Partly allowed

Vs

Bombay HC17 Aug 2006FA/1009/1989

Case brief

AI extract

What is this about?

Two appeals dealing with motor accident compensation arising from a clash between two motorcycles and a tractor. The court enhanced compensation after finding the Tribunal provided adequate notice during appeals. Liability was fixed on the negligent motorcyclist's insurance.

What did the court decide?

Compensation enhanced to Rs. 1,48,800 payable by motorcyclist; Insurer liable for Rs. 50,000; Interest reduced to 7.5%.

What the court decided

AI extract

¶1

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 CIVIL APPELLATE JURISDICTION

¶4

 FIRST APPEAL NO. 1009 OF 1989 FROM ORIGINAL DECREE

¶5

`1) Smt. Maya Devi w/o Kevalram Balani ]`
`2) Gopal s/o Kevalram Balani ]`
`3) Haresh s/o Kevalram Balani ]`
`4) Hemant s/o Kavalram Balani ]`
`5) Smt. Paribai Meghraj Balani ] APPELLANTS`
`Nos. 2, 3 and 4 being minors ]` `through their natural guardian, ]` `mother, Appellant No.1 above named ]` `(Original claimants 1 to 5) ]`
`Versus`
`1) Dhondiram Fakira Gavali ]`
`since deceased by his heirs - ]`
`(a) Bhausaheb Dhondiram Gavali ]`
`(b) Smt. Krishnabai w/o Dhondiram ]`
`Fakira Gavali ]`
`]`
`2) Pratap Dhondiram Gavali ] RESPONDENTS`
`3) Pratap Bhagwan Pardeshi ]`
`4) Shankarlal Bhaijee Thakkar ]`
`5) United India Insurance Co. Ltd. ]`
`Madras - 14 ]`
`(Original opponents 1,2,3,5 & 7) ]`

¶6

¶7

 Shri. Jaydeep Deo for Shri. P.K. Dhakephalkar for
 the Appellants.

Vs — Insurance | Bombay HC (2006)

¶12

 Pratap Bhagwan Pardeshi ] APPELLANT
 (Original Opponent No. 3) ]
 Versus
 1) Maya Devi w/o Kevalram Balani ]
 2) Gopal Kevalram Balani ]
 3) Haresh Kevalram Balani ]
 4) Hemant Kevalram Balani ]
 5) Paribai Meghraj Balani ]

¶13

 Nos. 2,3 and 4 minors through ]
 guardian mother Respondent no. 1 ]
 Maya Devi ]
 ]
 (Amended vide Court’s order,dated ]
 12th January 1989 passed on C.A. ]
 6352/88) ]
 6) Dhondiram Fakira Gavali, since ] RESPONDENTS
 deceased by heirs : ]
 (a) Bhausaheb Dhondiram Gavali ]
 (b) Krishnabai w/o Dhondiram ]
 Fakira Gavali. ]

¶15

 7) Pratap Dhondiram Gavali ]
 8) Shankarlal Bhaijee Thakkar ]
 9) New India Assurance Company Ltd. ]
 Bombay. ]
 10) United India Assurance Company ]
 Ltd., 4, Qhites Road, Madras-14 ]
 ]
 (Nos. 1 to 5 Original claimants, ]
 Nos. 6 and 7 Original opponents, ]
 Nos. 1 and 2, Nos. 8 to 10 ]
 Original opponents 5 to 7 ]

¶22

 1. These Appeals can be disposed of by a common
 Judgment as the same arise out of the same Judgment and
 award made by the Motor Accident Claims Tribunal at
 Nasik on 25th July, 1986. For the sake of convenience,
 the parties are hereinafter referred to with reference
 to their status before the Tribunal. The original
 claimants are the legal representatives of deceased
 Kewalram Balani who died in a motor accident which

¶24

 occurred on 9th May, 1981. On the fateful day at 9.00
 am., the deceased was travelling on his motor cycle
 bearing registration No. MXR 1194 towards village
 Karsul and Wadala, Taluka Niphad, District Nasik for
 attending to some work. One Shri D.R. Bapat was
 occupying pillion seat on the motor cycle of the
 deceased. Another motor cycle bearing registration no.
 MTC 7038 which was at the relevant time standing in the
 name of the opponent No. 5, Shri Shankarlal Bhaijee
 Thakkar in the records of R.T.O. was allegedly
 involved in the accident. It is not in dispute that
 before the day of accident, the said motor cycle
 bearing No. MTC 7038 was purchased by the opponent no.
 3 Shri. Pratap Bhagwan Pardeshi. Though the Opponent
 no. 3 had purchased the motor cycle before the
 accident, the entry of his name was not made in the
 record of the R.T.O.. The learned Member of the
 Tribunal has recorded that as per the admission given
 by the learned Advocate appearing for the opponent
 nos. 3 and 5 below Application at Exh. 120, the said
 motor cycle was not insured with the Opponent no. 6,
 the New India Assurance Company Limited. According to
 the case of claimants, a tractor bearing No. MTW- 3813
 and a trolley No. MTS-1096 attached to the Tractor
 were also involved in the accident. The original
 opponent No. 1 Dhondiram Fakira Gavali (deceased) was
 admittedly the owner of the tractor and the trolley.
 The Opponent No. 2 Pratap, the son of Dhondiram Gavali
 was driving the tractor at the relevant time. The case

¶26

 made out in the claim petition is that the tractor
 driven by the Opponent no. 2 came from the opposite
 side in a very high speed. The Opponent no. 3 was
 following the tractor on his Yezdi motor cycle bearing
 No. MTC 7038. The opponent no. 3 for the purposes of
 overtaking the tractor and trolley took the Yezdi motor
 cycle on the wrong side of the road and dashed against
 left side bar of the motor cycle of the deceased.
 According to the case of the claimants as a result of
 the dash given by the opponent no. 3 to the side bar
 of the motor cycle of the deceased, the deceased and
 the pillion rider were thrown in the middle portion of
 the road. Opponent no. 2 who was driving the tractor
 could not control the tractor and deceased was run over
 by the tractor or the trolley attached to it.
 According to the case of the claimants though they were
 entitled to compensation of Rs.4,85,828.67, they had
 restricted the claim to Rs.1,00,000/- as they were not
 in position to pay full Court fees.

¶28

 statement contending that the tractor and the trolley
 were not at all involved in the accident and it was the
 motor cycle driven by opponent no. 3 which gave a dash
 to the motor cycle of the deceased. The opponent nos.
 3 and 5 filed written statement contending that the
 deceased applied brakes all of a sudden when he
 realised that it was difficult to take his motor cycle
 through a small space between the tractor and motor

¶30

 cycle of opponent no. 3. It is contended that due to
 sudden application of brakes when the motor cycle was
 at a high speed, the deceased and pillion rider were
 thrown away from the motor cycle and the deceased came
 under the rear wheel of the tractor which was at the
 relevant time being driven in excessive speed.

¶32

 impugned Judgment and Award held that the accident
 occurred due to rash and negligent driving of the motor
 cycle on the part of opponent no. 3. The learned
 Member held that allegations of negligence against the
 driver of tractor were not established. The learned
 Member held that the motor cycle driven by the Opponent
 no. 3 was not validly insured with the New India
 Assurance Company at the relevant time. The learned
 Member proceeded to award compensation of Rs.1.00 Lac
 to the claimants together with interest thereon at the
 rate of 12% per annum from the date of the accident and
 the compensation was made payable only by the Opponent
 no.3.

¶33

 4. First Appeal No. 1009 of 1989 has been
 preferred by the original claimants. The Appeal is
 preferred for seeking enhancement in the compensation.
 The learned counsel appearing for the claimants
 submitted that the claim of the claimants in the claim
 petition was of Rs.4,85,828.67. He submitted that the
 claim was required to be restricted to Rs.1,00,000/- as

¶35

 the claimants were not in a position to pay requisite
 Court fees. The learned counsel appearing for the
 claimants placed reliance on a judgment of a Division
 Bench of this Court in the case of Municipal
 Corporation of Greater Bombay and another v/s Kisan
 Gangaram Hire and others (1987 ACJ page 311). He
 submitted that the Tribunal has noticed that the
 claimants were entitled to a higher amount. He
 submitted that from the evidence on record it is clear
 that the claimants were entitled to an amount by way of
 just compensation which is much more than Rs.1.00 Lac.
 He submitted that the Tribunal has made reduction of
 Insurance amount and ex-gratia payment which could not
 have been made.

¶36

 5. First Appeal No. 589 of 1990 has been
 preferred by the original opponent no. 3 Pratap
 Bhagwan Pardeshi who is the owner of the motor cycle
 No. MTC 7033. The learned counsel appearing for the
 said appellant relied upon the application for
 additional evidence which has been granted by this
 Court and submitted that on the date of the accident,
 the motor cycle of the opponent no. 3 was validly
 insured with the Respondent no. 9 in the Appeal i.e.
 The New India Assurance Company Limited (Original
 Opponent no. 6). She submitted that the accident
 occurred due to rash and negligent driving on the part
 of the driver of the tractor and in fact the deceased
 was crushed under the rear wheel of the said tractor.

¶38

 By pointing out the evidence on record, she stated that
 the Opponent no. 3 is not at all involved in the
 accident. She pointed out that even assuming without
 admitting that the Opponent no. 3 was liable to pay
 compensation, as the documents which are annexed to
 Civil Appeal No. 2132 of 2006 show that on the date of
 the accident, the motor cycle was validly insured with
 the Opponent no. 6 Insurance Company, the said Company
 is liable to satisfy the award which is made against
 the Opponent no. 3. She submitted that the
 compensation awarded to the claimants is exorbitant.

¶39

 6. The learned counsel appearing for the claimants
 supported the appellant in First Appeal No. 589 of
 1990 only to the extent that the New India Assurance
 Co. Ltd. ought to have been held liable to pay
 compensation to the claimants. The learned counsel
 submitted that whether the Opponent no. 3 or the
 driver of the tractor are responsible for accident, the
 claimants are entitled to enhancement in compensation.
 He submitted that in case the driver of the tractor is
 held responsible, the compensation will be payable by
 the insurer of the tractor.

¶41

 of the tractor submitted that there is no evidence on
 record to show the involvement of the tractor in the
 accident and therefore the award made by the Tribunal
 is legal and proper and no interference is required.

¶43

 8. The first question to be decided is regarding
 issue of negligence. For deciding the said question, I
 will have to refer the evidence led by the parties. It
 is not in dispute that the deceased was plying his own
 motor cycle at the time of accident. He was
 approaching towards the site of his work from his house
 on the fateful day. The claimant examined Smt. Maya
 Devi, the widow of deceased. She is not an eye witness
 and therefore for the purposes of deciding the question
 of negligence, her evidence is not material. Shri.
 Pratapram Dhondiram Gavali who is the Opponent no. 2
 was examined before the Tribunal. On the fateful day,
 he was driving the tractor to which a trolley was

¶44

 attached. He stated that he was driving the tractor
 and his father i.e. original Opponent no.1 was sitting
 by his side. He stated that the tractor was moving in
 a slow speed as the trailor was fully loaded with
 onions. He stated that one motor cycle came from
 behind the tractor and overtook the tractor. He stated
 that after the said motor cycle went 20 to 25 feet
 ahead of the tractor, it met with an accident with
 another motor cycle. He stated that when he reached
 the spot of accident his father gave drinking water to

¶46

 stated that there was another tractor which was
 following his tractor. As his tractor was loaded with
 onions, he could not take the injured to the Hospital
 and therefore his father used the other tractor which

¶48

 was following his tractor for taking the deceased to
 the Hospital. He stated that the motor cycle which was
 coming from front side and the motor cycle which
 overtook the tractor collided with each other. He
 denied that the deceased-Balani was thrown on his
 tractor or that deceased came under the wheel of his
 tractor. He stated that when Balani fell down on the
 road as a result of the impact of the accident, the
 tractor was at a distance of 25 feet away from the spot
 of the accident. In the cross examination, he stated
 that at the relevant time the speed of the tractor was
 around 20 to 25 miles per hour. He stated that the
 motor cycle of opponent no. 3 which overtook the
 tractor was being driven in a very high speed. He
 denied that at the time of impact, the tractor was only
 at a distance of 5 to 6 feet from the place of impact.
 He denied that as a result of impact the
 deceased-Balani was thrown at some distance. The
 attention of the said witness was invited to a portion
 marked "A" of his statement recorded by the Police in
 which he had stated that the deceased was thrown away
 as a result of impact of accident and he fell near
 right side of the wheel. He stated that he had not
 made such statement before the Police. He denied the
 suggestion that he alongwith his father took
 deceased-Balani away from the wheel of the tractor.

¶51

 purchased Yezdi motor cycle bearing No. MTC 7033 from
 opponent no. 5 Shankarlal Thakkar. He stated that the
 vehicle was not transferred in his name in the record
 of the RTO and subsequently Opponent no. 5 sold the
 vehicle with his consent to a third person whose name
 was entered in the record of the R.T.O. He stated that
 at the time of accident he was coming from Niphad side
 and was proceeding towards his village. He stated that
 a tractor and trolley were going ahead of him. He
 stated that he overtook the tractor. He stated that
 there is a kaccha road which branches off from Niphad-
 Pimpalgaon Baswant road towards his village. He stated
 that after overtaking the tractor, he took a turn and
 was proceeding towards his village. When he was at a
 distance of 25 to 30 feet from the main road, he heard
 a loud noise. He stopped the motor cycle and walked
 down to the spot of the accident. He stated that he
 saw a motor cycle at the spot of the accident and one
 man was under the rear wheel of the trolley attached to
 the tractor. He stated that as per his direction, the
 driver of the tractor took the tractor to the back
 side, so that the man who had come under the wheel
 could be taken out. He stated that from a nearby tap
 he brought water and the original Opponent no. 1

¶52

 Dhondiram put some water in the mouth of injured
 person. He stated that he identified one Mr. Balani,
 injured who was an employee with M.S.E.B. He stated
 that he stopped the tractor which was coming from the
 side of Niphad and Shri Balani and other injured Shri

¶54

 Bapat were taken by the said tractor to Government
 Dispensary at Pimpalgaon. He stated that he visited
 the dispensary by his motor cycle. He stated that
 after taking permission of the Doctor who was treating
 Shri Balani, he went away. He stated that he was
 prosecuted by the Police, but the prosecution ended in
 his acquittal. In the cross examination, he stated
 that he was not aware whether his motor cycle was
 insured or not on the date of accident. He was
 confronted in his cross examination by showing a
 portion marked "A" of Paragraph no. 2 of his written
 statement. He stated that the details of the accident
 mentioned in the marked portion were not correct. His
 attention was invited to certain omissions in his
 written statement during the course of his further
 cross examination. In the cross examination he denied
 that his motor cycle dashed against the motor cycle of
 Balani after he overtook the tractor. These are the
 only two material witnesses for the purposes of
 deciding the issue of negligence.

¶55

 10) For the purposes of appreciating the stand
 taken by the said witnesses in the deposition, it will
 be necessary to refer to the pleadings of the said
 witnesses. In the written statement of Opponent no. 3
 Shri Pratap Pardeshi and the Opponent no. 5 Shri
 Shankar Thakkar, it is stated that the Opponent no. 3
 was plying his motor cycle which was behind the
 tractor. The said motor cycle was not noticed by

¶57

 deceased-Balani. When the Opponent no. 3 Pratap tried
 to overtake the tractor, the deceased-Balani attempted
 to take his motor cycle in between the tractor and the
 motor cycle of Opponent no. 3. The deceased Balani
 suddenly applied brakes and therefore he alongwith Shri
 Bapat were thrown away from the motor cycle. He has
 further stated that the Opponent no. 2 did not stop
 the tractor and the tractor speeded away towards
 Pimpalgaon. He stated that he alongwith other persons
 lifted deceased Balani and gave him drinking water.

¶58

 11} In his deposition the Opponent no. 3 has come
 out with a completely different version. The case made
 out by the Opponent no. 3 is totally inconsistent with
 his pleadings in the written statement. He tried to
 suggest that he overtook the tractor and took a turn
 towards road leading to his village when he heard the
 noise of the accident and came to the spot after
 stopping his motor cycle. In the deposition, he has
 stated that the tractor which was driven by the
 Opponent no. 2 speeded away towards Pimpalgaon. On
 the contrary in the examination- in-chief itself he
 stated that the tractor was standing after the accident
 and in fact deceased- Balani had come under the wheel
 of the tractor. He stated that deceased Opponent no.
 1, Dhondiram gave water to deceased-Balani which was
 brought by him. Thus the Opponent no. 3 has come out
 with the case which is totally inconsistent with the

¶60

 pleadings and his evidence does not inspire confidence.
 On the contrary the evidence of the Opponent no. 2
 Shri Pratap Dhondiram Gavali is consistent with the
 case made out by him in his written statement. The
 Opponent no. 2 and 3 have given conflicting versions
 of the manner in which the accident occurred. The
 question is which of the two versions deserves to be
 accepted.

¶61

 12) Normally the version which is more reliable has
 to be accepted. In a case there is word against word,
 the learned Member of the Tribunal has accepted the
 version of the original Opponent no. 2 and has held
 that the motor cycle of Opponent no. 3 was involved in
 the accident. Though the Opponent no. 3 was
 acquitted, the fact remains that he was prosecuted for
 commission of an offence under Section 304-A of Indian
 Penal Code. The acquittal in criminal prosecution will
 have no bearing in so far as the decision in accident
 claim is concerned. The learned Member of the Tribunal
 referred to the alleged Dying Declaration of
 deceased-Balani on the basis of which order of

¶62

 acquittal was passed. It is observed by the Tribunal
 that the said Dying Declaration was not proved. The
 Opponent no. 3 has made out a case in his deposition
 which is completely inconsistent with the averments in
 his written statement. As against this, the case made
 out by the Opponent no. 2 is consistent with his
 pleadings. Therefore no fault can be found with the

¶64

 finding recorded by the Tribunal that accident occurred
 as the Opponent no. 3 was driving his motor cycle in a
 rash and negligent manner. The finding of the Tribunal
 that the tractor was not involved in the accident also
 appears to be correct.

¶65

 13) In First Appeal No. 1009 of 1989 prayer is for
 grant of enhancement of compensation. The widow of the
 deceased stated in the witness box that at the time of
 death his age was 38 years and was drawing salary of
 Rs.1430/- per month from his employer- M.S.E.B. The
 claimants examined one Mr. Bhikchand Karbhari Bagul
 who was working as a Head Clerk in the office of
 M.S.E.B. He stated that the in April 1981 the basic
 salary of deceased was Rs.1135/-, Conveyance Allowance
 of Rs.200/- and the Dearness Allowance Rs.400/- to
 450/- per month. The said witness has deposed about
 the possibility of deceased being promoted to the post
 of Deputy Executive Engineer. However, he was unable
 to give Pay Scale admissible to the said post. He has
 also not stated that within a particular time the
 deceased was likely to be promoted. Thus the monthly
 income of the deceased can be taken to Rs.1800/- out of
 which 1/3rd amount is to be deducted on account of
 personal expenditure. Thus the total income comes to
 Rs.1,200. Hence multiplicand will be 1200 x 12 =
 Rs.14,400/-. Considering the fact that the age of the
 deceased was 38 years at the time of death multiplier
 of 12 deserves to be applied in view of a recent

¶67

 decision of the Apex Court. Thus the total
 compensation comes to Rs.1,72,800/- and a sum of
 Rs.10,000/- will have to be added by way of loss of
 consortium and the funeral expenses etc. Thus total
 compensation payable comes to Rs.1,82,800. The
 Tribunal has observed that the claimants have received
 insurance amount of Rs.31,000/-and ex-gratia payment of
 Rs.30,000/-. It is stated that claimants have also
 received Rs.4321/- by way of medical reimbursement on
 account of expenditure incurred on the medical
 treatment of the deceased till his death. It is
 obvious that amount of insurance money received by the
 claimants could not have been deducted from the
 compensation. However, ex-gratia payment will have to
 be deducted from the compensation amount along with the
 amount received towards medical reimbursement. Thus a
 sum of Rs.34,000/- will have to be deducted. The total
 compensation payable comes to Rs.1,48,800/-.

¶68

 14) Now the question which is to be decided whether
 the claimants are entitled to enhancement in
 compensation especially when they had restricted their
 claim before the Tribunal to Rs.1.00 Lac. A reliance
 is placed on the decision of Division Bench in the case
 Municipal Corporation of Greater Bombay (supra). In
 Paragraph 11 of the said decision, the Division Bench
 has held that the Tribunal constituted under the Motor
 Vehicles Act, 1939 has power to award compensation in
 excess of that which is claimed in the application.

¶70

 The Division Bench however laid down procedure which is
 to be followed before granting compensation in excess
 of the claim made. In paragraph 11 of the said
 decision, the Division Bench has held that :

¶71

 "11. The only question that requires to be
 considered is of the procedure that should be
 followed by the Tribunal before awarding higher
 compensation. We are of the view that in all
 such cases a proper notice or intimation should
 be given to the opposite party so that the
 opposite party has an opportunity to contest
 the claim even by leading evidence, if
 necessary. Ordinarily the Tribunal should take
 a written application from the claimant. This
 application need not necessarily be in the form
 of an amendment to the original application.

¶72

 Since as stated earlier the amount of
 compensation claimed or the specific heading
 under which it is claimed is no more than in
 the nature of the particulars of the claim, a
 variation in the same does not change the cause
 of action, which is the accident. It only
 furnishes additional material for assessing the
 claim. The additional claim should as far as
 possible be taken in writing which should also
 indicate the reasons why the additional claim
 is made. Where it is not possible to take the
 additional claim in writing the reasons for the

¶74

 same should be recorded. A copy of such
 written application should be served on the
 opposite party to give it an adequate notice of
 the excess amount claimed and to contest it, if
 it so desires. Where the application is not
 taken in writing, the Tribunal should make a
 note of it in its diary and give notice of the
 claim similarly to the other side."

¶75

 15) In the present case, there is a specific
 assertion made in the claim petition filed by the
 claimants that in fact they are entitled to
 compensation of Rs.4,85,828. It is, however, stated
 that due to inability on the part of the claimants to
 pay Court fees, they have restricted the claim Rs.1.00
 Lac. First Appeal No. 1009 of 1989 was admitted on
 18th January, 1990. In the Memorandum of Appeal a
 specific claim has been made for enhancement of the
 compensation and the claim for compensation made in the
 appeal is Rs.4,80,000/-. Thus adequate notice has been
 given to the respondents that the claimants are
 claiming higher amount. It is obvious that copies of
 the Memorandum of appeals are served to all concerned
 respondents and they are given sufficient notice of the
 fact that the claimants desire to claim additional
 compensation on the basis of evidence which is already
 recorded. Thus in my view the claimants are entitled
 to claim enhanced compensation and the total amount of
 Rs.1,48,000/- will have to be awarded. The claimants

¶77

 will have to pay deficit Court fees on Claim Petition.
 In its recent decision, the Apex Court has held that in
 a claim under Motor Vehicles Act, 1988 interest at the
 rate of 7.5% will have to be awarded. Hence rate of
 interest will be 7.5% per annum instead of 12% per
 annum from the date of Claim Petition.

¶78

 16) Now the other question remains to be decided is
 whether the motor cycle of the Opponent no. 3 was
 validly insured on the date of the accident. In
 paragraph No. 2 of the judgment, the learned Member of
 the Tribunal has observed that an admission is given
 by the learned Advocates appearing for opponent nos. 3
 and 5 below the application Exhibit 120 that the motor
 cycle owned by the Opponent no. 3 was not insured on
 the date of accident. It will be necessary to refer to
 the documents at Exhibit 120. The said document is a
 notice to produce documents issued by the Advocate
 appearing for Opponent no. 6 calling upon the Opponent
 no. 3 and 5 to produce the Insurance Policy issued by
 Opponent no. 6 bearing no. 4125050 valid from 18th
 December 1980 to 17th December, 1981. It appears that
 Shri. R.L. Wagh, Advocate was appearing for the
 Opponent No. 3 and 5. On the notice at Exhibit 120
 there are two endorsements; one endorsement is to the
 effect that the vehicle was not insured with any
 Insurance Company and there is a signature appearing
 below the endorsement. It is not clear as to who has
 signed the endorsement. The second endorsement made by

¶80

 Shri R.L. Wagh, Advocate appearing for Opponent Nos.
 3 and 5 is that he has received a copy of the Notice.
 The two signatures appear to be totally different.
 Therefore the observation made by the Tribunal in
 paragraph 2 of its Judgment does not appear to be
 correct. Apparently the endorsement that the vehicle
 was not insured with any Insurance Company does not
 appear to have been made on behalf of the Opponent nos.
 3 and 5. Alongwith list at Exhibit 92, the claimant
 has produced a copy of report dated 29th July 1985
 issued by Regional Transport Office, Nasik. In the
 said report the Opponent no. 5 is shown as owner of
 the motor cycle in question and it is stated that the
 vehicle was insured with The New India Assurance
 Company Limited from 18th December, 1980 to 17th
 December 1981. The number of Policy mentioned in the
 said report is 4125050. In this connection, it will be
 necessary to refer the oral evidence on record. The
 Opponent no. 3 in his examination-in-chief has stated
 that he obtained delivery of the motor cycle from the
 Opponent no. 5, but the vehicle was not transferred in
 his name in the record of R.T.O. and subsequently the
 vehicle was transferred to a third party with his
 consent by Opponent no. 5. In the cross examination
 made by the Advocate appearing for Opponent no. 6, the
 opponent no. 3 stated that he was not aware whether
 the motor cycle was insured on the relevant date.

¶83

 2132 of 2006 was made by Opponent no. 3 in his Appeal
 No. 589 of 1990. The said application was for
 production of additional evidence. The application is
 for production of certificate of Insurance and Cover
 Note. The Policy number is reflected from the
 certificate of Insurance is 415520 and D.O. Code
 number and Certificate number is Y-421703. The Policy
 is in respect of the motor cycle No. MTC-7033. The
 policy is valid from 18th December 1980 to 17th
 December 1981 and it stands in the name of Opponent no.
 5. The Cover Note bearing No. B-055625 shows the
 vehicle number and make of the vehicle as Yezdi
 standing in the name of Opponent no. 5. The original
 Opponent no. 6 Insurance Company is the respondent no.
 9 in First Appeal no. 589 of 1990 and in Civil
 Application no. 2132 of 2006. Though the Notice of
 the said Appeal was duly served, none appeared for the
 said Insurance Company both in Appeal and Application.
 By order dated 8th June, 2006 the said application was
 allowed.

¶84

 18) The additional evidence which is produced on
 record shows that on the relevant date the motor cycle
 owned by Opponent no. 3 was insured with the New India
 Assurance Company. The Policy no. is 415520. The
 material which is produced by the Opponent no. 6
 before the Tribunal is as regards TC no. 4125050. On
 the record of R.T.O. the Opponent no. 5 was the owner
 of the motor cycle on the date of the accident and the

¶86

 policy stood in the name of Opponent no. 5. There is
 nothing on record to show that intimation of transfer
 was given by the Opponent no. 5 to the Insurance
 Company before the date of the accident. Therefore
 assuming that the motor cycle was transferred to
 Opponent no. 3, the Insurance Company will be liable
 to pay compensation in so far as third parties are
 concerned. On the relevant date, the statutory
 liability of the Insurance Company under The Motor
 Vehicles Act, 1939 was limited to Rs.50,000/- unless
 extra premium was paid by the insured. In this case
 there is no evidence on record to show that extra
 premium was paid. Therefore the Insurance Company will
 be liable to satisfy the award to the extent of
 Rs.50,000/- with interest thereon and proportionate
 costs.

¶93

 The Opponent no. 6 The New India
 Assurance Company Limited shall be
 liable to satisfy the Award made
 against the Opponent no. 3 to the
 extent of Rs.50,000/- together with
 proportionate interest and costs.

Vs

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Parties & counsel

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A compact analysis

Statutes considered

Coram

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