Court No. - 26
Reserved on 17.07.2018 Delivered on 21.08.2018 Case :- FIRST APPEAL FROM ORDER No. - 3851 of 2012 Appellant :- H.D.F.C. Ergo Respondent :- Smt. Sapna Devi And Others Counsel for Appellant :- S.K. Mehrotra Counsel for Respondent :- Ankur Goel,Dr. Akhilesh Kumar,Raj Singh
Hon'ble Ajit Kumar,J.
1. Heard Sri S.K. Mehrotra, learned counsel for the appellant and Sri Ankur Goel, learned counsel for the respondents.
2. This appeal under Section 173 of Motor Vehicles Act, 1988 is directed against the award dated 24.07.2012 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No. 12, Agra in Motor Accident Claim Petition No. 769 of 2010 for a compensation of Rs. 4,36,500/- along with simple interest @ 6% per annum.
3. Briefly stating the facts are that on 29.08.2010 while deceased Sachin Kumar was riding Motorcycle No. U.P. 80 B.P. 5229 and was going to village Kakuwa along with native Ravi as pillion rider, that around 4.30 p.m. when motorcycle reached at Agra-Gwalior Road on Bhahai turning, an Eicher Tractor being driven quite rashly and negligently hit the motorcycle by coming on wrong side, resultantly Sachin suffered grievous fatal injuries and died on the spot and tractor driver ran away from the scene of incident. The claim petition was filed by Smt. Sapna Devi, young widow aged about 19 years, Smt. Ramdevi, mother of deceased and Km. Nitin, unmarried sister of the deceased aged about 18 years.
4. The claimants filed various documents like the certified copy of the insurance cover note (paper no. 11-C), first information report, spot inspection report, inquest report and post mortem report etc. The widowed wife Smt. Sapna Devi got examined as PW-1, whereas, one Dashrath as PW-2. The total claim was set up for Rs. 20 lacs along with 12% interest.
5. The insurance company refuted the claim set up by the claimants/ respondents out-rightly and set up a claim that the insurance cover submitted by the claimants and the insurance policy was fake one and was not issued by it and appears to have been prepared for the purposes of case. The Insurance Company accordingly filed copy of insurance policy as paper no. 29-C/1 and insurance cover note as 29-C/2, 29-C/3 as receipt of premium paid towards the insurance and the claim is accordingly of the insurance company that the insurance cover note which has been filed, is of the same number that was issued in favour of Toyota Fortuner Car in the name of Ashish Gautam as Ashish Gautam had been issued the premium receipt against the premium drawn in favour of the insurance company. The owner of the vehicle and the driver also produced paper no. 30-C/1 as original insurance cover note of the tractor in question.
6. After considering the oral testimonies of the witnesses of the rival parties and evaluating the evidence on record, the Tribunal came to conclude that the cover note which was submitted by the owner of the vehicle bearing no. 002300174211 paper no. 31-C/1 to be valid one and it further held that it did not appear to be forged one from its very look. It had been issued by one Brijesh, agent of the insurance company and in case if the Brijesh was not agent of insurance company, then insurance company must have lodged complaint or FIR against the forgery being committed by Brijesh as an alleged agent of insurance company but nothing was done. The Tribunal further recorded that the owner of vehicle had brought the vehicle to the HDFC Ergo General Insurance Company and it was inspected then and there, according to his testimony, the cover note was issued on spot itself. The Tribunal also recorded that registration could be done of a vehicle only after insurance is done by insurance company under the rules as per testimony of defence witness. The Tribunal held that even from the cross examination of respondent no. 1 conducted by the counsel of respondent no. 3, nothing intrinsic has come out so as to deduce something to hold that deposition had been falsely made by the owner of the vehicle. Further deliberating on the issue of the same number cover note having been issued to one Ashish Gautam in respect of a Toyota Fortuner Car on 12.08.2010, the Tribunal relied on the testimony of DW-2, the RTO official Sushma Agarwal in which she stated that papers for registration of Fortuner Car purchased by the owner of Diamond Carpet Sri Lalit Jain was presented on 06.08.2010 and the U.P. 80 BQ 6145 was issued on 12.08.2010. The Tribunal observed that this witness also stated that no registration was permissible without the vehicle being insured and then she admitted that Sri Lalit Jain had got the registration of the vehicle applied along with cover note of the insurance bearing no. 002300173450 of HDFC Ergo and this cover note is filed as paper no. 41-C/21 by DW-2. The Tribunal noted down it that interestingly the insurance company had virtually issued two cover notes for the same vehicle, one while registration done by its owner and also the owner of Diamond Carpet while on the second time in favour of Ashish Gautam after the transfer of vehicle. However, the Tribunal recorded that the documents which were produced before it, it is not traceable as to how Ashish Gautam became owner of the vehicle when there is no transfer of vehicle in the name of Ashish Gautam registered in the office of RTO, whereas, from the records of RTO it fully transpired that in 2011 the vehicle was transferred by its owner Lalit Jain in the name of Ashu Cheu and the vehicle continued to be recorded in the name of that Ashu Cheu. The question therefore, remained unanswered on the part of the insurance company as to under what circumstances insurance cover note has been issued in favour of Ashish Gautam and premium taken from Ashish Gautam while the insurance policy of a vehicle runs/ lasts for a period of one year. In order to appreciate the findings of the Tribunal on the question of insurance cover of the same no. 002300174211 being issued in the name of Ashish Gautam which is paper no. 29-C/2 on record, it is necessary to examine the original records. On examining the same very carefully, I find that this cover note is for an insurance policy to operate between 08.09.2010 and 07.09.2011. It is not disputed by the insurance company that Toyota vehicle was initially owned by Lalit Jain and insurance cover was there from 06.08.2010, so naturally it was to last up to 05.08.2011, and, therefore, there was no occasion to issue another insurance policy for the same period by the insurance company. It is not required under the law that on transfer of vehicle, it is to be re- insured. There stood insurance cover on transfer in the name of Ashish Gautam, if this argument of insurance company is accepted, it could have been only after its sale/ transfer by the original owner which is neither here nor there.
7. Rule 55 of the Central Motor Vehicles Rules, 1989 provides how the transfer of ownership takes effect as far as the registration of vehicle in the name of transferee is concerned. Rule 55 runs as under:
“55. Transfer of ownership.—(1) Where the ownership of a motor vehicle is transferred, the transferor shall report the fact of transfer in Form 29 to the registering authorities concerned in whose jurisdiction the transferor and the transferee reside or have their places of business.
(2) An application for the transfer of ownership of a motor vehicle under sub-clause (z) of clause (a) of sub-section (1) of section 50 shall be made by the transferee in Form 30, and shall be accompanied by—
(i) the certificate of registration;
(ii) the certificate of insurance; and
(iii) the appropriate fee as specified in rule 81.
(3) An application for transfer of ownership of a motor vehicle under sub-clause (ii) of clause (a) of sub-section (1) of section 50 shall be made by the transferee in Form 30 and shall, in addition to the documents and fee referred to in sub-rule (2), be accompanied by one of the following documents, namely:—
(a) a no objection certificate granted by the registering authority under subsection (3) of section 48; or
(b) an order of the registering authority refusing to grant the no objection certificate under sub-section (3) of section 48; or
(c) where the no objection certificate or the order, as the case may be, has not been received, a declaration by the transferor that he has not received any such communication together with—
(i) the receipt obtained from the registering authority under subsection (2) of section 48; or
(ii) the postal acknowledgement received from the registering authority where the application for no objection certificate has been sent by post.”
8. From the perusal of above provisions it is absolutely clear that Form 29 and Form 30 are necessarily required to be filled in. While the transferor should report the fact of transfer in Form 29, the application for the registration of new ownership of the motor vehicle shall be made by the transferee in Form 30.
9. In order to appreciate the argument that cover note bearing no. 002300174211 which was being claimed by the owner of the tractor was forged one, as is alleged by appellant, as the same number cover note was issued in the name of Ashish Gautam as a trasferee cum owner of Tata Fortuner vehicle, I have examined the original records relating to Form 29 and Form 30 as well. Form 30 that has been filed by the insurance company and which is marked as paper no. 35-C/5 is only one page form and the other two pages are not filed. This Form 30 is to be presented before the registering authority for the change of ownership. The Form 29 which is paper no. 35-C/6 is also there and on comparison, the signatures of transferor on the two forms, I see it completely defer from the signatures of Lalit Jain on Forms 29 and 30 that have been filed by the DW-2, the clerk of RTO office and marked as exhibit paper no. 41-C/2 and 41-C/5. Form 41-C/2 and 41-C/5 (Form Nos. 30 and 29 respectively) bear the seal of owner of Diamond Carpets namely Lalit Jain. Further, the two other parts of the form namely paper no. 41-C/3 and the back leaf of 41-C/2 as I see, forming part of form no. 30 are missing in form 30 that has been filed by the insurance company as 35- C/5 nor, paper no. 35-C/5 and 35-C/6 bear the seal of the Proprietor of M/s. Diamond Carpets who was the original owner of Car and so further there is no such application/ forms available in the records of RTO as had been admitted by DW-2, the Clerk of RTO office.
10. Thus, in my clear opinion, the documents that have been filed by the insurance company as Forms 29 and 30 have been prepared for the purpose of this case otherwise, the insurance company should have filed the complete form 30 and also the photograph of the owner of the vehicle which is pasted as such for transferor and it is there on the form produced and filed by DW-2 and further it should have also been there in the office of RTO, like the one of Ashu Cheu in whose name the vehicle stands registered on transfer.
11. Further, the original cover note which has been filed bears entries by pencil. When a cover note at that time was issued, it used to be filled in four copies, one for insured, one for seller and other two copies for insurance company. So the original cover note cannot be filled in by pencil as there will be no carbon impression thereof in subsequent copies. It appears that there has been some manipulation at the end of officials of the insurance company to prepare documents to set up defence in the present case.
12. From the perusal of original records and the various exhibits/ papers, I find that there is nothing to doubt about the insurance cover issued in respect of the tractor by the insurance company. The story set up by the insurance company of transfer of Tata Fortuner vehicle from original owner Lalit Jain, first to Ashish Gautam turns out to be concocted and fake one. Had it been a case of transfer of vehicle by Lalit Jain to Ashish Gautam, there was no occasion for Lalit Jain to re-transfer the vehicle to Ashu Cheu.
13. In view of the above, I do not find any fault with the findings returned by the Tribunal in respect of insurance cover note of the tractor issued by the appellant and the policy in respect thereof could not be doubted. The insurance company, in the opinion of the Court, has tried to set up a defence without there being any evidence in support thereof. Even the official of the RTO has deposed that Lalit Jain had already got his vehicle insured at the time of purchase i.e. 06.08.2010 and thus, the insurance cover which was in favour of Fortuner Car issued to Lalit Jain was to continue till 05.08.2011, Ashish Gautam has never been in picture either as owner or transferee of the vehicle.
14. No other argument has been led by the counsel for the insurance company to assail the findings of the Tribunal and the award.
15. Appeal lacks merit and is accordingly dismissed.
Order Date :- 21.08.2018 IrfanUddin