KULWANT SINGH Vs. NAND KANR AND ORS.

JUDGEMENT

(1.) THIS is an appeal under Section 110D of the Motor Vehicles Act, 1939, preferred by one Kulwant Singh, who was driving truck No. PNL -2492 on May 8, 1969, at about 3 p.m. when as a result of an accident Sadhu Singh deceased sustained injuries which resulted in his death. This truck originally belonged to Balwant Singh and Jagir Singh and was insured with the Oriental Fire & General Insurance Co. Ltd. (hereinafter called the insurance company). Nand Kaur, widow of Sadhu Singh deceased, filed a petition claiming an award of Rs. 1,00,000/ - as damages. During the pendency of the proceedings, Balwant Singh appeared in Court and stated that he had sold away his 2/3rd share in the truck in favour of Kulwant Singh, Jagir Singh and Santa Singh. This very Kulwant Singh was driving the truck when the accident took place.

(2.) THE learned Tribunal held that at the material time, the truck was being driven by Kulwant Singh who had taken over the wheel from Charan Singh, the second driver, in an unauthorised manner. It further held that since the truck was not being driven for the benefit of the owners, the latter could not be burdened with any vicarious liability. On the question of the quantum of compensation, it held that Sadhu Singh deceased was earning Rs. 120/ -per month out of which he used to send Rs. 40/ - per month to Mrs. Nand Kaur the claimant. Since he was 60 years old when this accident took place, the compensation was calculated for the period of ten years which came to Rs. 4,800/ -. Out of this amount, disallowance for a sum of Rs. 1,600/ - was made on account of lumpsum payment. Another sum of Rs. 100/ - was also deducted out of this amount because an equivalent amount had been awarded as compensation to her by the criminal Court which tried Kulwant Singh. In this manner, compensation payable to her was determined at Rs. 3,100/ - was ordered to be paid with interest at the rate of 6% per annum. The claim was decreed against Kulwant Singh alone because as already indicated the owners of the truck were not held vicariously liable and Kulwant Singh was held responsible because he was plying the truck in an unauthorised manner.

(3.) MR . L.M. Suri, the learned Counsel for the Appellant, has submitted that on the record there was not sufficient evidence to prove that Balwant Singh had transferred his share in the truck to Kulwant Singh, Jagir Singh and Santa Singh and as such the insurance company was liable under the policy issued by it. I am not prepared to agree with him on this point. It is a matter of common knowledge that owners of trucks and heavy vehicles hand over the registration books and their affidavits to the transferees of the vehicles which from their point of view effect complete change in the ownership of the vehicle. The new owner then takes the necessary steps with the Registering Authority to have the final transfer in his or her name. The same view was taken by a learned Judge of this Court in I hul Bus Service, Rampufa. v. Financial Commissioner and Ors. : 1968 A.C.J. 57 with which I respectfully agree. Kulwant Singh appeared as R.W. 1 and made a prevaricating statement in the sense that he did not know whether he was the owner of the vehicle or not. Santa Singh appeared as R.W. 2 and admitted that 2/3 years back he had purchased the share of Balwant Singh. The two witnesses had made these statements in spite of the fact that if they were proved to be the owners of the vehicle, they would have to pay the compensation. In a way these statements are against their own respective interest. They stand un -rebutted on the record. Besides, Balwant Singh has produced an affidavit sworn by Kulwant Singh, Jagir Singh and Santa Singh which was duly attested by an Oath Commissioner in which it had been stated that these three persons had purchased the share of Balwant Singh in the offending truck and that they would be responsible for paying taxes etc. When all this evidence is cumulatively considered, it stands established that the share of Balwant Singh had been transferred in favour of Kulwant Singh, Jagir Singh and Santa Singh on the date when this accident took place. Even on the basis of this finding, the insurance company cannot stand absolved of its liability. The policy of insurance had not come to an end on the date when the accident took place. Under this policy, the insurance company was under a liability to indemnify even the driver who sustained any loss due to any accident. Originally the truck belonged to Balwant Singh and Jagir Singh. Later on Balwant Singh's share had been transferred in favour of this Jagir Singh, Kulwant Singh and Santa Singh. This transfer implies that Jagir Singh had agreed to accept Kulwant Singh and Santa Singh as co -sharers in the truck. Any of the three co -sharers of the truck could manage its affair. Any act done by any one of them would bind the other two co -sharers. When Kulwant Singh himself took the wheel in his own hand he would be deemed to have done so with the implied consent of the the other two co -sharers, namely, Jagir Singh and Santa Singh. In this case even if Kulwant Singh were to be held to be liable, the insurance company was bound to indemnify him under the policy of insurance. The matter is not res integra. In New India Assurance Company Ltd. v. Moti Raw and Ors. : 1967 A.C.J. 312, a Division Bench of this Court held that even if the vehicle is transferred during the continuance of the insurance policy the company would be liable because it would be under an obligation to indemnify the driver. Sitting in Single Bench, I am bound to follow this view with respect.