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O.I.C. versus SMT. A. KHARE & OTHER

High Court of Judicature at Allahabad

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O.I.C. v. Smt. A. Khare & other - FIRST APPEAL FROM ORDER No. 1086 of 1988 [2007] RD-AH 6545 (10 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 3

First Appeal From Order No.1086  of   1988

Oriental Insurance Co. Ltd.                                         .................    appellant  

Vs.

Smt. Anju Khare & others                                          ...............  Respondents

Present:

(Hon'ble Mr. Justice Amitava Lala & Hon'ble Mr. Justice V.C. Misra)

Appearance:

     

For the Appellant:                   Sri. Parmatma Rai

For the  Respondents:        Sri. A.K.Dixit

Hon'ble Amitava Lala,J. By the consent of the parties, the appeal is heard on

the informal papers.

It has been argued on behalf of the Insurance Company-appellant that on the fateful day when the accident took place, the vehicle was transferred in favour of the transferee by way of a contract perpetually.  The accident took place on 14th July, 1986.  According to the Insurance Company, as per the statement of one junior clerk of R.T.O. Office sale letter dated 22nd June, 1986 contained initial and the sale deed date 30th June, 1986 contained full signature/s .  However, on examination of the witness i.e. purchaser it appears that he has not purchased the vehicle before the  fateful day.  He said that it was transferred  finally on 24th July, 1986.  According to us, in a matter of purchase of any goods, purchaser 's evidence is to be construed as best part of the evidence.  He is categorical in giving evidence that the seller wanted to sell the vehicle because of the reason that it was inauspicious to him.  Therefore, there is reason to believe when the seller and purchaser might have stated negotiation.  However, if any evidence is adduced to the effect that the vehicle was transferred even before the date of accident it will not change the position at all, since the final transaction took place only on 24th July, 1986 i.e. after the date of accident which took place on 14th July, 1986.  Learned counsel appearing for the claimant-respondents contended before this Court placing reliance on paragraph 13 of the decision in United India Insurance Company Ltd., Shimla Vs. Tilak Singh and others, reported in (2006 All. C.J. 1279).  which is as under,

"13. Thus, in our view, the situation in law which arises from the failure of the transferor to notify the insurer of the fact of transfer of ownership of the insured vehicle is no different whether under Section  103-A of the 1939 Act or under  Section 157 of the 1988 Act in so far as the liability towards a third party is concerned.  Thus, whether the old Act applies to the facts before us, or the new Act applies, as far as the deceased third party was concerned, the result would not be different.  Hence, the contention of the appellant on the second issue must fail, either way, making a decision on the first contention unnecessary, for deciding the second issue.  However, it may be necessary to decide which Act applies for deciding the third contention.  In our view, it is not the transfer of the vehicle but the accident which furnishes the cause of action for the application before the tribunal.  Undoubtedly, the accident took place after the 1988 Act had come into force.  Hence it is the 1988 Act which would govern the situation".  

According to us such part of the controversy is only academic in nature. The factum of failure of transferor to notify the fact of transfer to the insurer is not different either in the Motor  Vehicles Act, 1939 or in the Motor Vehicles Act, 1988 Act.  

The admitted position is that the transfer of the vehicle  took place after the date of accident.  Hence, we do not find any reason to interfere in the appeal  preferred by the Insurance Company.   The Insurance Company has every right to recover the amount from the owner, if it is  wrongly held responsible.  

Thus, the appeal stands dismissed.  Interim order in respect of any pending application the same is vacated.  No order is passed as to costs.

( Justice Amitava Lala )

       I agree

( Justice V.C. Misra )

April 10, 2007

pkc/3

             


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