ORIENTAL INSURANCE COMPANY LIMITED BANGALORE Vs. RAVICHANDRAN

JUDGEMENT

(1.) This civil revision petition has been preferred by the Insurance Company and is directed against an order dated 17-8-1991 of the Motor Accident Claims Tribunal, Bangalore City in M.V.C. No. 2474 of 1989. The brief facts are that on 18-11-1989 at about 11.40 p.m., the claimant was riding his scooter bearing Registration No. MKI 65 near Netkallappa Circle when a motor cycle bearing Registration No. CAU 7346 is alleged to have approached at a high speed and dashed against the scooter. The claimant sustained injuries and he was taken to hospital for treatment. He thereafter filed a claim before the Motor Accident Claims Tribunal for compensation. As was to be expected, the registered owner of the motor cycle and the Insurance Company were proceeded against. The first respondent took up the plea that he had sold the motor cycle on 12-5-1989 to one Bopanna whose address he had disclosed. The Insurance Company took up the plea that since the first respondent has transferred the vehicle to some other party during the pendency of the policy, that the Insurance Company is not liable because the change of ownership was not intimated to the Insurance Company nor has the Insurance Company recognised the subsequent transferor. The contention was that under these circumstances the insurance policy itself had lapsed and that therefore no liability arose vis-a-vis, the Company. The Tribunal rejected the defence particularly on the ground that the first respondent, though he gave evidence stating that he had transferred the vehicle and though he produced the delivery note, had not produced any further evidence. The Tribunal had occasion to comment on the evidence regarding the alleged transfer and to hold that in the circumstances of the case the evidence was not good enough and that therefore the respondent 1 and the Insurance Company i.e., respondent 2 are liable. It is against this order that the present civil revision petition has been preferred.

(2.) The learned Advocate who represents the petitioner-Insurance Company submitted that in the facts and circumstances of the case, the decision is clearly erroneous. He points out that the insurance policy was issued when the old Act was in operation and furthermore that the transfer of the vehicle has also taken place when the old Act was in operation. His submission is that as far as the law as it stood at that point of time is concerned, that the position is virtually concluded by two decisions of the Full Bench of this Court which followed each other and in both of these cases the same position of law has been determined though the second decision clarifies the matter even further. The first one is in National Insurance Company Limited v Mallikarjuna and Others, and the second one in Paragounda v Bhimappa and Others. The learned Advocate points out to the Court that these two decisions have unequivocally laid down that where the transfer takes place, that under the provisions of the Sale of Goods Act the property in the goods passes to the purchaser and irrespective of the registered ownership as reflected in the documents that are issued by the Competent Authorities such as the R.T.O., that the original owner or the seller ceases to have any interest in the vehicles. The contract of insurance is one entered into between the Insurance Company and the insured and therefore when the insured party transfers the vehicle without intimation to the Insurance Company, the liability of the Company ceased because the contract comes to an end. The position in law as pointed out by the learned Advocate is unambiguous and he submits that on this basis it will have to be held that since the vehicle in the present instance has been transferred on 12-5-1989 without intimation to the Insurance Company when this incident took place that the insurance policy cannot be pressed into operation for purposes of fastening liability on the Company. I do concede that this position is correct. There is however one aspect of the matter which does require some consideration because the position in law has altered considerably with effect from 1-7-1989 after which date by virtue of the provisions of Section 157 of the new Act irrespective of whether intimation is given to the Company or not, the policy automatically gets transferred to the new owner. The question is as to what would happen in several of the borderline cases such as the present one where the policy in question was issued prior to the new Act coming into force but was alive on the date when the new Act came into force and secondly in situations where the transfer has taken place on a date prior to the new Act coming into force but where the incident resulting in the injuries has taken place after the new Act has come into force. One possible contention is that after 1-7-1989, once the new Act has come into force, all incidents or accidents as they may be termed would be covered by the terms of the new Act. That to my mind would normally be the rational way of viewing the matter because the change of law, though it cannot have retrospective effect must be given effect on and from the date when the statute came into force. It would lead to an extremely incongruous situation if one were to hold that merely because the insurance policy was issued prior to the date on which the Act came into force, that it would be governed by the old law. Section 157 of the new Act has only engrafted a procedural change and to my mind therefore one would have to rationally construe it by holding that the change will have to be given effect to on and from 1-7-1989. The petitioner's learned Advocate has however very correctly drawn my attention to one set of situations such as what has happened in the present case namely that the transfer of the vehicle is alleged to have taken place on 12-5-1989 when admittedly the old Act was in operation. If the evidence in respect of transfer is accepted, then the legal consequences would follow insofar as the policy would lapse and therefore, a situation would arise whereunder even though the accident has taken place as late as on 13-11-1989 the insurance policy would still be no valid cover in respect of that vehicle. It is necessary therefore to clarify this aspect of the matter, that it would be equally necessary that no transfer of the vehicle should have taken place in respect of an existing policy prior to 1-7-1989 because if such a transfer has taken place then the consequences as indicated above would inevitably result.

(3.) The submission of the petitioner's learned Advocate is that applying the aforesaid position in law to the facts of the present case, that the order passed as against the Insurance Company who are the petitioners before me is erroneous and will have to be set aside. As far as this aspect of the matter goes, under normal circumstances, I would have straightaway accepted the submission canvassed except that there are some difficulties which the present set of facts present. I do concede that the petitioner's learned Advocate has vehemently submitted that no better evidence could have been produced before the Court insofar as the first respondent has stated in his written statement that the vehicle was transferred on 1-5-1989 and he has disclosed the name and address of the transferee. Secondly, the learned Advocate submits that this position has been substantiated by respondent 1 who has given evidence on oath which evidence has not really been effectively refuted in the course of the trial. Thirdly he submits that this evidence has been corroborated by Ex. R-1 which has been produced by the respondent 1 and which happens to be a delivery note. Beyond this material, the learned Advocate submits that the Court could not have asked for any better evidence. There is considerable substance in the argument advanced by the learned Advocate, though I must point out as of necessity, that the learned Advocate who has also argued that there is no plausible ground on which the respondent 1 wants to disclaim his ownership because by doing so he runs the risk of inviting an order against himself having regard to the position in law whereas on the other hand, if the vehicle infact still belongs to him, it is more in his interest to admit that position as the liability for compensation would devolve on the Insurance Company Cumulatively therefore, he submits that the Tribunal was in error in having recorded a finding that the evidence would not go in his favour.