The main legal point established in the judgment is the importance of ascertaining the intention of the parties in disputes about the transfer of property, and the burden of proof in establishing the insurer's liability.

G.H. Guttal, J.

1. The insurer, United India Insurance Co. Ltd., Ernakulamlias preferred this appeal against the award of the Mb for Accidents Claims Tribunal, Kozhikode in M. AC. No. 220 of 1981 by which a sum of Rs. 55,000/- was awarded to respondent Nos.1 to 7, the heirs of deceased P. Kassim. The respondent No. 8, who is alleged to have been driving the vehicle at the time of the accident, disputes that he was driving the vehicle. The respondent No. 9, the insured, claims to have transferred the vehicle to respondent No. 8 before the occurrence of the accident. Therefore, he claims that he was not the owner of the vehicle at the relevant time. The respondents 1 to 7 are hereinafter referred to as the claimants.

2. The facts giving rise to this appeal are briefly these: The deceased, P. Kassim, standing in front of a shop at Thottilpalam road junction, Kuttiadi, was knocked down by the jeep bearing Reg. No. KLR 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) Exit. 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 urged that his client, the insurer, is not liable to pay compensation. He bases his case on the following submissions:

(i) The document, Ext. R4, though styled as an agreement, effects the transfer of ownership of the vehicle to respondent No. 8. The respondent No. 8 was, at the relevant time, the owner of the vehicle by virtue of this transaction. The contract of insurance was between the appellant and respondent No.9. Respondent No. 8 was not covered by the insurance policy. Therefore, the appellant is not liable to pay compensation.

(ii) The respondent No. 8 or whoever was driving the vehicle, had no valid licence to drive a motor vehicle. The accident was caused by a person who had no valid licence to drive. This constitutes breach of the terms of the policy.

5. The first question urged by learned counsel for the appellant necessarily demands consideration of the provisions of law' in regard to transfer of movable property, because a motor vehicle is a movable property. The law in regard to transfer of such property is embodied in the Sale of Goods Act. A distinction between sale and agreement to sell is clearly conceived and laid down in the Act. (S. 4(1) -Sale of Goods act). A contract of sale is a contract whereby the seller transfers or agrees to transfer the property in the goods to the buyer, for a price (S.4(1) - Sale of Goods act). Such contract of sale may be absolute or conditional. (S.4(2) - Sale of Goods act). Where, under any contract of sale "the property in the goods" is transferred the contract is called sale (S.4(3) - Sale of Goods act). But, where the transfer of the property in the goods is not immediate but is to take place "subject to some conditions thereafter to be fulfilled" the contract is called an agreement to sell (S.4(3) - Sale of Goods act) and not a sale. Thus, an agreement of sale of goods becomes a sale "when the conditions are fu