MITHAL, J. - (1.) THE appellant insurance company has filed this F.A.F.O. being aggrieved by the decision of the Motor Accidents Claims Tribunal awarding compensation of Rs. 10,000 against the driver and the owner of the vehicle as also the insurance company. The amount so awarded has been made payable by the insurance company in spite of the fact that the insurance company had contended that the vehicle in question was not insured with it on the relevant date.
(2.) ACCORDING to the claimant, the deceased was going to Muradnagar on October 7, 1967, at about 8.30 -p.m in a buggi when it was struck by truck No, UPS 7441 which was coming from the opposite direction. As a result of the accident, Ram Chander died instantaneously. A claim petition under Section 110A was, therefore, moved before the Claims Tribunal asking for a sum of Rs. 25,000 by way of compensation. In the claim petition, Mahboob Singh, owner of the truck, and Arjun Singh, its driver at the relevant time, were also impleaded as respondents Nos. 1 and 2. However, in spite of service through publication, they did not put in appearance in the court to contest the petition. The insurance company, the appellant alone contested the claim petition and it was contended by it that the truck in question was insured with it earlier but its period had expired on October 6, 1967, i.e., a day before the date of the accident. It was further pleaded that since the truck was not insured with the appellant on the relevant date, it was not liable for the compensation to the claimant:. At the time of framing of issues, a statement of the counsel for the appellant was recorded in which it was disclosed that the same truck was again insured by the appellant's insurance company on November 3, 1976, and the period of the earlier contract of insurance had expired on October 6, 1967. However, no document pertaining to the subsequent insurance was filed on record at that time. The case was taken up in July, 1972, and the arguments were concluded on July 27, 1972. After this date and before the date of the judgment an effort was made on behalf of the insurance company to file the documents pertaining to the subsequent contract of insurance which took place on November 3, 1967, but the application was dismissed by the Claims Tribunal on the ground that it was belated and in spite of the fact that the insurance company was in possession of the documents and was aware about the claim petition. The court after rejecting the application for additional evidence proceeded to decide the claim petition. After holding the owner of the truck and its driver responsible for the payment of compensation, the Tribunal further came to the conclusion that it was the duty of the insurance company to have filed the subsequent policy on record in order to show that the truck in question was not covered by any insurance policy with the appellant on the relevant date. Since the subsequent insurance policy had not been placed on record, the court presumed that the vehicle must have been insured with the appellant and on that basis it has decreed that claim against the insurance company also. It is under these circumstances that the present F.A.F.O. has been filed by the insurance company against the award given by the Claims Tribunal. The learned counsel appearing for the insurance company has submitted that there was no privity of contract between the owner of the vehicle and the appellant and in the absence of the same, no liability can be placed on the shoulders of the appellant to pay compensation to the claimants. According to him, liability of the insurance company to pay any compensation awarded to the claimants on a petition under Section 110A of the M. V. Act, 1939, arises only when there is a subsisting contract of insurance between the owner of the vehicle and the insurance company. The nature of liability of the insurance company is that of an indemnifier and it has a right to recover the amount so paid from him after satisfying the award of the Claims Tribunal on behalf of tha owner. He further submitted that the fact that this truck was insured with the appellant prior tothe date of accident and that it was subsequently also insured with the appellant's company cannot, without anything more, fasten the liability on the appellant for any accident which took place between the said two dates. Since the earlier contract of insurance had expired on October 6, 1967, and the new contract of insurance had not taken place until. November 3, 1967, the appellant was not liable to pay any compensation, There appears to be some force in this contention.
(3.) SECTION 94 of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act'), ordains that no motor vehicle can be used in a public place unless the same had been insured as required under the Act. Section 95 provides the conditions which must necessarily be included in the contract of insurance. Sub -clause (4) of Section 95 provides that a valid policy under this Act must necessarily be evidenced by a certificate of insurance in the prescribed form and should contain the necessary particulars. In order to extend the liability of the insurance company and with a view to facilitate the day -to -day working, Sub -clause (4A) has been introduced which lays down that the insurance company can issue a cover note to the insured which must be followed by a policy of insurance and in case it is not so followed by a policy of insurance, then this fact must be brought to the notice of the registering authorities within seven days of the expiry of the period fixed in the cover note. Sub -clause (5) of Section 95 provides that the insurer would be liable to indemnify the insured in respect of the liability covered by the policy of insurance.;