F. A.O. No. 1756 of 1992 1 In the High Court of Punjab & Haryana at Chandigarh Date of decision : 4.2.2010 1. F. A. O. No. 1756 of 1992 (O&M) Prem Chand ... Appellant vs Parkashi Devi and others .... Respondents 2. F. A. O. No. 1757 of 1992 (O&M) Prem Chand ... Appellant vs Mukhtiar Singh and others .... Respondents 3. F. A. O. No. 1758 of 1992 (O&M) Prem Chand ... Appellant vs Lachhman Singh and others .... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Ajay Pal Singh, Advocate, for the appellant. Mr. Inderjit Sharma, Advocate, for the insurance company. Rajesh Bindal J. This order shall dispose of aforementioned appeals as the same arise out of one accident. The facts are extracted from FAO No. 1756 of 1992. Appellant Prem Chand, who has been burdened with the liability to pay the entire amount of compensation on account of motor vehicle accident, is before this Court challenging the award dated 9.5.1991 passed by the learned Motor Accident Claims Tribunal, Karnal (hereinafter to be referred as “the Tribunal”). Brief facts of the case, as have been given in the award of the Tribunal, are that on 21.5.1989 Anguri Devi and Nirmala Devi were F. A.O. No. 1756 of 1992 2 coming behind Ramesh Chand, who was holding cycle. When they reached on a culvert near the park, G. T. Road, Gharaunda, a Mazda bearing No. PIB-2997, driven by Gurcharan Singh (respondent no. 8 herein), in a rash and negligent manner, came from the side of Panipat and hit them. Due to this, they all received injuries. Ramesh Chand succumbed to the injuries at the spot whereas Anguri Devi and Nirmala Devi breathed their last on the way to Civil Hospital, Karnal. FIR No. 164 of 1989 under Sections 279, 337, 304-A IPC was registered on the same day. Thereafter, the claimants (respondents no. 1 to 6 herein) filed claim petition. It was stated therein that the deceased Ramesh Chand was 25 years of age and his monthly income was Rs. 1,100/-. The claim was contested by driver Gurcharan Singh respondent no. 8 and M/s Jai Durga Ice Factory, respondent no. 9 herein, by filing joint written statement. The accident was admitted by them, however, they denied that the accident was caused due to the rash and negligent driving of the vehicle in question. It was also admitted therein that respondent no. 2 (respondent no. 8 herein) was owner of the offending vehicle. Prem Chand appellant, who was respondent no. 4 before the Tribunal, adopted the written statement filed by respondents no. 8 and 9. The stand of the respondent insurance company was that offending vehicle was insured in the name of M/s Jai Durga Ice Factory, Maur Mandi (Punjab) and M/s Gian Chand Prem Chand and company has nothing to do with the alleged insurance policy. It has also denied the factum of alleged accident. On the pleading of the parties, ten issues were framed and the issues relevant for the purpose of decision of the present set of appeals are as under:- 1. Whether the accident resulting into death of Ramesh Chand was caused due to rash and negligent driving of Mazda No. PIB-2997 by its driver respondent No. 1? OPP 2. If issue No. 1 is proved, to what amount of compensation the claimants are entitled and from whom ? OPP F. A.O. No. 1756 of 1992 3 The learned Tribunal considering the evidence led by the parties on issue no. 2 while determining as to on whom the liability to pay the compensation should be put, opined that the appellant being the transferee of the vehicle and the insurance company having not been informed about such transfer, would be liable to pay the compensation and the insurance company was absolved of its liability to indemnify the insured. It is against this finding of the learned Tribunal that the appellant is before this court. Learned counsel for the appellant submitted that the appellant in the present case is a partner of firm M/s Jai Durga Ice Factory, Mansa Road, Maur Mandi (hereinafter to be referred as “the firm”), who is the registered owner of the vehicle involved in the accident. The vehicle in question was never transferred by the firm in any other name. It is also not disputed that the vehicle was insured in the name of the aforesaid firm. It is merely that in the registration certificate the name of the appellant was also mentioned otherwise the vehicle was never transferred in the name of the appellant. The name was mentioned in the registration certificate for the reason that the appellant had collected the certificate from the office being the partner of the firm. The partnership firm has no legal entity and is always represented by its partners. The finding of the learned Tribunal that the vehicle in question was transferred is totally perverse and the same is not based on any documentary evidence. It is merely based on a line said by PW5 Dharam Singh Ahlmad working in the court where criminal case was pending, who on the basis of some documents in record stated that the vehicle in question had been transferred by the firm in the name of the appellant. In the present case the insurance company had not produced any record or the witness from the registering authority to substantiate its claim regarding the vehicle having been transferred in the name of the appellant. Further it was submitted that there was no question of transfer of the vehicle on the same date when it was registered as a new vehicle. Along with the appeal, an application under Order 41 Rule 27 read with Section 151 CPC, was also filed. With the application, copy of certificate of registration (Annexure A-1) and also a confirmation certificate (Annexure A-2) from the District Transport Officer, Bathinda, regarding the F. A.O. No. 1756 of 1992 4 ownership of the vehicle was attached. As per this certificate, the vehicle in question was still registered in the name of the firm when the certificate was issued on 18.11.1991. It was also certified that till date the vehicle in question was not transferred in any one else's name. It was further argued that there was no question of transfer of the vehicle on the same day when it was registered on 23.1.1989, which otherwise is also not possible. Considering the clinching evidence as against the oral evidence as relied upon by the learned Tribunal to record a finding against the appellant, the appeals filed by the appellant deserve to be accepted and the finding recorded by the learned Tribunal holding the appellant to be liable to pay compensation, deserves to be set aside. On the other hand, learned counsel for the respondent insurance company submitted that once PW5 Dharam Singh, Ahlmad working in the court and also PW6 Subhash Chander another Ahlamd had stated in their cross-examination about the transfer of the vehicle, the learned Tribunal has rightly placed reliance thereon as the statements were made on the basis of the record produced in the criminal case, arising out of the accident. Relying upon the statement of PW6 Subhash Chander, it was submitted that application for superdari was filed by Gian Chand claiming himself to the proprietor of the firm whereas the appellant is claiming himself to be the partner thereof, which shows that the vehicle was not registered in the name of the firm. The onus to prove the ownership of the vehicle was on the appellant or the firm and they having failed to discharge the same, the appellant was rightly burdened with the liability to pay the compensation. Further it was not disputed that there is no other violation of the terms of the policy except what is referred to above to absolve the Insurance company of its liability to indemnify the insured. Heard learned counsel for the parties and perused the relevant referred record. A perusal of the award of the learned Tribunal shows that the Tribunal merely relied upon the cross-examination of PW5 Dharam Singh, Ahlmad working in the court, who stated that the vehicle in question was transferred on 23.1.1989 by the original owner, namely, M/s Jai Durga Ice Factory, Mansa Road, Maur Mandi, in the name of the appellant. As the F. A.O. No. 1756 of 1992 5 accident in the present case had taken place on 21.5.1989 and the intimation regarding the transfer of the vehicle was not given to the insurance company and the cover note having not been transferred in the name of the transferee of the vehicle, the insurance company was not liable. It would be relevant to refer to the statement of PW5 Dharam Singh which has been relied upon by the learned Tribunal to record a finding against the appellant, which is as under:- “.... The RC of vehicle No. PIB 2997 is on the file and the same is valid up to 19-1-90 and same is in the name of Prem Chand after transfer and earlier it was in the name of Jai Durga Ice Factory. The transfer of ownership took place on 23.1.89.” It would be out of place if not referred to here, the cross- examination of PW6 Subhash Chander as well, who stated as under:- “The above R. C. of Mazda four wheeler is in criminal file of said case brought today by me. It is in the name of Jai Durga Ice and General Mills Mor Mandi Bathinda.” A perusal of the cross-examination of PW6 shows that as per the registration certificate of the vehicle involved in the accident, which was lying deposited in the court, the firm namely M/s Jai Durga Ice Factory, Mansa Road, Maur Mandi was the registered owner of the vehicle. It is only that in the cross-examination of PW5 that it was stated by him that the vehicle in question was transferred in the name of the appellant otherwise there was no documentary evidence produced by the insurance company to substantiate this plea. No witness or record was produced from the registering authority to prove from the record any document about the transfer of the vehicle by the firm in the name of the appellant. Along with the appeal, the appellant had filed an application under Order 41 Rule 27 CPC seeking permission to lead additional evidence. With the application, a copy of the registration certificate and also an application filed by Gian Chand addressed to the District Transport Officer, Bathinda, seeking confirmation regarding ownership of the vehicle and the certificate granted thereon was annexed. While admitting the appeal, F. A.O. No. 1756 of 1992 6 the application was directed to be heard along with the main appeal. Till date the insurance company, with whom the primarily dispute is, has not filed any reply disputing the contents of the application or the documents annexed therewith. Meaning thereby that the document, Annexure A-2, which has been placed on record and is in the form of certificate from the District Transport Officer, Bathinda, issued on 18.11.1991 deserves to be considered for the purpose of decision of the present appeal. The contents of the certificate issued by the District Transport Officer, Bathinda, are extracted as under:- “It is hereby certified that the owner of vehicle No. PIB-2997 is M/s Jai Durga Ice and General Mills, Maur Mandi. It is not transferred in any other's name. Sd/- District Transport Officer, Bathinda 18.11.1991” A perusal of the document, Annexure A-2, shows that the firm through Gian Chand had applied to the District Transport Officer, Bathinda, regarding certification of the ownership of the vehicle bearing No. PIB- 2997, which was involved in the accident. It was certified by the District Transport officer, Bathinda, on 18.11.1991 that owner of the vehicle was M/s Jai Durga Ice and General Mills, Maur Mandi and the vehicle was not transferred in any other name. The vehicle in the present case was registered for the first time on 23.1.1989 and the accident occurred on 21.5.1989. The aforesaid certificate was issued on 18.11.1991. Meaning thereby that the vehicle involved in the accident was in the ownership of M/s Jai Durga Ice and General Mills, Maur Mandi, when the accident took place. It is not disputed in the present case that the insurance policy had been issued in the name of the aforesaid firm and there is no violation of any other conditions of the policy on the basis of which the insurance company could plead to be absolved of its liability to indemnify the insured. Once the aforesaid document is available on record as against mere oral statement by the Ahlmad of the court regarding the ownership of the vehicle, in my opinion, it is the documentary evidence in the form of certificate from the authority where the vehicle was registered which should be relied upon and not mere F. A.O. No. 1756 of 1992 7 oral statement of the Ahlmad of the Court, who could not state anything about the transfer of the vehicle with authority. For the reasons mentioned above, the findings of the learned Tribunal to the effect that ownership of the vehicle stood transferred in the name of the appellant and on account of that the insurance company was not liable to indemnify the insured, in whose name the policy had been issued, on the ground that intimation regarding transfer of the vehicle was not furnished to the insurance company, and consequently the appellant as well as the driver of the vehicle were liable to pay the compensation, are set aside. The insurance company is held liable to satisfy the award of the learned Tribunal. As is noticed in the order passed on 1.2.1993, the recovery of compensation beyond 50% was stayed. Meaning thereby that the respondents/claimants have not been disbursed the entire amount of compensation. The same be now disbursed without any delay. As the consequence of the order passed where the Insurance company has been held to be liable to indemnify the insured and initially the Tribunal having held the appellant liable for payment of compensation and he, in fact, having paid 50% to the claimants, the appellant is entitled to reimbursement of the same from the Insurance company. The effect of the order passed by this court is that the Insurance company was liable to pay the compensation from day one. However, still in view of the award of the Tribunal, the appellant had to pay the compensation which denied him rightful use of the money during this period. For that also, he deserves to be compensated. The appellant shall be entitled to reimbursement of the compensation already paid by him to the claimants from the Insurance company along with interest @ 6% per annum from the date of payment to the claimants till the amount is reimbursed. The same can be enforced by way of execution proceedings. The appeals are disposed of accordingly. 4.2.2010 (Rajesh Bindal) vs. Judge