D.L.MEHTA, J. - (1.) ALL these three appeals arise against the award dated July 31, 1985, passed by the Motor Accidents Claims Tribunal, Jaipur.
(2.) AVINASH , a young child of 7 years, was travelling in an autorickshaw No. 5442. Tempo No. RRL 6097 was coming from the opposite, direction. The autorickshaw and tempo collided and Avinash sustained multiple acerated 'wounds on his face and skull. He was operated on and had to remain in the hospital for a fortnight and, thereafter he was advised rest and treatment at his residence. He remained in bed for a period of 1 1/2 months thereafter at his house. It will not be out of place here to mention that New India Insurance Company is the insurer of both the vehicles, i.e., the tempo and the rickshaw. In Appeal No. 293 of 1985 (New India Insurance Company v. Avinash), it was submitted by the appellant that the liability of the insurance company cannot exceed Rs. 10,000. The maximum liability of the insurance company has been fixed under Section 95(2)(b)(ii) as Rs. 10,000 in the case of an autorickshaw. This appeal succeeds and it is hereby directed that the liability in the case of autorickshaw cannot exceed Rs. 10,000 as far as the insurance company is concerned and the rest of the amount can be recovered from the owner and driver of the autorickshaw. It will not make any difference as tempo RRL 6097 was also insured with the New India Insurance Company. In the case of a tempo, the liability has been limited only up to Rs. 50,000. Naturally, the liability can be fixed up to Rs. 50,000 under the insurance policy of the tempo. It was submitted by Mr. Bhargava, counsel for the insurance company, that the vehicle was sold by the owner of the tempo to one Abdul Aziz. Abdul Aziz has not been produced in the witness box by any of the parties. The burden lies on the insurance company to prove that the tempo has been sold. Apart from that, a person who is the victim of an accident cannot know about the underhand transactions, if any, effected. The registered owner is the owner of the vehicle for all practical purposes. It is the duty of the registered owner to inform the registering authority within a period of 14 days about the transfer, if any, effected. The mandate of the law cannot be flouted and the registered owner cannot escape the liability on the ground that he has transferred the vehicle to a third party. Registration of a vehicle is necessary under the Motor Vehicles Act so that the victims of the accident can know who is the real owner of the vehicle. Apart from that, if there is a violation of Section 42 or Section 123 of the Motor Vehicles Act, the owner is responsible and can be punished under Section 42 read with Section 123 of the Motor Vehicles Act. Registration is also necessary for the purpose of implementation of law including the criminal law. Any party can take the defence if allowed to do so by saying that he has transferred the vehicle. This type of escaping the liability under the criminal law as well as the civil law cannot be allowed. Though, in the instant case, I feel that the appellants have failed to prove that there was any transfer in favour of Abdul Aziz, assuming for the time being that there was a transfer in favour of Abdul Aziz, even then the liability of the registered owner does not cease. In such cases, the registered owner as well as the real owner both will be liable and they will be responsible for the payment of compensation to the plaintiff. In the case of Madineni Kondaiah v. Yaseen Fatima [1986] 60 Comp Cas 762 (AP) [FB]; [1986] ACJ 1, the High Court of Judicature of the State of Andhra Pradesh has held that the insurance company cannot raise the defence that the policy lapses because of the sale of the vehicle I it cannot contend that the accident took place due to the negligence on the part of the transferee and the insurance company is not liable. It cannot also contend that the transferor -insurance company is not responsible to redeem the compensation payable by the transferee because such defences are not contemplated under Section 96(2) of the Act. Section 96(2) reads as under : ' No sum shall be payable by an insurer under Sub -section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given, the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely : - - (a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident, the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or (b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely : - - (i) a condition excluding the use of the vehicle - (a) for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle or (d) without a side car being attached, where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification ; or (iii) a condition excluding liability for injury caused or contributed by conditions of war, civil war, riot or civil commotion, or (c) that the policy is void on the ground that it was obtained by the non -disclosure of a material fact or by a representation of fact which was false in some material particular.'
(3.) THE liability of the insurance company is there throughout unless the conditions laid down under Section 96(2) are fulfilled. The case of transfer is not covered by the provisions of Section 96(2) and, as such, even in the case of transfer, the liability of the insurance company exists. There is an obligation to register the vehicle for controlling and regulating the movement of the vehicle by the authorities under the Act and they do not stand in the way of passing the title to the purchaser. It is true that the provisions enjoined on both the transferor and the transferee to report the factum of transfer of the vehicle to the registering authority. In the case of a transfer, the transferee whose name has not been registered as well as the registered owner are both jointly and severally responsible for the payment of compensation in addition to the liability of the driver and the insurance company.;