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Judgment
Bhaskar Bhattacharya, J.—This appeal is at the instance of the registered owners of the vehicle (Transferrors) and is directed against order dated April 22, 1989 passed by the Motor Accident Claim Tribunal, Midnapore in Judicial Miscellaneous (M.A.C.) Case No. 239 of 1984 thereby allowing an application for compensation filed by the respondent No. 1 by directing the appellants to pay a sum of Rs. 50,000/- with interest @ Rs. 12% p.a. with effect from September 17, 1984 till full payment. The respondent No. 1 filed an application for compensation against the appellants and the respondent Nos. 2 and 3 for the accident caused by a truck bearing Registration No. WGB-1448 as a result of which he was seriously injured resulting in permanent disability.
The aforesaid proceeding was initially contested by the appellants as well as the Insurance Company. However, ultimately the Insurance Company alone contested the said proceeding.
The learned Tribunal below on consideration of the materials on record arrived at the findings that due to rash and negligent driving of the offending vehicle the respondent No. 1 became permanently disabled and that there was no contributory negligence on the part of the respondent No. 1. The Tribunal below further found that at the time of occurrence of the accident, the appellants were the registered owners of the vehicle and that there was no valid insurance policy. In view of such finding, the Tribunal below awarded a sum of Rs. 50,000/- in favour of the respondent No. 1 to be payable by appellants alone.
Being dissatisfied, the appellants have preferred the instant appeal.
In this appeal an application for stay was filed and in connection with the same, a supplementary affidavit was filed on behalf of the appellants, annexing xerox copy of the policy covering the offending vehicle for a period between February 18, 1984 and February 17, 1985 and praying for taking into consideration the said policy at the time of hearing of the appeal.
In view of the aforesaid supplementary affidavit, this court directed Mr. K. K. Das, the learned counsel appearing for Insurance Company to take instruction from his client whether really such insurance policy was taken by the appellants and permitted him to file affidavit-in-opposition, if the same is disputed.
Mr. Das after taking instruction from his client fairly submitted before this court that in fact such insurance policy was taken by the appellants and as such the said xerox copy might be taken into consideration as an additional evidence for effective disposal of the instant appeal. Mr. Das however submitted that he wanted to make submission on the question of legality of the said insurance policy even though such insurance was taken by the appellants.
In view of undisputed existence of the said insurance policy, we have taken into consideration the said annexure to the supplementary affidavit as an additional evidence before this court.
Mr. K. K. Das, the learned counsel for the Insurance Company has strenuously submitted that the additional evidence accepted by this court cannot help the appellants in any way in view of the fact that the vehicle was transferred to the respondent No. 2 (Transferee) on February 15, 1984 and the new policy was taken on February 18, 1984. Mr. Das contends that at the time of entering into an agreement for insurance, the appellants were not deleted. Mr. Das contends that in view of the provisions contained in Sale of Goods Act, the moment the transfer has been effected by delivery of possession, the appellants ceased to be the owners of the vehicle and as such not being the owner of the vehicle could not enter into a valid agreement for insurance with his client on February 18, 1984. Accordingly Mr. Das contends that although such agreement was entered into on February 18, 1984, the same being against the provision of the Motor Vehicles Act, Insurance Company was not liable to pay the amount awarded by the Tribunal.
Mr. M. M. Das, the learned counsel appearing on behalf of the appellants has however opposed the aforesaid submission of Mr. K. K. Das and by relying upon a decision of the Apex Court in the case of G. Govindan Vs. New India Assurance Co. Ltd. and Others, contended that after having taken premium from the appellants, the Insurance Company cannot now evade the third party risk. Mr. Das contends that even after transfer in favour of respondent No. 2 his clients were liable till fact of such transfer was not communicated to the Motor Vehicles Authority and as such when the insurance was effected on February 18, 1984 his client was liable to all damages resulting from any accident since communication of sale was not made to the Motor Vehicle Authority till March 19, 1984. Mr. Das, therefore, submits that the vehicle was covered under a valid insurance and his client should not be held liable for the compensation.
Mr. K. K. Das, the learned counsel appearing for the Insurance Company tried to distinguish the aforesaid decision of the Apex Court by contending that in the aforesaid case the Apex Court merely recognised the liability of the transferror to pay compensation till the transferror fulfils the statutory obligation u/s 31 of the Motor Vehicles Act. Mr. Das contends that in this case such obligation having been fulfilled on March 19, 1984 and the accident having occurred on July 3, 1984, the insurance lapsed from March 19, 1984 and as such there was no valid insurance in the eye of law at the time of accident.
After hearing the learned counsels for the parties and after going through the aforesaid decision of the Apex Court, we find that in the said decision the Apex Court approved the principle that although the covering of risk of property and person cannot be enforced by a transferee without assignment of the policy in his favour, so far as the policy covers the risk against third party, the same continues notwithstanding absence of any assignment and the same continues although the proprietary interest in the vehicle had come to an end.
Therefore, we find substance in the contention of Mr. M. M. Das appearing on behalf of the appellants that his clients were entitled to enforce the third party risk against the Insurance Company although they had already transferred their proprietory interest in the vehicles in favour of the respondent No. 2.
In view of the additional evidence, we find that at the time of accident the vehicle was covered under an insurance and as such the finding of the learned trial Judge that there was no valid insurance from February 18, 1984 is liable to be set aside.
As regards the other findings of the learned trial Judge, regarding occurrence of accident resulting in permanent disability of the respondent No. 1, the income of the respondent No. 1 and also the amount of compensation awarded by such tribunal, we do not find any reason to interfere with those findings as those are based on proper appreciation of the evidence on record. Therefore, on consideration of the entire materials on record, we modify the judgement and award passed by the Tribunal to this extent that the respondent No. 4 viz. the Insurance Company is bound to indemnify the award as the vehicle was validly covered under the insurance at the time of accident. The respondent No. 4 viz. Insurance Company is directed to pay a sum of Rs. 10,000/- which was deposited by the appellants as a condition of the stay of the impugned order as per previous order of this court.
The appeal is thus allowed. The impugned order is modified to the extent indicated above.
No order as to costs. The Respondent No. 1 is entitled to withdraw the balance sum of Rs. 5,000/- out of Rs. 10,000/- deposited in the tribunal below as per previous order of this court without furnishing any security.
Amit Talukdar, J.
I agree.