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TMI Blog1991 (3) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... R 7519, driven by the respondent No. 8. This was on 23-10-82 at about 2 p.m, The insurance policy, which constitutes the contract between the appellant and the insured (respondent No. 9) who was admittedly the registered owner. The vehicle was agreed to be sold to respondent No. 8 Raghavan by the document Ext. R4. But, he was never registered as the owner of the vehicle. According to the appellant, the respondent No, 8, who was driving the vehicle, did not hold a valid driving licence. The Tribunal made these findings: (a) The driver caused the death of P. Kassim by rash and negligent driving; (b) The vehicle was driven by the respondent No. 10 K. Mohammed and not by respondent No. 8; (c) Ext. R4 which is the agreement whereunder respondent No. 9 claims to have sold the vehicle to respondent No. 8, represents a mere agreement to sell the vehicle and, therefore, respondent No. 9, who was covered by the insurance policy, continued to be the owner of the vehicle; and (d) Consequently, the appellant was liable to indemnify the claim under the insurance policy. 3. Respondents 1 to 7 have filed cross-objection to the appeal. 4. Learned counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain the intention of the parties. 6. It is undisputed that Ext. R4 was executed between respondent No. 8 and respondent No. 9. But, since the transfer of the property in the vehicle is disputed it is necessary to examine whether the contents of Ext, R4 and the surrounding circumstances spell out such transfer. If the circumstances show that a condition was stipulated and it remained unfulfilled, it is reasonable to hold that transfer of property in the motor vehicle had not taken place on the date of the accident. It is well-settled that a contract of insurance evidenced by a policy of insurance lapses upon the transfer of the vehicle unless the transferee has a contract with the insurer, 8. Swarriinathan v. Jayalakshmi Amma (1987 (2) KLT 292. It is this legal proposition that the appellant relies upon. 7. The document, which is written in Malayalam language, has been read out and translated to us into English. In understanding the intention of the parties to Ext. R4, the label agreement attached to the document is not of significance. The document, though styled as an agreement, has to be read as a whole and its real nature determined. The effect of the description of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rship of a vehicle is a matter governed not by the provisions of the Motor Vehicle Act but by the provisions of the Sale of Goods Act. Delhi High Court too has held that a transfer made in accordance with the Sale of Goods Actmust precede registration certificate and that such certificate is not a document of title, The Oriental Fire General Ins. Co. Ltd. v. Vimal Rai and others (AIR 1973 Delhi 115). It follows, therefore, that what is of the essence is the actual transfer of the property in the vehicle and not the certificate of registration. The Madhya Pradesh High Court, United India Fire and General Insurance Co. Ltd. v. Kanchanbai (1981 ACJ 554) : AIR 181 MP 225 has also held that notwithstanding the delivery of possession of the vehicle and in the absence of payment of full price, the transferor continues to be the owner and the insurer is liable to pay compensation. In J. C. Channarayudu, J. C. Chennarayudu v. N. Lakshmamma (AIR T980 Andhra Pradesh 143) the Andhra Pradesh High Court dealt with a case where the transferor had taken the further step of signing the transfer application and had handed it over to the transferee . Notwithstanding this fact, it was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s promise . The legal position, therefore, is that there must not only be a breach or violation of promise but must be wilfully committed by the promisor. 12. The conceptual analysis of the breach of promise leads to the inevitable question : who shall prove such wilfull breach? In other words, on whom does the onus of proof He? In this case, the appellant, insurer, desires the Court to give judgment that it is exonerated from the obligation to indemnify the insured. The insurer's right depends upon the existence of a fact, namely, driving by an un-licenced driver. It is necessary to examine the provision of law in regard to burden of proof. 13. It is an elementary rule of evidence that if the insurer desires the court to give judgment as to his legal right to be exonerated from the liability to indemnify the insured, he must prove the existence of facts upon which such legal right depends. On the basis of pleadings and evidence in this case, it is clear that the insurer fails if no evidence of the fact on which his legal right depends, is not led. Since, as we have pointed out in para 10 above, no evidence of the fact that the vehicle was driven by an unlicenced driv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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