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2003 DIGILAW 1285 (PNJ)

Sahib Singh v. Hari Singh

2003-09-12

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. The present appeal is by owner and driver of tractor No. PUC 4763, aggrieved against the award dated 14.3.1985 passed by the Motor Accidents claims Tribunal, Patiala (for short, the tribunal ). 2. The brief facts of the present appeal are that on 12.3.1982 Sukhvinder Singh, son of Hari Singh died in an accident between his motorcycle No. PUV 764 and the tractor driven by the present appellant no.1. The learned Tribunal has found that the accident had occurred due to negligent driving of the said appellant. Such finding is not in dispute in the present appeal. However, the learned Tribunal has held that Avtar Singh was original owner of the tractor who had died prior to the date of accident on 12.3.1982 and thus the insurance company cannot be made liable to make the payment of compensation. The tribunal has relied upon the judgment of this court in Oriental Fire and Genl. Ins. Co. Ltd. V/s. Harbans Kaurt (1983) 85 PLR 492. 3. Learned counsel for the appellants argued that there is no evidence regarding the date of death of Avtar Singh inasmuch as when the appellant, Sahib Singh appeared as his own witness, he was not cross-examined in respect of the date of death of Avtar Singh. It is contended that the judgment relied upon by learned Tribunal has since been reversed in appeal in a judgment reported as B. B. Bhagwat V/s. Oriental fire and Genl. Ins. Co. Ltd. , 1994 ACJ 301 (Pandh ). The learned counsel for the appellants has also relied upon G. Govindan V/s. New India Assurance Co. Ltd. , 1999 ACJ 781 (SC), wherein the Hon ble Supreme court of India has followed the Full Bench judgment of Andhra Pradesh High Court reported as Madineni Kondaiah V/s. Yaseen fatima, 1986 ACJ 1 (AP), wherein it has been held that mere passing of title in the vehicle to the transferee will not put an end to third party liability of the insurance company. The Hon ble Apex Court has approved the view of the Andhra Pradesh high Court that even if there is transfer of vehicle, the obligation under section 94 of motor Vehicles Act, 1939 does not cease. Normally, the policy is to the vehicle and has to be run with the vehicle. The Hon ble Apex Court has approved the view of the Andhra Pradesh high Court that even if there is transfer of vehicle, the obligation under section 94 of motor Vehicles Act, 1939 does not cease. Normally, the policy is to the vehicle and has to be run with the vehicle. The learned counsel for the appellants has also relied upon a judgment in Om Parkash V/s. Rajbiri, 1997 ACJ 547 (Pandh), to contend that once the insurance company has issued the policy, it is liable to indemnify the third party risk. 4. Learned counsel for the respondent insurance company on the other hand relied upon a Full Bench judgment of this court in Oriental Fire and Genl. Ins. Co. Ltd. V/s. Bachan Singh, 1982 ACJ 211 (Pandh), to contend that the insured Avtar singh has not been impleaded as party and, therefore, in the absence of insured, the insurance company cannot be liable to pay the compensation. 5. After hearing learned counsel for the parties and going through the record of the case, I feel that appeal deserves to succeed. Sahib Singh, driver son of Avtar Singh has appeared as RW 1 on 7.2.1985, He was cross-examined by counsel for the claimants. Opportunity of cross-examination was given to counsel for the insurance company. However, no cross-examination was conducted. The insurance company has led no evidence regarding the date of death of Avtar Singh. It only tendered a copy of the policy into evidence. The question which now arises is whether the insurance company is liable to indemnify the legal representatives of Avtar Singh or not or the fact that Avtar Singh was not alive on the date of accident will be sufficient to absolve the insurance company from the liability. 6. Learned counsel for appellants has referred to clause (5) of the section II insurance policy, in respect of liability to third parties. The said clause reads as under: " (5) In the event of the death of any person entitled to indemnify under this policy the company will in respect of the liability incurred by such person indemnify his personal representatives in the terms of and subject to the limitations of this policy provided that such personal representatives shall as though they were the insured observe, fulfil and be subject to the terms and exceptions and conditions of this policy in so far as they can apply. " 7. Learned counsel for the appellants contended that the insurance policy was issued in the name of Avtar Singh. The insurance company accepted the amount of premium and by virtue of clause (5), the insurance company is liable to indemnify his representatives in the terms of and subject to the limitations of the policy. A Division Bench of this court in B. B. Bhagwat v. Oriental Fire and Genl. Ins. Co. Ltd. , 1994 ACJ 301 (Pandh), has held that burden of proving the fact that the insured was dead was on the insurance company. The insurance company has taken a plea that the contract of policy was void since Avtar singh was not alive on the date of accident. However, in view of clause (5) of the insurance policy, the company is liable to indemnify the personal (Sic. legal) representatives, if he has died after taking of a policy. In the absence of any evidence to the fact that Avtar Singh was not alive on the date of the policy, i. e. , on 26.7.1981, in the name of Avtar Singh, the insurance company cannot be absolved from the liability to indemnify the third party claim. As a matter of fact, learned single Judge in om Parkashs case, 1997 ACJ 547 (Pandh), has taken a view that even if the insurance company has renewed the policy in the name of registered owner, still the insurance company is liable to indemnify, a duty is cast upon the insurance company to verify whether the owner of the vehicle is alive or not and also to verify the credentials of the person offering premium. 8. The Hon ble Apex Court of India in g. Govindan V/s. New India Assurance Co. Ltd. , 1999 ACJ 781 (SC), has considered the scope of sec. 103-A of Motor Vehicles Act, 1939 . Sec.103-A of the Act contemplates/permits the transfer of the policy on compliance of the procedure and on payment of fee prescribed. The Hon ble supreme Court has followed the judgment of the High Court of Andhra Pradesh in madineni Kondaiahs case, 1986 ACJ 1 (AP), in preference to the Full Bench judgment of Karnataka and Delhi High Courts as it advances the object of the legislature to protect the third party interest. The Hon ble supreme Court has followed the judgment of the High Court of Andhra Pradesh in madineni Kondaiahs case, 1986 ACJ 1 (AP), in preference to the Full Bench judgment of Karnataka and Delhi High Courts as it advances the object of the legislature to protect the third party interest. The Full bench of Andhra Pradesh High Court has held that the policy is to vehicle and normally it should run with the vehicle and the obligations under section 94 of the Act do not cease with the passing of the property in the vehicle. Thus, the findings of the tribunal absolving the insurance company from the liability to pay the compensation to third party is not sustainable. 9. The Full Bench judgment relied upon by the learned counsel for the respondents is clearly distinguishable. In the said case, insured was not impleaded as a party and still the insurance company was sought to be made liable. In the present case, legal representatives of the insured have been impleaded as a party. Insurance company has not been able to prove that insured was not alive on the date the policy was issued, i. e. , on 26.7.1981 in his name. 10. In view thereof, the award of the tribunal is modified and it is held that the insurance company is liable to indemnify the legal heirs of deceased Avtar Singh owner of the vehicle. The insurance company has been wrongly absolved of the liability by the learned Tribunal. 11. Learned counsel for the appellants pointed out that the amount of compensation has been paid by appellants although the insurance company was liable to indemnify the appellants. In view thereof, the appellants shall be entitled to recover the amount of compensation by way of execution from the insurance company, if the amount has already been paid. No costs. Appeal allowed.