THE NATIONAL INSURANCE COMPANY LTD Vs. BACHIBAI

JUDGEMENT

(1.) THIS miscellaneous appeal has been filed by the National Insurance Co. Ltd., Indore against the award for the sum of Rs. 4,500/ - made by the Motor Accident Claims Tribunal, Indore, in claim Case No. 16 of 1974.

(2.) ON 27 -12 -1973 one Shriram was knocked down by tempo No. MPO 9572 near Bijalpur Octrol Post, Indore. He was removed to the M.Y. Hospital, Indore, where he died on the next day. The Respondents Nos. 1 and 2 are the legal representatives of the deceased who had lodged the claim for compensation under Section 110 -A of the Motor Vehicles Act, for a sum of Rs. 50,000/ -. It was alleged that at the time of the accident the tempo was owned by Respondent No. 3 and it was being driven by Respondent No. 4. It was insured with the Appellant insurance company. The case of the claimants was that the fatal accident took place on account of the rash and negligent driving of the tempo by the tempo driver Respondent No. 4, who was in the employment of Respondent No. 3. The said Respondents did not appear before the Claims Tribunal to contest the claim and, therefore, the case proceeded exparte against them. The claim was, therefore, contested by the Appellant insurer alone inter alia on the grounds that the said tempo was sold by the insured prior to the date of accident; that the person who was driving the tempo at the time of the alleged accident was not having any proper or valid driving license to drive the same and that Respondent No. 4. was neither in the employment of Respondent No. 3 nor he was driving the tempo with the permission or consent of Respondent No. 3. The Appellant denied the allegations of rash and negligent driving made by the claimants against ;he driver and contested the quantum of compensation as well.

(3.) I have heard the learned Counsel for the Appellant as well as for Respondent Nos. 1 and 2 and perused the record. The first question for consideration is whether prior to the accident Respondent No. 3 had sold the tempo, involved in the accident, on account of which the insurance policy had come to an end. It is pertinent to note that Respondent No. 3 although allowed the proceedings before the Claims Tribunal to continue exparte, appeared in the witness box as a witness (N.A.W.4) on behalf of the Appellant insurance company and deposed that he had sold the tempo to one Maqbool of Mhow on 28.4.73. This witness has produced the original agreement of sale at Ex. D.7. When the document was executed by this witness in favour of Maqbool, it is not known how he had produced it before the Tribunal from his custody. The claimants had served this witness with a notice through a lawyer of which he gave reply Ex. D.5. In that reply this witness did not disclose the name of Maqbool as the purchaser of the tempo. It may also be noted that even after the alleged transfer of the vehicle the insurance policy Ex. D. 10 was issued for the period from 12 -6 -73 to 11 -6 -74 in the name of Respondent No. 3. The Appellant's witness Sayed Ahmed Khan (N. A. W. 5) has deposed that the receipt of the premium of the policy was also passed in the name of Respondent No. 3. According to this witness the amount of premium was received in the Company through the agent by name Pandey. The Appellant did not examine the said agent to prove as to who actually paid the money.