kbp 1 772-98.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION FIRST APPEAL NO.772 OF 1998 Brun Mahagu Jha and ors. ..Appellants Vs. Peter Albert Gonsalves and others ..Respondents ......... Mr.C.M.Lokesh, for appellants. ......... CORAM : A.S.OKA, J.. DATE : 21st November, 2009. JUDGMENT : 1] Heard learned counsel for the appellants who are the original claimants The appellants filed a claim petition under Section 110A of the Motor Vehicles Act, 1939 claiming compensation on account of death of one Mahagu in an accident occurred on 23rd August, 1976. According to the case of the appellants, the second respondent was the owner of the offending vehicle at the relevant time and the said vehicle was insured with fourth respondent. The claim petition was partly allowed by the Tribunal by granting compensation of Rs.66,000/- together with interest thereon. However, the claim as against the fourth kbp 2 772-98.sxw respondent (insurer) came to be dismissed. This part of the Award has been challenged by way of this Appeal. 2] Learned counsel for the appellants pointed out that the only defence of the insurer was that though there was a policy of insurance, prior to the date of the accident, the insured had expired. He submitted that the Tribunal has committed an error by accepting the defence which was pleaded. He submitted that in view of the settled law, the insurance company could not have been exonerated. None appears for the respondent. 3] I have carefully considered the submissions. There is no dispute that the accident occurred on 23rd August, 1976. It will be necessary to consider the defence of the insurer in the written statement. Paragraphs 3 and 4 of the written statement reads thus:- "3. The insurer states that the Opposite Party Shri Suresh Damodar Samant of Goregaon (East), Bombay took the insurance policy from the insurer under Policy No.210/23/1/450 valid for on year from 31st October, 1975 to 30th September, 1976 for his Lambretta Scooter No.MRG-8649. 4. The insurer submits that they have come to know that the insurer Shri Suresh Damodar Samant i.e. Opposite party No.1 expired on or about 19th December, 1975." In the case of United India Insurance Co. Ltd. Vs.Santro Devi [(2009)1 SCC 558], the Apex Court observed thus: kbp 3 772-98.sxw “16. The provisions of compulsory insurance have been framed to advance a social object. It is in a way part of the social justice doctrine. When a certificate of insurance is issued, in law, the insurance company is bound to reimburse the owner. There cannot be any doubt whatsoever that a contract of insurance must fulfil the statutory requirements of formation of a valid contract but in case of a third-party risk, the question has to be considered from a different angle. 17. Section 146 provides for statutory insurance. An insurance is mandatorily required to be obtained by the person in charge of or in possession of the vehicle. There is no provision in the Motor Vehicles Act that unless the name(s) of the heirs of the owner of a vehicle is/are substituted on the certificate of insurance or in the certificate of registration in place of the original owner (since deceased), the motor vehicle cannot be allowed to be used in a public place. Thus, in a case where the owner of a motor vehicle has expired, although there does not exist any statutory interdict for the person in possession of the vehicle to ply the same on road; but there being a statutory injunction that the same cannot be plied unless a policy of insurance is obtained, we are of the opinion that the contract of insurance would be enforceable. It would be so in a case of this nature as for the purpose of renewal of insurance policy only the premium is to be paid. It is not in dispute that quantum of premium paid for renewal of the policy is in terms of the provisions of the Insurance Act, 1938.” kbp 4 772-98.sxw 4] Thus, the only defence pleaded by the insurer could not have been accepted. It will be necessary to consider the evidence of one Ganesh Umalkar, Senior Assistant of the fourth respondent insurer. In the examination-in-chief he stated that there was a policy issued in the name of second respondent Suresh Damodar Samant in respect of the scooter for the period from 31st October, 1995 to 30th October, 1996. He produced a copy of said policy on record. 5] The learned Member of the Tribunal came to the conclusion that on the day of accident, the scooter was standing in the name of the third respondent Shashikant Hari Mahajan in the record of Road Transport Office (R.T.O.) and second respondent was not shown as the registered owner of the scooter. The leaned Member of the Tribunal observed that there was some documentary evidence on record to connect the said Suresh with the scooter. It must be borne in mind that the widow of Suresh was examined as a witness. She produced certificate of insurance in the evidence. She pleaded ignorance about the scooter. In the cross-examination she stated that he was not aware whether the scooter was owned by her husband. In fact, she stated that her husband died while driving the same scooter. 6] In the circumstances, there was no reason for the Tribunal to exonerate the legal representatives of the second respondent and the insurer. Therefore, The impugned award deserves to be modified and I pass the following order:- kbp 5 772-98.sxw (a) The compensation fixed under the impugned award and the interest payable thereon with costs, is confirmed. However,the award is modified by directing that the opponent Nos.1, 2A to 2C and 4 (insurer) shall be jointly and severally liable under the said award to pay the compensation amount as directed. (b) Time of four months is granted to the fourth respondent - insurer to comply with the award. (c) The fourth respondent shall pay the costs of the appeal to the appellants. (d) Appeal is allowed in the above terms. (e) After the compensation amount is deposited in the tribunal, the said Tribunal shall pass an appropriate order regarding disbursement/withdrawal of the amount. ( A.S.OKA, J. )