MAIMOON BI Vs. UNITED INDIA INSURANCE CO LTD

JUDGEMENT

(1.) This is an appeal by the claimant in a motor accident case. The appellant is the wife of one Mohamed Ismail who met with an accident on 7-3-1981, and died as a result of the same at the spot. It is stated that he was standing in lorry T.M.S. 9097 and due to the negligent driving of the lorry by the driver he was overthrown from the lorry and then ran over by the same lorry. The first respondent is the Insurance Company. The third respondent is the registered owner. The vehicle was insured with the first respondent and the policy for the same stood in the name of the third respondent. The Tribunal found that the accident happened due to rash and negligent driving of the vehicle by the driver and that therefore, the claimant is entitled to compensation. The Tribunal also fixed the compensation at Rs. 36,000. The correctness of the quantum is now not in dispute. However, the Tribunal directed the second respondent alone to be liable and dismissed the claim as against respondents 1 and 3. This was on the ground that the lorry had been transferred by the third respondent to the second respondent and that the policy stood in the name of the third respondent and it had not been transferred to the second respondent.

(2.) We are at a loss how this conclusion could have been reached by the Court below at all. None of the parties produced the registration certificate in order to show in whose name the vehicle was standing on the date when the accident occurred. The Tribunal purported to rely on the evidence of P.W. 1, the wife of the deceased who was the claimant and P.W.2, who was a co-employee travelling in the lorry, in support of its finding that the second respondent was the owner of the vehicle on the day when the accident happened. The evidence extracted in the order does not in any way show that there was any valid transfer of the vehicle to the second respondent on the day when the accident took place. The only sentence which has any bearing at all on this question is the one found in cross-examination of P.W. 1, which reads as follows :-

(3.) The learned counsel for the Insurance Company was at pains to show that in the case of a motor vehicle, it is not necessary that there should be a transfer of the registration certificate in order to effectuate a valid transfer and that transfer may be effected immediately by sale and purchase by delivery of possession. In support of this contention, he has relied on the decisions reported in M. Boopathy v. M. S. Vijayalakshmi, 1966 Acc CJ 1, South Indian Insurance Co. Ltd. v. Lakshmi, 1971 Acc CJ 122, and Hema Ramaswami v. K. M. Valarence Panchami, 1981 Acc CJ 288. All these cases are irrelevant. In each and every one of these cases it was found that there was a transfer by sale and purchase and passing of consideration. The only point taken was that the sale was not complete till there was an endorsement in the registration certificate. It was held that the transfer does not wait till the endorsement is made on the registration certificate and that when the sale and purchase is effected and the consideration passed, the sale is complete. That is not the case here. There is no evidence to show when it was sold and whether the second respondent purchased it at all from the third respondent. In the circumstances, we are unable to say that there was any transfer at all which will stand in the way of the claimant. The net result is that the third respondent will be liable for the claim and the first respondent insurance company will be vicariously liable. As the second respondent has not questioned his liability and filed any appeal, the decree granted by the Tribunal as against the second respondent also could not be varied. The net result is that all the respondents are jointly and severally liable to pay the money to the claimant appellant. We may also point out that the second and third-respondents remained ex parte and they did not deny liability. The claimant who is not aware as to who is the owner of the vehicle has impleaded both the second and third respondents as parties to the claim petition. If the Insurance Company wanted to extricate itself from liability on a special plea that the policy is not in the name of the owner, it should have pleaded and proved by showing that the third respondent had transferred the vehicle when the accident took place and that having not been done it is not open for the Insurance Company to deny its liability. The burden is certainly on the Insurance Company to prove that the third respondent was not the owner on the date of the accident and that the Insurance Company having failed to do so they have to suffer the liability. The request of the learned counsel for the Insurance Company to give a second chance by way of a remand to the Tribunal below in order to prove whether there was a transfer or not on the date when the accident occurred, to say the least, is unreasonable and unjustified and could not be entertained at this stage.