B.D.AGRAWAL,J. - (1.) THIS is an appeal under Section 110-D of the Motor Vehicles Act, directed against the award of the Motor Accident Claims Tribunal (Vth Additional District Judge) Moradabad, dated 16th December, 1977.
(2.) THE accident, giving rise to the award, occurred on 30th November, 1972, around 1 p.m. Smt. Chandra Prabha Dhama aged about 34 was on way back home from educational institution where she was employed as teacher on a salary of Rs. 359/- per month. Truck No. UPM 8208 dashed against the rickshaw on which Smt. Dhama was seated and as a result she fell down and sustained multiple fracture on the right side near the eye-brow. She succumbed to the injuries sustained. The claim was filed by her husband and the minor son (Respondent Nos. 1 and 2). Under the award the Tribunal has decreed a sum of Rs. 66,045/- as compensation in favour of the respondent No. 2 the minor son. No compensation has been given so far as the husband of the deceased is concerned on the footing that there was no monetary benefit to him from the earning of the deceased. It has been found that the accident took place due to rash and negligent driving of the truck by Mangal Singh respondent No. 3, who was the driver at the moment. Out of the compensation a sum of Rs. 50,000/- is to be borne by the appellant Insurance Company and the balance has been awarded against Mangal Singh aforesaid besides Mahendra Singh respondent No. 5 the owner of the truck. Aggrieved, the Insurance Company has preferred this appeal. Learned counsel for the appellant submitted that the truck in question had been transferred to Mahendra Singh-respondent No. 5 on 2nd November, 1972, that is to say prior to the accident, which took place on 30th November, 1972. There was insurance in favour of Roshan Lal Sethi-respondent No. 4, but there was no transfer thereof nor any insurance policy obtained by Mahendra Singh subsequent to 2nd November, 1972. On this account, it is urged, there could be no liability fastened against the appellant Insurance Company since when the accident took place the vehicle had ceased to belong to the insured. From the other side representing the respondent No. 5 it is argued that though the respondent had acquired the vehicle on hire purchase agreement entered into with M/s Instalment Company (P) Ltd. dated 2nd November, 1972, there was no registration in his name and the vehicle continued to be registered in the name of Roshan Lal Sethi. For this reason, according to the respondent's learned Counsel, the insurer cannot escape liability flowing as a result of the accident dated 30th November, 1972.
(3.) CONTENTION for the respondent further is that the appellant having not put in appearance before the Tribunal, the respondent has had no occasion to meet the issue, which is now raised in the course of hearing of the appeal. From the award, it would appear that the Tribunal has not considered this aspect of the matter. From the record, which I have perused, it is indicated that there was a document purporting to be certificate filed from the side of the respondent No. 5 on 15th May, 1975, along with list 49C and on the basis thereof alone the Tribunal has concluded that the liability of the appellant Insurance Company also arises. The certificate (paper 50C) from the Insurance Company is to the effect that the truck UPM 8208A/C Sri Roshan Lal Sethi, Seth Building, Station Road, Moradabad, was insured with the Hindustan General Insurance Society Limited against third party risk with effect from 5th April, 1972 to 4th April, 1973, under Policy No. TV 16125/M.B. This leaves unexplained, obviously, whether subsequent to the transfer of the vehicle made on 2nd November, 1972, there came to be insurance made by transfer thereof or otherwise in favour of Mahendra Singh the respondent No. 5. The Tribunal seems to have been under the impression that since the truck stood insured during the period of 5th April, 1972 to 4th April, 1973, that suffices for the purpose of fastening liability against the Insurance Company even though when the accident took place, the vehicle stood transferred in favour of the respondent No. 5 and was no long owned by Roshan Lal Sethi. This, it is urged for the appellant, does not reflect the correct position under the law. The respondent's counsel has drawn my attention to an affidavit tiled by Mahendra Singh before the Tribunal on 11th January, 1974; paragraph 5 whereof suggests that the truck was not registered in his name in the office of the Regional Transport Officer and it continued to be plied with the registration standing in the name of the transferor. 1 would not like to express opinion on merits at this stage so far as the legal implications arising on this account are concerned the reason being that before the law relevant can be applied, the factual state has to be clearly ascertained and made out. The Tribunal should, therefore, ascertain in the first place whether the truck had stood registered in the name of the respondent No. 5 (Mahendra Singh) prior to 30th November, 1972, and, if not, whether that may at all affect the liability against the Insurance Company and secondly the Tribunal has also to find whether subsequent to the transfer of the vehicle dated 2nd November, 1972, there was insurance of the vehicle by transfer thereof of otherwise in favour of Mahendra Singh and whether in the absence thereof the appellant Insurance Company can still be held liable for the accident which occurred on 30th November, 1972. It may not be doubted that nothing contained in Section 96(2) of the Motor Vehicles Act precludes the Insurance Company from disputing that there was insurance in favour of the respondent No. 5 with respect to the vehicle in question at the relevant time.;