Dismissed

Vs

Bombay HC12 Dec 2005FA/1063/1987

Case brief

AI extract

What is this about?

The High Court dismissed three appeals filed by the vehicle owner and insurance company against the Motor Accident Claim Tribunal order. The court held that the insurance company remains liable as no intimation of transfer was proved, and liability cannot exceed the policy sum.

What did the court decide?

All three first appeals were dismissed, confirming the Tribunal's order directing the owner and insurer to pay compensation.

What the court decided

AI extract

¶1

[1]

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELALTE JURISDICTION

¶3

 FIRST APPEAL NO. 1063 OF 1987
 WITH
 FIRST APPEAL NO. 587 OF 1990
 WITH
 FIRST APPEAL NO. 588 OF 1990

¶4

 FIRST APPEAL NO. 1063 OF 1987

¶5

 Purshottam Narayan Mehta ..Appellant
 (Orig. Opp. 2)
 Vs.
 1.Smt. Mamati Jayram Ambonkar
 2.Mr. Prabhakar Ambaji Ambonkar
 3.The Oriental Fire and General
 Insurence Company Ltd.
 4.Shri Abdul Rahiman Ishamuddin Jamdar
 5.Shri Mohamad Ayyas Ali Faki. ..Respondent.
 (No.1 Applciant and Nos. 2 to 4 original
 Opponents).

¶6

 Mr. Dushyant PUnekar h/f Mr. R.L. Patil for the
 appellant.
 Mr. vivek Salunke with Mr. Prafulla Shah for
 respondent NO.1.

¶7

 FIRST APPEAL NO. 587 OF 1990

¶8

 Tbe Oriental Fire and General ..Appellant
 Insurance Com. Ltd. Bombay- 400 020 (Orig. Opp. 3)

¶9

 Vs.
 1.Smt. Mamati Jayram Ambonkar
 2.Mr. Prabhakar Ambaji Ambonkar
 3.Purshottam Narayan Mehta
 4.Shri Abdul Rahiman Ishamuddin Jamdar
 5.Shri Mohamad Ayyas Ali Faki. ..Respondent.
 (No.1 Applciant and Nos. 2 to 5 original
 Opponents Nos. 1,2,4, and 5).

¶10

Vs — Insurance | Bombay HC (2005)

¶14

 Vs.
 1.Shantaram Anna Ambonkar
 2.Mr. Prabhakar Ambaji Ambonkar
 (deleted as per order dt.1/10/1991.
 3.Purshottam Narayan Mehta
 4.Shri Abdul Rahiman Ishamuddin Jamdar
 5.Shri Mohamad Ayyas Ali Faki. ..Respondent.

¶19

 . These are three appeals filed against the common
 order dated 31/3/1987, passed by the Motor Accident
 Claim Tribunal ( Claim Tribunal), whereby, the
 appellant-Insurance Company, in first appeal No. 587
 and 588 of 1990 i.e. original opponent No.3 and the
 appellant in First appeal No. 1063/1987, original
 opponent NO.2-owner of the vehicle, have been directed
 to pay an amount of Rs.64,800/- together with interest
 at 12 % p.a. from the date of petition till payment of

¶21

 the amount and proportionate cost of the petition.
 Opponent No. 2 have been directed to pay an amount of
 Rs.14,800 and opponent No.3 to pay an amount of Rs.
 50,000/- with interest on the respective amounts.

¶22

 2. The learned Counsel appearing for the appellant
 in First Appeal No.1063/1987-opponent NO.2, basically
 contended, that in view of the Supreme Court’s judgment
 in ( G. Govindan V. New India Assurance Co. Ltd and
 others) (AIR 1999 S.C. 1398) and (Rikhi Ram and another
 V. Smt. Sukhrania and others ) (AIR 2003 S.C. 1446)
 based on the provisions of sections 94, 95 and 103A of
 Motor Vehicles Act (4 of 1939), the Apex Court has made
 it very clear that so far as, the liability of Insurance
 Company is concerned, it does not cease in absence of an
 intimation of transfer of vehicle to the insurance
 company. It is specifically observed that the policy if
 not transferred in the name of transferee of vehicle,
 that itself can not be a ground to deny the compensation
 by the insurer to the victim or the legal representative
 of the victim. A factum of no initimation or intimation
 is an interse dispute between the transferor or
 transferee of the vehicle. The victim or such any heirs
 of the victim, should not be made to move here and/or

¶24

 there for their respective claims. The fact that the
 vehicle was admittedly insured, and there was a
 Insurance policy on the date of incident, that itself
 according to me sufficient to consider the case of the
 victim to grant such compensation. This is a matter of
 statutory liability, under the Motor Vehicle Act.

¶25

 3. The learned counsel appearing for the owner,
 opponent No.2 contended that there was initimation given
 and therefore, he was not liable to make such payment.
 The learned Judge, however, after considering the
 material on the record, clearly gave finding on the
 issue against opponent No.2, holding him to be liable,
 as he failed to prove the service of such intimation of
 transfer of ownership.

¶26

 4. In this matter, admittedly, the incident took
 place on 22nd November, 1980 at about 9.30 p.m. As per
 the appellant in appeal No. 1063/1987, the vehicle was
 sold on 27/4/1983 to one Abdul - respondent No.4. The
 possession receipt was also obtained and it was already
 handed over to respondent No.4. As per the appellant,
 the Insurance Company was also informed about the said
 transfer. Respondent No 4 further transferred the

¶30

 5. The incident took place on 22/11/1980. The
 Insurance Company’s liability is concerned, unless it is
 proved that the vehicle was actually transferred and
 recorded accordingly after the intimation, they are
 liable to make the payment, as per the Insurance policy.
 However, it is the case of the appellant-Insurance
 company that they have not received any such intimations
 on their record. Therefore, for the purpose of the
 case, the vehicle at the relevant time stood in the name
 of opponent No.2. Mere sending of intimation itself is
 not sufficient. What is necessary is to prove the
 receipt of the intimation by the Insurance Company. In
 the present case the Insurance Company denies the same,
 therefore, there is no reason to accept the said
 contention and or the case of the original owner. The
 factum of such transaction unless duly intimated to the
 Insurance Company, and recorded accordingly remains in
 the name of the person in whose name the vehicle was
 registered in the record of the Insurance Company. The
 Insurance Company therefore, on the date of incident,

¶32

 has admittedly not made any change or unable to change
 the name of the owner in the register. Therefore,
 considering this, I am of the view that on 22nd
 November, 1983 the vehicle stood in the name of the
 original owner as they failed to prove the service of
 the intimation of the transfer of vehicle, as required
 under the law.

¶33

 . The learned Trial Court therefore, in this
 background directed opponent No.2. i.e. appellant in
 First Appeal No. 1063/1987 to make the payment of
 balance amount of Rs. 14,800/-, based on the Insurance
 Policy, on the record.

¶34

 6. The liability of Insurance Company i.e.
 Appellant in First Appeal No. 587/1990 and 588/1990
 remained intact. There is no such challenge about the
 liability to the accident of Rs.50,000/- so far as, the
 policy produced on the record.

¶35

 7. The learned Counsel appearing for the
 appellant-owner in First Appeal No. 1063/1987 however,
 based on the Judgment of G. Govindan (Supra) contended
 that the liability of Insurance Company cannot be

¶37

 restricted to the extent of Rs. 50,000/-. There is no
 justification on the record to restrict such liability.
 The Insurance Companies are liable to make payment of
 full amount as awarded by the Motor Accident Tribunal.
 I am not inclined to accept this submission in view of
 the clear finding given by the Tribunal that the
 liability of the Insurance Company-opponent No.3, as per
 the Insurance Police produced on the record was limited
 to Rs. 50,000/-. The provisions of Motor Vehicle Act
 and the scheme framed thereunder in respect of the
 liability of Insurance Company is very clear. Apart
 from the liability of the contract between the parties,
 the statutory liability, as expressed cannot be
 overlooked. The liability as taken note of is limited
 to Rs. 50,000/-. It is settled that the insurance
 company cannot be directed to make payment beyond the
 contractual liabilities. In view of this the liability
 to the extent of Rs. 50,000/-, is correct.

¶38

 8. The appellant’s are the insurance Company in
 First Appeal Nos. 586 and 588 of 1990. There are
 common issues to be considered based on the provisions
 of Motor Vehicle Act in reference to the liability and
 or recovery of the amounts from other transferee of the

¶41

 appeals. Without going to that controversy, at this
 stage, once there is a clear finding, and there is no
 material to prove the service of the intimation to the
 insurance Company, the Motor Accident Tribunal is right
 in directing opponent No.2 - original owner of the
 vehicle and Insurance Company to make the payment to the
 victims respondents 1 and 2 in First Appeal
 No.1063/1987, 587/1990 and 588 of 1990.

¶42

 9. The learned Counsel appearing for the claimants,
 is not sure whether the amounts has been withdrawn or
 not, if amounts has been withdrawan, there is no further
 order necessary, but if not withdrawn, the original
 claimants are free to withdraw the said amount.

¶43

 10. The impugned Judgment and order, restricting the
 liability of the Insurance Company to the extent of Rs.
 50,000/-, with interest and the liability of the owner
 opponent No.2, to Rs. 14,800/- with interest is
 confirmed.

Vs

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