Andley J.

(1) THERE was an accident on 16th July, 1963 as a result of which, Balwant Rai, husband of appellant No. 1 and father of appellants Nos. 2 and 3 died on the 17th July, 1963. The accident was caused by a motor cycle bearing registration No. DLO 2706, Jawa make, 1962 model. At the time of the accident the motor cycle was being driven by Ram Lal respondent No. 4. The appellants filed a petition under section 110-A of the Motor Vehicles Act, 1939, before the Motor Accidents Claims Tribunal Delhi, claiming Rs. 1,50,000. 00 as compensation.

(2) AT the time of the accident, the motor cycle in question stood registered in the relevant records of the Motor Licencing Authority, Delhi, in the name of Gurcharan Singh, respondent No. 1. Gurcharan Singh had taken out an insurance policy covering third parly risks from Oriental Fire and General Insurance Company Limited, New Delhi, respondent No. 3. The insurance policy had been issued on or about the 15th October, 1962 and was effective for one year. In the application for compensation, the appellants had impleaded one M. G. Krishna Rao, as respondent No. 2 and they had shown Gurcharan Singh and Rao, as owners of the Motor cycle. Ram Lal respondent No. 4 was stated to be a mechanic in the workshop of Gulzari Lal who was made respondent No. 5.

(3) THE age of the deceased was stated to be 41 years and 7 months at the time of his death and it was alleged that he was employed in the Ministry of Home Affairs and had a monthly income of Rs. 300. 00. Along with the petition, a statement of claim was filed. Rs. 61,200. 00 were claimed as the salary, which the deceased would have earned during the remaining 17 years of his service ; Rs. 30,000. 00 were claimed on account of loss of the chances of promotion; Rs. 32,000. 00 were claimed as loss of pension for 18 years at the rate of Rs. 1,800. 00 per year ; Rs. 18,000. 00 were claimed as loss of income, which could have been supplemented after retirement by the own efforts of the deceased and Rs. 8,400. 00 were claimed for the mental agony suffered by the appellants. The claim as to loss of pension and the claim as to the loss of supplementary income after retirement were based on the assumption that the deceased would have lived upto the age of 75 years.

(4) RESPONDENT No. 1 filed a written statement denying knowledge of any of the facts alleged in the petition and further pleaded that he was not liable to pay any compensation as he was neither the owner nor the driver of the motor cycle on the alleged day of occurrence. Respondent No. 2 also denied the allegation in the petition. He, however, admitted that he was the owner of the motor cycle on the date of the occurrence, but he pleaded that he had never engaged Ram Lal (respondent No. 4) to drive the vehicle. His case was that he had engaged the service of respondent No. 5 for the repair of the motor cycle and he further stated that "if the respondent No. 5 negligently entrusted the vehicle to one of his own employees which the respondent No. 2 believes that the respondent No. 4 was the employee of respondent No. 5, the compensation is payable either by the respondent No. 4 or by respondent No. 5." His further case was that the deceased was- guilty of contributory negligence. At this stage, I may mention that the date on which respondent No. 1 is alleged to have sold the vehicle to respondent No. 2 was not mentioned either in the written statement of respondent No. 1 or in the written statement of respondent No. 2.

(5) RESPONDENT No. 3 also filed a written statement and the only plea which is material for the purposes of this appeal which was raised by respondent No. 3 was that respondent No. 1 had transferred the ownership of the motor cycle to respondent No. 2 with effect from 1st July, 1963 and therefore, the policy had ceased to be in force. It is to be noticed that respondent No. 3 in their written statement have not used the word "sale" but have used the words "transferred the ownership."

(6) RAM Lal, respondent No. 4, in his written statement denied that he was driving the motor cycle. But there is no assertion in his written statement that he was not an employee of respondent No. 5. Likewise, in the written statement filed by respondent No. 5, there is no assertion that respondent No. 4 was not his employee. The main plea which was raised by respondent No. 5 was that if the deceased died in an accident, it was through no fault of respondent No. 4.

(7) ON these pleadings, the Claims Tribunal framed the following issues : 1. Whether the alleged accident resulting into death of Balwant Rai was caused due to rash and negligent driving of Ram Lal respondent in the course of his employment with respondent No. 5 on 16-7-63 2. Whether the motor cycle in question was owned by respondent No. 1 or 2 on the date of accident 3. Whether the policy of insurance in regard to the vehicle in question was in force in the name of respondent No. 1 4. What is the effect of transfer of the vehicle in question by respondent No. 1 to respondent No. 2 on 1-7-63 (the alleged date of transfer qua the liability of the Insurance Co.) 5. Whether the petition discloses any cause of action against respondent No. 5 and its effect 6. Whether the petitioners are entitled to damages and from whom 7. Whether the person driving the vehicle at the time of accident was entitled to use it and the Insurance Co. was not liable on the grounds taken in para 4 of the preliminary objections of respondent No. 3 8. Whether the petitioners are the legal representatives of the deceased 9. Relief.

(8) BY his judgment dated 20th July, 1965, the Claims Tribunal awarded Rs. 31,500. 00 in favour of the appellants but against respondents Nos. 4 and 5 only and dismissed the claim against respondents Nos. 1 to 3. In awarding this amount, the Claims Tribunal came to the following conclusions : (1) that the accident was due to the rash and negligent driving on the part of Ram Lal respondent No. 4 ; (2) that respondent No. 2 had handed over the motor cycle to respondent No. 5 for repairs and that Ram Lal, respondent No. 4, was driving the vehicle as an employee or with the. permission or authority of respondent No. 5 ; (3) that respondent No. 2 was the owner of the motor cycle on the date of the accident, namely, 16th July, 1963, because it had been sold to him by respondent No, 1 on 1st July, 1963. (4) that since the motor cycle had been sold before the date of the accident, the insurance policy had ceased to remain in force. (5) that it was open to respondent No. 3 to plead that the insurance policy was not in force and that the motor cycle was not insured on the date of the accident and, therefore, respondent No. 3 was not liable. (6) that the act of driving the motor cycle by respondent No. 4 was unauthorised and, therefore, respondent No. 2 was also not liable and (7) that the appellants would be entitled to compensation amounting to Rs. 31,500. 00.

(9) THE first point that has been argued before me is whether there was a sale of the motor cycle by respondent No. 1 in favour of respondent No. 2 on 1st July, 1963 i. e. , about 15 days before the accident. In support of the plea that this sale took place on 1st July 1963, reliance has been placed by respondents upon the statement of respondent No. 1 and respondent No. 2 and upon a letter dated the 24th July, 1963, addressed by respondent No. 1 to the Motor Licensing Authority stating that the motor cycle had been sold on 1st July, 1963. It is the case of the respondents that although no document was executed on 1st July, 1963, evidencing the sale, the sale stands fully proved by reason of the aforesaid letter of the 24th July, 1963. It is further contended that a motor cycle is movable property and a sale thereof could be effected by delivery of possession and payment of price. All that respondent No. 1 has stated in his examination-in-chief is that he sold the motor cycle to respondent No. 2 on 1st July, 1963. In cross-examination he has admitted that no intimation of the sale was given to the Insurance Company at the time of the sale and such intimation was given after the accident. He has further admitted that no writing was executed at the time of the sale, nor was any receipt given regarding the consideration of the sale price. Respondent No. 2, while asserting that he has purchased the motor cycle on 1st July, 1963, has admitted that he did not get any receipt from respondent No. 1 about the purchase. It is noticeable that neither in their written statements nor in their statements before the Court have respondents Nos. 1 and 2 deposed about the purchase price of the motor cycle. They have made bare assertions that there was a sale. A sale is defined in section 54 of the Transfer of Property Act as transfer of ownership in exchange for a price paid or promised or part paid and part promised. The petitioners have got all that they could expect to get from respondents Nos. 1 and 2 in their statements before the Court in cross-examination when they admitted that there was ho Writing regarding the sale on the date of the accident, and no receipt about the payment of price had been exchanged. In my opinion, the onus of proving that there was a sale would lie upon respondent No. 1 and respondent No. 2, as all the incidents relating to the sale would be in their special knowledge particularly when the sale was sought to be proved against a third party. Respondents Nos. 1 and 2 have failed to prove the essential elements of a sale, namely, the payment of price. The counsel for respondents Nos. 1, 2 and 3 have laid stress upon the fact that the statement of respondent No. 2 to the effect that he had purchased the motor vehicle on 1st July, 1963, must be accepted as conclusive because that is a statement made by respondent No. 2 against his own interest in view of the liability that he would incur if he was the owner of the motor cycle on the date of the accident. The question is whether respondent No. 2, when he made that statement was conscious of the fact that he was making a statement against his own interest. In his cross- examination respondent No. 2 has stated "at the time when I purchased the vehicle and at the time when I used it, when I handed it over for repairs and collected the same, I was of the impression that the insurance policy was subsisting. This was my view. "That being the state of his understanding even on the date when he made the statement in Court on 27th February, 1965, it must follow that he was of the view that if any decree is passed against him, the Insurance Company would be liable. In view of the above, I do not agree that the admission by respondent No. 2 about his having purchased the motor cycle on 1st July, 1963 was a statement against his own interest. The position, therefore, is that apart from a bare assertion by respondents Nos. 1 and 2, there is no cogent evidence of a sale having taken place on 1st July, 1963. There is no evidence of the price paid or agreed to be paid. There is no receipt exchanged between the parties either with regard to the consideration or the handing over of the possession. There is not even an iota of evidence as to the price for which the sale took place and there is no writing evidencing the sale which is contemporaneous with the alleged date of sale. The statement in the letter dated 24th July, 1963, which was written by respondent No. 1 to the Motor Licensing Authority about the sale having taken place on 1st July, 1963 cannot be taken advantage of by respondent No. 1, as, at best, it is an admission in his own favour. There is no explanation whatsoever as to why this letter was written 23 days after the alleged sale although an intimation of sale of a motor vehicle is required by section 31 of the Motor Vehicles Act to be given to the registering authority by the transferor within 14 days of the transfer and by the transferee within 30 days of the transfer. There is no evidence that any such notice as required by section 31 of the Motor Vehicles Act, was given by the transferee to the Motor Registering Authority at any time. Further, the Insurance Policy in question has been transferred in favour of respondent No. 2 with effect from 3rd September, 1963 and not with effect from 1st July, 1963.

(10) THERE is another aspect of this matter. To my mind, the sale of a motor vehicle will not be governed by the ordinary law relating to sales of movable property. The Motor Vehicles Act, 1939 makes it compulsory for every owner of a motor vehicle to get the motor vehicle registered with the Registering Authority (vide section 22 ). The Act prescribes by section 24 the method of registration of a motor vehicle and by section 31 of the transfer of ownership of a motor vehicle, A perusal of the various provisions of the Act leads to only one conclusion that ownership of a motor vehicle is to be evidenced by the registration as such with the Motor Registering Authority and the registration book which is supplied is the document of title. I think the Act proceeds on the basis that it is only the ostensible owner who is entered as such in the registration books, who is to be considered to be the owner of the motor vehicle irrespective of the fact that the real ownership may be with somebody else.

(11) IN view of all these circumstances, I am of the view that no sale of the motor cycle had taken place on 1st July, 1963 as alleged by respondents Nos. 1 to 3 and hold that the motor cycle continued to be in the ownership of respondent No. 1 till long after the accident when ownership Was transferred to respondent No. 2.

(12) THE necessary result of the above finding is that Gurcharan Singh, respondent No. 1, continued to be the owner of the motor cycle and, at any rate, was the owner of the motor cycle on l6th July, 1963, when the accident took place. Mr. Harish Chandra appearing for the Insurance Company respondent No. 3 concedes that if Respondent No. 1 is held to be the owner of the motor cycle on the date of the accident his clients would be bound to satisfy any judgment given against Respondent No. 1 and he has not addressed any argument to contend that the act of driving the motor cycle by respondent No. 4, Ram Lal was in excess of authority.

(13) BUT I must also deal with the case on the assumption that delivery of possession of the motor cycle was given to respondent No. 2 by respondent No. 1 on or about 1st July, 1963 in pursuance of an oral agreement of sale. What has been urged by the counsel for respondents Nos. 1 to 3 is that the sale of a motor vehicle results in the lapse of the insurance policy irrespective of whether a transfer of ownership has been recorded as required by section 31 of the said Act, in the records of the Motor registering authority. If the policy lapses by operation of the general law of insurance by reason of a sale, the contention is that the Insurance Company escapes the statutory liability prescribed qua third parties. Taking into consideration the provisions of the said Act, I am of the view that it is not open to the Insurance Company to raise this plea in an action by the third party or its legal representatives. Section 96 (2) of the Act has specified the defences that are open to an Insurance Company in a claim by a third party. The specification of the defences is exhaustive and it is not open to an Insurance Company to raise any other defences. Section 96 (2) (a) provides that it is open to an Insurance Company to plead 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 ah affidavit stating that the certificate has been lost or destroyed or that either before or not later than 14 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. It is conceded as it is obvious that there was no cancellation of the policy with which I am concerned in accordance with this provision. The Motor Vehicles Act is a special Act and when a special Act has dealt with a particular subject, it is the special Act and special Act alone which is to be looked at for the purpose of finding out if the condition specified is satisfied and I do not think it is permissible to go to the general law. There is no doubt that the said Act made vast inroads into the general law of insurance. For example section 97 protects the rights of third parties upon the insolvency of the assured and section 102 provides for the continued liability of the Insurance Company even upon the death of the insured if it occures after the accident. The object of incorporating the provisions in Chapter VIII of the Motor Vehicles Act with regard to third party risks has been succinctly described by Sarkar, J. (as he then was) in British India General Insurance Co. Lid. v. Captain Itbar Singh and others in the following words : "now the language of sub-section (2) seems to us to be perfectly plain and to admit of no doubt or confusion. It is that an insurer to whom the requisite notice of the action has been given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely, after which comes an enumeration of the grounds. It would follow that an insurer is entitled to defend on any of the grounds enumerated and no others. If it were not so, then of course no grounds need have been enumerated. When the grounds of defence have been specified, they cannot be added to. To do that would be adding words to the statute. ""subjection (d) also indicates clearly how sub-section (2) should be read. It says that no insurer to whom the notice of the action has been given shall be entitled to avoid his liability under subsection (1) otherwise than in the manner provided for in sub-section (2)". Now the only manner of avoiding liability provided for in sub-section (2) is by successfully raising any of the defences therein mentioned. It comes then to this that the insurer cannot avoid his liability except by establishing such defences. Therefore, sub-section (6) clearly contemplates that he cannot take any defence not mentioned in subsection (2). If he could, then he would have been in a position to avoid his liability in a manner other than that provided for in sub-section (2). That is prohibited by sub-section (6). "we therefore think that sub-section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it. " "again, we find the contention wholly unacceptable. The statute has no doubt created a liability in the insurer to the insured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore to the statute for reasons of hardship. We are furthermore not convinced that the statute caused any hardship First, the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the insured and if he does so, all defences open to the assured can then be urged by him and there is no other defence that he claims to be entitled to urge. He can thus avoid all hardship if any, by providing for the right to defend the action in the name of the assured and this he has fall liberty to do. Secondly, if he has been made to pay something which on the contract of the policy he was not bound to pay, he can under the proviso to sub-section (3) and under sub-section (4) recover it from the assured. It was said that the assured might be a man of siraw and the insurer might not be able to recover anything from him. But the answer to that is that it is the insurers bad luck. In such circumstances the injured person also would not have been able to recover the damages suffered by him from the assured, the person causing the injuries. The loss had to fall on some one and the statute has thought fit that it shall be borne by the insurer. That also seems to us to be equitable for the loss falls on the insurer in the course of his carrying on his business, a business out of which he makes profit and he could so arrange his business that in the net result he would never suffer a loss. On the other hand if the loss fell on the injured person, it would be due to no fault of his, it would have been a loss suffered by him arising out of an incident in the happening of which he had no hand at all. In view of this. judgment of the Supreme Court, I am of the view that the plea that the policy had lapsed by reason of an alleged sale on 1st July, 1963 is not open to the Insurance Company. Reliance was placed by the counsel for respondents Nos. 1 to 3 upon a Division Bench judgment of the Madras High Court reported in M. Bhoopathy and others v. M. S. Vijayalakshmi and another, for the proposition that in the absence of an express stipulation to the contrary in the policy, the moment the insured parts with his vehicle, the policy relating to it lapses. In the first place, the facts of that case are quite different from the facts of the case which I am deciding. In the Madras case, the insured had sold his car to his daughter on llth August, 1958, and the transfer of ownership to her was effected by the Regional Transport Officer on 29th August, 1958. The Insurance Company had no knowledge of this transfer until 5lh December, 1958 on which date the daughter obtained a fresh policy which mentioned its effective date of commencement to be 5th December, 1958, while the accident occurred a day previous thereto i. e. on 4th December, 1958. Therefore, the Madras case was a case where the ownership of the vehicle had been transferred in favour of the transferee in the records of the Motor Registering Authority long before the accident. If ownership of the vehicle has been transferred in the records of the Motor Registering Authority, it may be open to the Insurance Company to plead that the policy had come to an end with the change in ownership because the policy was for the insurance of the transferor-owner and for nobody else, provided the policy has been cancelled in accordance with the provisions of section 96 (2) of the said Act. In the second place, if the Madras authority has decided that mere parting of the possession of the motor vehicle without the transfer of of ownership in the records of the Motor Registering Authority results in the lapse of the policy, I beg, with respect, to differ from the judgment. It is noticeable that the Madras case has not referred to the afore-mentioned decision of the Supreme Court with regard to the defences which are open to an Insurance Company. The learned Judges have relied upon the general law of insurance and upon the judgment of Goddard, J. in Peters v. General Accident and Life Assurance Corporation Ltd. The English case which has been relied upon does not deal with or refer to section 10 (2) of the Road Traffic Act, 1934 which is in almost similar terms as section 96 (2) of the Motor Vehicles Act of 1939. Taking into consideration the provisions of the Motor Vehicles Act, 1939 with which I am concerned and the aforementioned decision of the Supreme Court, I am of the view that it was not open to the Insurance Company in this case to plead the lapse of the policy by reason of the alleged sale on 1 st July, 1963. It is, however, contended by the counsel for respondents Nos. 1 and 2 that even if this plea is not open to the Insurance Company, there is nothing in any law which precludes either respondent No. 1 or respondent No. 2 from pleading that the policy had lapsed before the accident by reason of the alleged sale. I put it to the counsel as to whether the Insurance Company would be liable qua third party where the third party is involved in an accident with an insured motor vehicle which has been sold and which is on its way to the motor registering authority for effecting the transfer of ownership and the reply was that the sale, which was anterior in time to the registration would result in the lapse of the policy and the third party who is injured will have no claim against the Insurance Company. This reply, to my mind is completely inconsistent with the provisions of the Motor Vehicles Act and with the object to achieve which Chapter VIII regarding the liability of the Insurance Company was enacted. My conclusion, therefore, is that even though there may, in fact, have been an oral sale of the motor cycle on 1st July, 1963, as alleged, the insurance policy qua third parties would continue to subsist until the ownership of the motor-cycle was transferred in accordance with the provisions of section 31 of the Act and the general principles of insurance regarding lapse of insurance policies immediately upon a sale would not apply to motor vehicles which are governed by the special law. In the circumstances of this case, therefore, respondent No. 3 would continue to be liable to satisfy a judgment even if an oral sale, as alleged, had taken place on 1st July, 1963.

(14) ANOTHER contention which has been urg by the respondent is that the possession of respondent No. 4 and the act of his driving the motor cycle was unauthorised and therefore no vicarious liability can be attached to respondent No. 1. There cannot be the least doubt that so far as respondent No 1 is concerned, the possession of respondent No. 2 was authorised. It is also clear from the evidence that respondent No. 2 entrusted the motor cycle, for repairing the defect in its kick, to the workshop of respondent No. 5. There is no evidence on behalf of the respondents that there were any instructions that the repairs were to be carried on by respondent No. 5 and nobody else. Respondent No. 5 is admittedly carrying on business as a repairer and an implied authority must be presumed to the effect that respondent No. 5 could get the defect repaired by any one in his workshop. The learned Claims Tribunal has remarked that respondent No. 2 had not authorised either respondent No. 4 or 5 to drive the vehicle. He has further held that it was not necessary for the purpose of repairing the defect to drive the vehicle. Now, in this case, the defect which was to be repaired was the defect in starting the motor cycle. Nobody has come forward as an expert witness to say that it was not necessary to drive the motor cycle in order to repair the starting trouble. It was for the respondents to prove conclusively that the act of driving the motor cycle for repairing the starting trouble was in excess of the authority. The finding of the Claims Tribunal that the driving of the motor cycle was not required for the purpose of repairing the starting trouble is to my mind, without any satisfactory evidence. In the absence of any satisfactory evidence in that behalf, I am of the view that it cannot be said that driving of the motor cycle was not involved in the process of repairing the starting trouble and I, therefore, find that the driving of the motor cycle was not an act in excess of authority.

(15) THE only other point left to be determined is as to the quantum of compensation to be awarded. The principles as to quantum have been laid down by the Supreme Court in Gobald Motor Service Ltd. and another v. JR. M. K. Veluswami and others1. I have seen the judgment of the Claims Tribunal and I am of the view that these principles have been taken into consideration in arriving at the figure of Rs. 31,500. 00. I would, therefore, allow the appeal and set aside the order of the Claims Tribunal and I hereby grant an award for Rs. 31,500. 00 in favour of the applicants against respondents Nos. 1, 3, and 4 with costs throughout. The rest of the claim in appeal is dismissed.