ORIGINAL JURISDICTION - Orissa High Court

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on decision in Rikhi Ram and another –vrs.- Sukhrania and others,
2003 (2) T.A.C. 22 (S.C).
6. Having perused the materials on record and considered the contentions
raised on behalf of the parties, it is found that certain facts are not at all
disputed. Insurance policy was issued by the Insurance Company in favour
of the appellant’s deceased husband in respect of the offending vehicle prior
to the accident covering the period from 7.1.1997 to 28.2.1998 vide Ext.A
series. Appellant’s husband died on 18.3.1997 and accident took place on
28.6.1997. Ownership of the offending vehicle was transferred by the
registering authority in the name of the appellant on 4.12.1997 as is revealed
from the copy of the registration certificate filed on behalf of the appellant.
Claim application was filed on 19.3.1999 impleading appellant’s deceasedhusband
as the owner. Having learnt regarding death of the appellant’s
husband claimants impleaded the appellant as the owner of the vehicle
when the claim application was pending. Accordingly, claim application was
amended before hearing commenced. It is not disputed that insurance
SMT. TULASI SAHUKAR -V- NEW INDIA ASSURANCE [B.K.PATEL,J.]
policy issued in favour of the offending vehicle was never cancelled or
rescinded by the Insurance Company.
7. In view of such admitted facts, there is no scope for the Insurance
Company to assail impletion of the appellant in the claim proceeding as the
owner. No objection was raised before the learned Tribunal against
impletion of the appellant. Scheme of the Motor Vehicles Act also does not
provide any scope to the Insurance Company to object to appellant’s
impletion on the ground of bar of limitation. Decision in Cuttack
Municipality –vrs.- Shyamsundar Behera (supra) relied upon by the
learned counsel for the Insurance Company to canvass his objection to the
impletion of appellant as the owner of the vehicle lays down that no
substitution can be permitted in a case where there was a sole defendant,
but where there are more defendants than one and one of them was dead
when the suit was filed, the legal representatives of the deceased defendant
can be brought on record subject to the question of limitation that may be
available to be raised. In the present case, admittedly, deceased-owner was
not the only opposite party against whom claim application was filed.
Therefore, the objection is not sustainable.
8. The crucial issue to be decided in the appeal is as to whether third party
liability of the Insurance Company subsisted in respect of the cause of action
arising of use of the offending vehicle after the death of the appellant’s
husband but during the period for which the policy had been issued. Stand
of the Insurance Company is that the liability towards third party ceased due
to inaction on the part of the appellant to get ownership of the offending