The evidence discussed in the earlier part of this judgment is insufficient and un-convincing to prove that the appellant is entitled for enhancement of the compensation and in the absence of cogent evidence produced on record by the appellant, it cannot be field that the amount of compensation awarded by the learned Tribunal is inacequate and un-just and, therefore, we up-hold the award and reject the submissions of the appellant. CMP C (M) Nos 187/91 and 1 89/91. 13. The issue relating to the maintainability of revision petitions under Article 227 of the Constitution of India against the award of the Motor Accident I Claims Tribunal, in a case where no appeal can lie under Section 173(2) of the / Motor Vehicles Act, 1988 because the compensation awarded was less than Rs. 10,000/- was raised by the learned counsel for the respondents. The learned counsel placed reliance upon decisions of the learned Single Judge of this Court in Mittar Singh v. Ashish Kumar & Ors. (1998 (2) S.L.J. 1435) and National Insurance Co. Ltd v. Vipul & Ors., (1998(2) Shim.LC. 248). We have carefully gone through those judgments wherein the learned Single Judge dismissed the revisions on the view that such revisions should not be entertained. If the learned Single Judges who decided the above cases are meant to state as a proposition of law that the High Court has no power to entertain -such revisions arid, therefore, they should not be entertained, we express our dissent and not only we cannot approve of the same but we hold to that extent that the judgments of the learned Single Judges do not lay down the correct position of law. It is by now well settled that the High Courts power of revision under Article 227 of the Constitution of India shall not be used as an appellate or regular revisional power envisaged under Section 115 C.P.C. or as specifically provided under any special or specific enactment and that it shall be exercised sparingly whenever any grave dereliction of duty or flagrant violation of law resulting in grave injustice. It has also been held often that the High Court will be justified to interfere in a matter under Article 227, when the order of the Court or the Tribunal below is shown to suffer on account of absence cr excess of jurisdiction, infringement of fundamental rights or violation of natural justice, ft is one thing to state that m a given case or given set of circumstances the High Coon should not have interfered or withheld its hands from interfering and yet another to proclaim that the High Court has no powers at all or that it be denied and denuded of its powers under Article 227 of the Constitution be it even when the occasion or case before it warrants such exercise of power. The maintainability of the revisions under Article 227 of the Constitution of India and exercise of the powers by this Court are distinct and different issues which cannot be equated together. Thus, it cannot be held that when there is a bar of appeal or revision under statute the jurisdiction off the High Court is ousted under Article 227 of the Constitution to the party aggrieved by the decision of the Subordinate Court or Tribunal. This Court is invested with judicial superintendence and with special jurisdiction to seek that the Courts and Tribunals which are functioning within the jurisdiction of the Court, act within their authority and in the manner required by law. Therefore, we hold that these revisions under Article 227 of the Constitution of India are I maintainable on behalf of the Insurance Company. 14. Now the question involved for our consideration is whether in the present set of cases we should interfere in the decision of the learned Tribunal awarding compensation of Rs. 5,000/- in favour of Ms. Neelam and Rs. 1200/-to Ms. Reeta Sharma. 15. 14. Now the question involved for our consideration is whether in the present set of cases we should interfere in the decision of the learned Tribunal awarding compensation of Rs. 5,000/- in favour of Ms. Neelam and Rs. 1200/-to Ms. Reeta Sharma. 15. Shri G.C. Gupta, learned counsel for die petitioner-Company forcefully contended that the Insurance Company is not liable to pay the compensation since the vehicle had been sold by Lai Chand respondent No.4 to Shri Chanan Singh respondent No. 2 before the date of accident and subsequently Chanan Singh further sold the said vehicle to respondent Kamal Pal without seniding intimation of Sale to the petitioner-Company and that after the sale of the vehicle, there is no subsistence contract between Insurance Company and Lai Chand transferee, therefore, the petitioner-Company is not liable to indemnify the transferee and the claimants are not entitled to recover compensation from petitioner-Company. He placed reliance upon a judgment of learned Single Judge in Kanta Devi & Anr. v. Dayal Singh &Ors. (1991 ACJ 336) and two Division Bench judgments of this Court in United India Insurance Company Ltd. v. Smt. Bimla & Ors. (MR. 1995 Himachal Pradesh 1) and Oriental Insurance Company v. Maheshwar & Ors. (1998 (1) Shim. L.C. 108). In all these judgments the learned judges held that a contract of insurance is between the insurer and the insured, the subject matter is the vehicle specified in it and it is the risk arising out of its use that the insurer undertakes to compensate against. Where such a contract provides for indemnity to the assured against third party risk, the third party who is a stranger to the contract, cannot enforce it against the insurer. The policy of insurance is with respect to the insured person and not the vehicle and the liability of insurer ceases on transfer of ownership of vehicle. Further it was observed that the third party liability of an insurance Company ends on the transfer of vehicles by the insured and the liability of the Insurance Company has ceased in the facts and circumstances of such cases. 16. There is no denying the fact that the vehicles involved in the accident in the present case was sold by respondent No.4 to respondent No.2 and respondent No.2 in turn sold it to respondent No before the accident. 16. There is no denying the fact that the vehicles involved in the accident in the present case was sold by respondent No.4 to respondent No.2 and respondent No.2 in turn sold it to respondent No before the accident. Respondent No 2 while appearing as his own witness, has admitted that he had sold the vehicle in question to respondent No.2 on 14.12.1987 and the vehicle was insured with the petitioner-Company. He has further deposed that on 14 12.1987 he had transferred the registration certificate and other papers in favour of respondent No.2 although the possession was delivered to him prior to 14 12.1987. The respondent No 4 has placed on the file of the Tribunal his affidavit dated 14.12.1987 acknowledging the receipt of entire sale consideration from respondent No.2 and acknowledging him to be owner of the truck. The said affidavit was got proved from the Reader of Tehsildar, Una who attested it on 14.12.1987. Admittedly, in the present case, the accident had taken place before the Motor Vehicles Act, 19818 came into force. Under Section 103-Aof the Motor Vehicles Act, 1939 (old Act) corresponding to I Section 157 of 1988 Act (New Act), the insured was required to apply in the prescribed form to the insurer for transfer of the certificate and the policy described therein. Once such an application was made the insurer had to communicate its refusal within fifteen days of the receipt of the application for transfer failing which the certificate of insurance and the police described therein "shall be deemed to have been transferred" in favour of the transferee. This shows that the insurer had the right to refuse transfer of the certificate of insurance and the policy described therein provided the right was exercised within the stipulated time of fifteen days. However, Section 157 of the new Act makes the transfer of the certificate of insurance along with insurance policy described therein automatic along with the transfer of the motor vehicle together with the police of insurance to the purchaser. This is clearly an improvement over the previous provision on the subject. Now, under the old Act although the insurer could refuse to transfer the certificate of insurance in certain circumstances and the transfer was not automatic as under the new Act, there was under the old law protection to third party Le. victims of the accident. This is clearly an improvement over the previous provision on the subject. Now, under the old Act although the insurer could refuse to transfer the certificate of insurance in certain circumstances and the transfer was not automatic as under the new Act, there was under the old law protection to third party Le. victims of the accident. The protection was available by virtue of Sections 94 and 95 of the old Act. 17. In Madineni Kondaiah v. TasUn Fatimar (AIR 1986 A.P. 62) (Full Bench) it has been held that public liability of transferor to third party risk continues till he discharges statutory obligations under Ss. 29-A, 31 and 94 of die old Act, meaning thereby insurance policy does not lapse on transfer so far as third party risk is concerned. This decision also holds that the policy is to the vehicle, therefore, it should normally run with it Again it was said that till the transferor discharges his liability as to transfer under the old Act, his liability as to transfer under the old Act, his liability continues, so remains the insurable interest As to defence available to the Insurable interest. As to defence available to the Insurance Company, the opinion of the Court is that since Insurance Company can raise only those defence which are available to it under Section 96(2) of the Act, so it cannot raise the defence of lapse of insurance policy and its non-liability on that account. In that case the vehicle in question was transferred but not the insurance policy or the certificate to the vendee. The view of the Full Bench was approved by the apex Court in Complete Insulations (P) Ltd. v. New India Assurance Co.Ltd. (1996 (1) Supreme Court 221). In this judgment the Honble Judges of the Supreme Court while interpreting the provisions of the old and new Act relating to third party risk held that the transferee insured could not be said to be third party qua the vehicle in question. In this judgment the Honble Judges of the Supreme Court while interpreting the provisions of the old and new Act relating to third party risk held that the transferee insured could not be said to be third party qua the vehicle in question. It is only in respect of third party risks that Section 157 of the new Act provides that the certificate of insurance together with the policy of insurance described therein "shall be deemed to have been transferred in it our of the person to whom the motor vehicle is transpired", It was further held that m the absence of specific agreement to the contrary and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good die damage to die vehicle. This view was taken by the National Commission based upon the decision in Kondaih s case (supra) which has been held to be correct by die Honble Supreme Court . 18. The matter does not rest here and came on before the apex Court in The New India Assurance Company Ltd. v. Smt. Sheela Rani & Ors. (JT 1998 (6) S.C. 388). The Hon’ble Judges of die Supreme Court have again approved the ratio of the judgment in Kondaih s case (supra) and held that notwithstanding die non-transfer of die insurance policy, die liability qua third parry subsists in -new of Section 94 and 95 of die old Act A Division Bench of this Court in Tilak Singh v. Shashi Bijulwan & Ors. (1998 (2) S.L.J. 1575) held that the defence that policy had lapsed because of sale of die vehicle is not available to die insurance company under Section 149(2), of Motor Vehicles Act, 1988 and the J earned Judges have also relied upon earlier judgment of die Division Bench of die Court in National Insurance Co. Ltd. v. Lalita Prahhakar & Ors. (FAO No. 182 ofJ988 decided on 19.12.1996). 19. In View of die ratio laid down by die apex court in die above referred two judgments, die ratio laid down by Single Bench of this Court in Kanta Devi s case (supra) and two Division Benches in United India Insurance Co. Ltd. v. Smt. Bimla & Ors. and Oriental Insurance Co. v. Maheshwari & Ors. 19. In View of die ratio laid down by die apex court in die above referred two judgments, die ratio laid down by Single Bench of this Court in Kanta Devi s case (supra) and two Division Benches in United India Insurance Co. Ltd. v. Smt. Bimla & Ors. and Oriental Insurance Co. v. Maheshwari & Ors. (supra) are no more a good law and die defence that the police had lapsed because of sale of die vehicle is not available to me Insurance Company as held by die Apex Court. The contentions of die learned counsel for die petitioner-Insurance Company are not sustainable for the above-said reasons. The learned Tribunal has rightly passed the award in favour of die claimants and against respondents No. 1,2 and 4 and die liability of die amount of compensation to be paid by petitioner-Insurance Company has been legally fixed. We find mat die conclusion arrived at by the Tribunal is based upon proper application of law and it has not resulted in manifest injustice or patent error on die face of die record which warrants interference in these petitions. 20. No other point has been argued by die learned counsel for die parties. 21. In die result, for die aforesaid reason, FAO (MVA) No.47 of 1991 and Civil Miscellaneous Petition (M) Nos. 187/91 and 189/91 shall stand dismissed. However, the parties are left to bear their respective costs. Petition dismissed. -