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2002 DIGILAW 152 (JK)

National Insurance Co. Ltd. v. Parveez Ahmed

2002-05-16

S.K.GUPTA, T.S.DOABIA

body2002
1. This Court proposes to dispose of these four appeals (LAPC No. 39/1995, LPAC No. 36/1995. LPAC No. 37/1995 and LPAC No. 38/1995) by a common judgment as these pertained to the same accident and also arisen out of common judgment dated April 28, 1995 passed by learned Single Judge. 2. Bus No. JKQ-4077 driven rashly and negligently by Suraj Parkash, respondent, met with an accident on 13-5-1987, as a result of which, it fell into a deep gorge near Tain bridge near Rajal, Tehsil Nowshera, District Rajouri. The accident look place due to reckless and negligent driving of the offending vehicle by its driver Suraj Parkash. Many passengers died and others who were fortunate enough to have escaped with injuries, as a result of this accident. Various claim petitions for compensation came to be filed by the legal heirs of the deceased, besides the injured, for compensation under the Motor Vehicles Act, some at Rajouri and others before Motor Accident Claims Tribunal at Jammu. The vehicle was insured by National Insurance Company, Shalamar Road, Jammu and owned by Satish Kumar Handa, as per Registration Certificate and driven by Suraj Parkash, its driver at the time of the accident. 3. On the filling of the demurrer by the respondents, particularly National Insurance Company Limited, repudiated its liability to indemnify its insured on the ground that as per Policy, Satish Kumar Handa was shown to be registered owner and the Policy was issued in his name. The vehicle having been sold to Jugal Kishore without informing and consent of the Insurance Company effected the transfer and, thus, contravene the conditions of the Policy. The defence set up by the Insurance Company is that, Jugal Kishore for whom the vehicle was driven by Suraj Parkash, its driver, had no in-surable interest and, as such, the Company is absolved from its liability to indemnify the insured. That Jugal Kishore, respondent, being the real owner of the vehicle, was under a liability to pay compensation. On the contents contour of the pleadings, the following issues came to be framed by the Tribunal on 17-12-1987: 1. Whether on 13.5.87 the respondent Suraj Parkash while driving Bus No.: 4077/ JKQ rashly and negligently near bridge Nowshera under the employment of respondent Jugal Kishore, caused the accident which resulted to the death of deceased Mushtaq Ahmed? OPP 2. On the contents contour of the pleadings, the following issues came to be framed by the Tribunal on 17-12-1987: 1. Whether on 13.5.87 the respondent Suraj Parkash while driving Bus No.: 4077/ JKQ rashly and negligently near bridge Nowshera under the employment of respondent Jugal Kishore, caused the accident which resulted to the death of deceased Mushtaq Ahmed? OPP 2. In case issue No. 1 is proved in the affirmative whether the petitioners are entitled to compensation. If so, how much from and in what proportion? OPP 3. Whether there are contravention of condition in Insurance policy and there was no privity of contract between respondent Jugal Kishore, the owner of the vehicle and the Resp. National Insurance, Co., If so, what is the effect of it on the claim petition? Relief." 4. Parties in support to their respective cases, have assembled, each for itself testimony of various witnesses, a graphic summary of all the witnesses is given by the Tribunal in its judgment. After an analytical evaluation of the primary and perceptive evidence deposed by the witnesses examined at the trial of the parties and testimonial boost by these provided either way, the Tribunal held Jugal Kishore to be the real owner of bus No. 4077-JKQ and not Satish Kumar Handa and further the Insurance Company has a Limited liability, which it has exhausted by paying interim relief to the claimants. The Tribunal further absolved Satish Kumar Handa of his liability and, in consequence, also the National Insurance Company for there being no privity of contract between the Insurance Company and Jugal Kishore at the relevant time when the accident occurred, in its finding on Issues No. 2 and 3 in the judgment. Aggrieved by the order passed by the Tribunal and held Jugal Kishore respondent, to be liable for paying the entire compensation, claimants in their claim petitions impugned its correctness before the learned Single Judge in appeals, CIMA No. 31/1992, CIMA No. 32/ 1992, CIMA No. 33/1992 and CIMA No. 34/1992 respectively. 5. Aggrieved by the order passed by the Tribunal and held Jugal Kishore respondent, to be liable for paying the entire compensation, claimants in their claim petitions impugned its correctness before the learned Single Judge in appeals, CIMA No. 31/1992, CIMA No. 32/ 1992, CIMA No. 33/1992 and CIMA No. 34/1992 respectively. 5. The learned Single Judge addressed itself with regard to the ownership of the vehicle, if stood transferred by Satish Kumar Handa in favour of Jugal Kishore and that in terms of decree passed by the High Court in COS No. 195/87 on 25/11/1987, Jugal Kishore held to be the owner of the vehicle in question and secondly, whether the Insurance Company was absolved from liability, besides question with regard to the Limited Liability of the Insurance Company to indemnify the insured after analysing the evidence let in by the parties and elaborately dealing with the aforesaid question, reversed the finding of the Tribunal on Issue Nos.2 and 3 and held as under: 1. Respondent Satish Kumar Handa is held owner of the vehicle in all respects as on the date of the accident. 2. Respondent Jugal Kishore is not held to be the owner of the vehicle as on the date of accident. 3. Respondent Satish Kumar Handa being the owner of the vehicle as on the date of the accident was liable to pay the compensation. 4. There being a legitimate, lawful and valid policy of insurance in existence between respondent-National Insurance Company and respondent Satish Kumar Handa as on the date of the accident and the liability of the respondent National Insurance Co. arising out of such Insurance policy being unlimited, the insurance company is bound, liable and responsible to indemnify the insured for the award received and obtained against him." 6. It is this finding of the learned Single Judge, which came to be challenged before us in these Letters Patent Appeals. It is not disputed that the offending vehicle stood in the ownership of Satish Kumar Handa. This vehicle is claimed to have been transferred by Satish Kumar Handa in favour of Jugal Kishore on the basis of the decree passed in COS No. 195/87 by the High Court. It is significant to point out that this decree never came to passed on merit, but merely at the instance of the parties to have compromised with regard to the dispute delineated in the suit. It is significant to point out that this decree never came to passed on merit, but merely at the instance of the parties to have compromised with regard to the dispute delineated in the suit. This manifestly appears to be collusive suit having been filed after the accident. This suit cannot, therefore, be said to have been filed with bonafide intention, particularly in looking to the date and time of its filling, i.e. after the accident took place, resulting in death of some ones and injuries to others, traveling in the vehicle on the ill-starred day. It is also borne out from the record that vehicle stood completely damaged in the accident and the claim was launched by Satish Kumar Handa. It is also not disputed that the cheque in respect of the damage caused to the vehicle was received by Satish Kumar Handa from Insurance Company. Had the vehicle, in fact, been transferred by Satish Kumar Handa much prior to the occurence of the accident to Jugal Kishore, as pleaded, then it becomes enigmatic as to how Satish Kumar Handa would have claimed the damage of the vehicle and received the compensation from the Insurance Company. This clearly shown that Satish Kumar Handa has lied beyond redeption inasmuch as he received a claim for damage to the vehicle on the one hand, but, on the other hand, made a statement to have sold the vehicle before the accident, and, therefore, had no concern with the vehicle at the time of accident. 7. The apart, Satish Kumar Handa throughout figured as owner of the vehicle in Registration Certificate and also in the Insurance Policy including the record of the Insurance Company. All these facts and circumstances when taken in its cumulative lead to an inevitable conclusion that it was Satish Kumar handa, who happened in be the owner of the offending vehicle at the time of the accident and insured with the insurance Company. The compromise decree, by which the Tribunal seems to have been influenced in holding otherwise, has no applicability in view of the records of Registration Certificate and of the Insurance Company. Once it is held that Satish Kumar Handa was the real legitimate owner of the offending vehicle at the time of accident, the question or absolving of Insurance Company with whom the vehicle stood insured at the time of accident, does not crop up. Once it is held that Satish Kumar Handa was the real legitimate owner of the offending vehicle at the time of accident, the question or absolving of Insurance Company with whom the vehicle stood insured at the time of accident, does not crop up. Undoubtedly, in case of accident and subsequent transfer of ownership, Policy lapses on the transfer of vehicle and Insurance Company no longer remains liable. But this is not the , position deducible from evidence on record in this case. Satish Kumar Handa continues to the owner of the vehicle both in Registration Certificate. Insurance Policy and the record of the Insurance Company, and the Insurance Company is liable to indemnify the insured in respect of the award made against it by the Tribunal. 8. Another limb of argument put across by Mr. C.S. Gupta related to the limited liability of the Insurance Company in respect of passengers travelling in the bus at the time of accident, some of whom died and others escaped with injuries. A cursive glance of the Insurance Policy annexed with the record unambiguously shows that it does not bear an endorsement in respect of limited liability of the Insurance Company. It is found that a space provided for limitation of liability in the Insurance Policy has been left unfilled and blank. The oral evidence provided by the Insurance Company is, therefore, of no avail in view of the documentary evidence vis-a-vis Insurance Policy, which did not carry out its lunch of liability in the policy. Mr. C.S. Gupta, learned counsel appearing for the appellant, vehemently urged that the liability of the insurer was limited as per statute, but no limits of liability shown as per the terms of the policy. It was held in D. Balakrishana v. Prabha Hingorani and others, 1988 (2) ACJ 883, that the Insurance Company was liable for the entire amount. The question is whether the Insurance Company has undertaken unlimited liability or it should limit it to Rs. 15,000/per passenger, as vouched by Mr. C.S. Gupta, learned appellants counsel. What is discernible from the Policy is material for consideration and in this case, the pleaded limited liability of the Insurance Company has not been carried out in the Policy. The question is whether the Insurance Company has undertaken unlimited liability or it should limit it to Rs. 15,000/per passenger, as vouched by Mr. C.S. Gupta, learned appellants counsel. What is discernible from the Policy is material for consideration and in this case, the pleaded limited liability of the Insurance Company has not been carried out in the Policy. It takes us to inescapable conclusion that the liability of the Insurance Company was unlimited at the time of its accident, as no such limit is desired in the Insurance Policy. Factually and legally, the finding returned by the learned Single Judge on both the questions, in our view, does not find fault necessitating any interference in appeal. 9. In this view of the matters, we are clearly of the opinion that the award determined, by the Tribunal shall become payable in entirety by the Insurance Company for its liability being unlimited at the time of the accident. 10. In the result, for the foregoing reasons, we do not find any merit in these appeals and are accordingly dismissed.