The National Insurance Company Ltd. vs Bachibai and Others

B.R. Dube, J.—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.

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 u/s 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.

The Claims Tribunal found that it was not proved that who was actually driving the tempo at the time of the accident. It was however held that the fatal accident was caused on account of the rash and negligent driving of the tempo by the driver whosoever he may have been. The Claims Tribunal also held that the tempo was not sold by Respondent No. 3 prior to the said accident ; that the driver who caused the accident was an employee or the agent of Respondent No. 3 ; that there was no breach of any conditions of the insurance policy and that Respondent No. 3 the insured and the Appellant insurer were both liable to pay the compensation. The Claims Tribunal assessed the compensation at Rs. 4,500/- and gave the award for the said sum jointly and severally against the Respondent No. 3 and the Appellant. The claim against Respondent No. 4 was however dismissed. The Appellant has, therefore, come to this Court in appeal.

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.

The document Ex. D. 7 was executed in favour of the vendee by name Maqbool Hussain but the Appellant examined Abdul Hussain (N.A.W. 2) who says that he had purchased the tempo from Respondent No. 3. This witness does not give any explanation as to why the name of vendee was shown in Ex. D. 7 as Maqbool Hussain. The witness does not say that he is known by the name of Maqbool Hussain as well. That apart, this witness has given all together a different story. He says that he had purchased the tempo in a rotten condition in the month of March 1973, from Respondent No. 3 and after repairing it he had sold it to one Yadeo and got the document executed in his favour directly from Respondent No. 3 Hussain Khan (N.A.W.4). It is thus clear that the alleged transaction with respect to the transfer of the vehicle is a faked one and the Claims Tribunal was fully justified in disbelieving it. I, therefore, concur with the finding of the Tribunal that it is not proved by reliable evidence that prior to the accident the Respondent No. 3 had transferred the tempo to some third person. Therefore, it must be held that the insurance Policy was subsisting on the date of the accident. In view of this finding of fact it is not necessary to discuss case law one the point that on the transfer of a vehicle the insurance policy in the absence of a contract to the contrary comes to an end.

Now the question for consideration is whether the driver, who was driving the tempo at the time of the accident had no valid licence and whether he was not driving the tempo as an employee of the insured or with his permission. It is true that the Tribunal has come to the finding that there is no evidence to prove that Respondent No. 4 was driving the vehicle The Respondent No. 3 in the witness box has also stated that the Respondent No. 4 was not in his employment. The Appellant has not proved that the driver who was driving the vehicle had no driving licence. The learned Counsel for the Appellant has contended that the Appellant having specifically pleaded that the driver of the vehicle had no valid driving licence to drive it, the burden was on the driver to produce the licence and in the absence of that the insurance company cannot be held liable. In support of this contention reliance is placed on the decision of this Court in the The Anand Insurance Company Ltd. Vs. Hasanali and Others, . But the said decision in Ruby General Insurance Co. Ltd. Vs. Kesharbai and Others, on the ground that the principle laid down in it would not be applicable in a case in which the driver did not appear before the Claims Tribunal and the proceedings continued exparte against him.

It is true that when the driver is unknown it would be impossible for the insurance company to prove that he had no valid licence to drive the vehicle. But in such a case the allegation of the insurance company would be based purely on imagination. According to Order 6, Rule 15 CPC every pleading shall be verified at the foot by the party or by one of the parties or by some other person to be acquainted with the facts of the case. In the instant case the person who has signed the written statement and the verification on behalf of the Appellant has said that the contents of the written statement from paras 1 to 12 are to the knowledge of the Appellant. Thus in case the Appellant company does not know who was driving the vehicle;which was insured with it, at the time of the accident, it could not be said that the driver whosoever he may be was driving the vehicle without any licence. In such a situation when no evidence is forthcoming from either side the matter would rest on the presumption that the vehicle was driven on the master''s business by his authorised agent or servant. This view gets support from the decision in A. Harsha V. Rai Vs. Dr. K.V. Karna and Others, ; Sitaram Motilal Kalal Vs. Santanuprasad Jaishankar Bhatt, Gyarsilal Jagannathprasad Mor Vs. Pandit Sitacharan Dubey and Others,

There is therefore nothing on record to prove that the Appellant is not liable under the policy on account of certain breach of its conditions. The findings of the Tribunal that the accident occurred on account of rash and negligent driving of the vehicle by the driver has not been assailed by the learned Counsel for the Appellant at the time of the hearing of this appeal. He has also not challenged the quantum of the compensation. Once it is established that Respondent No. 3, the insured, was the owner of the vehicle at the time of the accident and was liable to pay compensation on account of the accident caused by the vehicle, the liability of the Appellant to indemnify cannot be denied when the insurance policy was found to be subsisting and its conditions were not infringed. Therefore, the Claims Tribunal is justified in awarding compensation amounting to Bs. 4,500/- against the Appellant and Respondent No. 3 and hence no interference is called for by this Court in appeal.

For the above reasons this appeal having got no force is hereby dismissed with cost. Counsel''s fee be taxed as per schedule, if certified.