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2000 DIGILAW 245 (AP)

United India Insurance Co. Ltd. v. Lakshmaiah

2000-03-30

G.BIKSHAPATHY

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BIKSHAPATHY, J. ( 1 ) ALL these appeals can be disposed of by a common order. ( 2 ) IN an accident that took place on 10. 1. 93 one person died and a number of persons were injured, a tractor-trailer was involved in the accident. All the injured persons including the claimants of the deceased person filed O. Ps. before the Tribunal contending that the accident arose on account of rash and negligent driving of the tractor by the driver and they were entitled for compensation in accordance with the provisions of the Motor Vehicles act. ( 3 ) BEFORE the Tribunal in all 32 persons were examined on behalf of the claimants in various O. Ps. and two witnesses were examined on behalf of the respondents. Exhs. A-l to A-32 were marked for petitioners. Exhs. B-l to B-3 were marked for the respondents. After considering evidence on record, the Tribunal found that accident arose on account of the rash and negligent driving of the tractor-trailer and accordingly allowed various amounts. The said order is assailed by the insurance company in a batch of these cases. ( 4 ) THE learned counsel appearing for the insurance company Mr. K. L. N. Rao submits that all the passengers who were involved in the accident were gratuitous passengers and, therefore, it is a violation of the conditions of the policy and hence the Tribunal ought not to have allowed the claims of the said gratuitous passengers as against the insurance company. Next, also he submits that the driver was not holding a valid driving licence. In other words, no licence was possessed by the driver and hence if any accident had taken place on account of the driving by such driver, insurance company is not liable as it is a breach of conditions of the insurance policy. On the other hand, the learned counsel for the respondents submit that these pleas are no more available to the insurance company and these are the questions of fact that the Tribunal found against the owner/insurance company. ( 5 ) I have given serious consideration to the respective contentions. On the other hand, the learned counsel for the respondents submit that these pleas are no more available to the insurance company and these are the questions of fact that the Tribunal found against the owner/insurance company. ( 5 ) I have given serious consideration to the respective contentions. ( 6 ) WITH regard to the first contention raised by the learned counsel for the insurance company that the persons involved in the accident are gratuitous passengers it is no more available for the insurance company to take such a contention in the appeal in view of the judgment of the Supreme court in New India Assurance Co. Ltd. v. Satpal Singh, 2000 ACJ 1 (SC ). Therefore, accordingly this contention is rejected. ( 7 ) COMING to the next contention that the driver of the tractor-trailer did not possess the licence and even in the written statement filed by the driver he had categorically stated that he did not possess the licence and he drove the vehicle on the directions of the owner. In view of this categorical submission of the driver that he did not possess the licence, the lower court could not mulct the insurance company with the liability. It is submitted that the insurance company is liable only when the conditions of policy are complied. Therefore, he submits that the claim as far as it relates to the liability fastened on the insurance company is liable to be set aside. Though the argument of the learned counsel appeared to be appealing in the first blush, but on a deeper scrutiny of the said contention, it has to be rejected. It is now held by the catena of the decisions of the Supreme Court and when once the initial entrustment of the vehicle by the owner is legal, the subsequent events become immaterial. But, in the instant case, the learned counsel submits that the initial entrustment is contrary to those provisions of the Act. Therefore, the claim has to be rejected as against the insurance company. This aspect was considered by the Division bench of this court in Divisional Manager, new India Assurance Co. Ltd. y. Tumu gurava Reddy, 2001 ACJ 542 (AP), and it was held that the breach of conditions of policy must be established as a fact and the burden of proving this breach solely rests on the insurance company. This aspect was considered by the Division bench of this court in Divisional Manager, new India Assurance Co. Ltd. y. Tumu gurava Reddy, 2001 ACJ 542 (AP), and it was held that the breach of conditions of policy must be established as a fact and the burden of proving this breach solely rests on the insurance company. Insurance company has to prove that the owner having full knowledge that the driver has no driving licence entrusted the vehicle and if such a burden is not discharged by the insurance company, it cannot avoid the liability of payment of compensation. In the said Division Bench decision, it was held that the term breach has to be construed as a wilful default and intentional omission. Mere omission per se is not a breach by itself. Therefore, what is required to be considered is whether the insurance company has been able to establish the breach on the part of the owner as contemplated in the decision in T. Gurava Reddy s case (supra ). The insurance company has been solely depending on the written statement filed by the driver in the case, wherein he has stated that he has no driving licence and that he has driven on the instructions of the owner. But, in my view, that it is not a sufficient compliance to establish the breach on the part of the owner. The insurance company had neither pleaded in the counter that the owner had deliberately and intentionally handed over the vehicle to the driver despite having full knowledge that he had no driving licence nor led any evidence to this effect. Under these circumstances, it would not be open for the insurance company to disown the liability on the alleged ground of violation of the conditions of policy. Under these circumstances, the second contention also falls to ground. ( 8 ) THUS, I do not find any merits in all the appeals filed by the insurance company. Accordingly, they are dismissed. No costs. Appeals dismissed.