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1998 DIGILAW 720 (GUJ)

NEW INDIA ASSURANCE COMPANY LIMITED v. MANCHHIBEN

1998-11-18

S.K.KESHOTE

body1998
S. K. KESHOTE, J. ( 1 ) THIS group of appeals arise from common judgment and award of the Motor Accident Claims Tribunal (Main) at Bharuch in Motor Accident claims Petition No. 399 of 1986 and allied matters decided on 16/01/1996. The claim applications have arisen from one and the same motor vehicle accident and those claim applications have been consolidated and decided under the common order. In view of this fact. these appeals are taken up for hearing together and are being disposed of by this common order. ( 2 ). Before the Motor Accident Claims Tribunal there were in all nine cases filed by the claimants. Out of these nine cases except in M. A. C. P. No. 376 of 1986 rest were the cases of fatal accident and for the death of bread winner claimants lodged claim applications for obtaining the compensation. M. A. C. P. No. 376 of 1986 pertains to bodily injury sustained by the claimant-appellant therein. The details of those M. A. C. Ps. together with the name of applicants and death or injury sustained. and the amount claimed therein are as under : ( 21 ). I consider it to be fruitful here to make reference to the decision of the apex Court in the case of Sohanlal Passi v. P. Sesh Reddy, reported 1997 (2) GLR 1093. In para 12 of the judgment, the Apex Court observed as under :". . . . To examine the correctness of the aforesaid view this appeal was referred to a three-Judge Bench, because on behalf of the insurance company, a stand was taken that when Sec. 96 (2) (b) (i) has provided that the insurer shall be entitled to defend the action on the ground that there has been breach of a specified condition to the policy, i. e. , the vehicle should not be driven by a person who is not duly licensed. then the insurance company cannot be held to be liable to indemnify the owner of the vehicle. In other words, once there has been a contravention of the condition prescribed in sub-sec. 2 (b) (ii) of Sec. 96, the person insured shall not be entitled to the benefit of sub-sec. (1) of Sec. 96. According to us. Sec. 96 (2) (b) (i) should not be interpreted in a technical manner. Sub-sec. In other words, once there has been a contravention of the condition prescribed in sub-sec. 2 (b) (ii) of Sec. 96, the person insured shall not be entitled to the benefit of sub-sec. (1) of Sec. 96. According to us. Sec. 96 (2) (b) (i) should not be interpreted in a technical manner. Sub-sec. (2) of Sec. 96 only enables the insurance company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in sub-sec. (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. This bar on the face of it operates on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability ? The expression "breach" occurring in Sec. 96 (2) (b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The in arer has also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability under sub-sec. (1) of Sec. 96. In the present case, far from establishing that it was the appellant who had allowed Rajinder Pal Singh to drive the vehicle when the accident look place, there is not even any allegation that it was the appellant who was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. In the present case, far from establishing that it was the appellant who had allowed Rajinder Pal Singh to drive the vehicle when the accident look place, there is not even any allegation that it was the appellant who was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. From the facts of the case, it appears that the appellant had done everything within his power inasmuch as he has engaged a licensed driver gurbachan Singh and had placed the vehicle in his charge. While interpreting the contract of insurance, the Tribunals and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of sub-sec. (1) of Sec. 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known. " ( 22 ). In view of the position of law and the factual position which have come on record, the impugned award does not suffer from any infirmity or illegality. which calls for interference of this Court. ( 23 ). In the result, all these appeals fail and the same are dismissed. .