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2001 DIGILAW 299 (RAJ)

Oriental Insurance Co. Ltd. v. Smt. Mani & 2 Ors.

2001-02-20

SHIV KUMAR SHARMA

body2001
JUDGMENT 1. - The meaningful question that emerges in the instant miscellaneous appeals is as to whether the Insurance Company can repudiate its liability to pay the compensation in respect of the accident by a vehicle only by showing that at the relevant time it was being driven by a person having no licence? 2. Brief resume of the facts is that on August 31, 1996 Tractor Trolley Nos. KA 28/3832 and RJ 06/E 0849 met with an accident as a result whereof Pura died and Smt. Sabudi, Indra Singh and Gopal sustained injuries. The claim for compensation was resisted by the appellant Insurance Company Contending that the driver of the Tractor was not holding the driving licence therefore the Insurance Company can not be held liable to pay compensation because under the terms of the policy only a person holding driving licence could have driven the Tractor. Claims Tribunal Beawar though observed in the impugned award dated May 22, 2000 that driver was not holding driving licence yet held the appellant Insurance Company jointly and severally liable to pay compensation in the sum of Rs. 1,50,000/-, 15,000, and 50,000 respectively to the claimant respondent alongwith the driver and vehicle owner. It is against this award that the Insurance Company has preferred the instant miscellaneous appeals. 3. Mr. Tripurari Sharma, learned counsel for the appellant Insurance Company in support of the appeals, canvassed that the Tribunal committed illegality in not exonerating the Insurance Company from its liability to meet the claim amount awarded in favour of the claimants. For his submission learned counsel placed reliance on United India Insurance Co. v. Gian Chand and others, 1998 (1) TAC 36 (SC) . Learned counsel urged that appellant Insurance Company discharged its liability by establishing that the driver of the Tractor was not holding driving licence and it was incumbent on the Tractor owner Ladu Singh respondent No. 5 to step in the witness box to prove his case. As he did not chose to do so an adverse inference had necessarily to be drawn against him that the Tractor had been handed over by him for being driven by an unlicensed driver Misru, respondent No. 4. 4. In order to appreciate the submissions of learned counsel I closely scrutinised the impugned award. It appears that the appellant Insurance Company examined Madan Singh DW. 4. In order to appreciate the submissions of learned counsel I closely scrutinised the impugned award. It appears that the appellant Insurance Company examined Madan Singh DW. 1 who stated that a notice was sent to Driver Misru but he refused to accept it and failed to produce driving licence before him. However, in his further examination Madan Singh admitted that he did not make attempt to meet Driver Misru and did not serve notice on the Tractor owner. In the written statement filed by Driver and Tractor owner it was however stated that Driver was holding valid licence but the learned Tribunal relied upon the un-controverted testimony of Madan Singh and observed that driver was not holding driving licence at the time of accident. 5. In the case of U.I.I. v. Gian Chand (supra) the Tribunal took the view that the Insurance Company got exonerated from its liability on account of the fact that the insured had permitted the vehicle to be driven by an unlicensed driver and therefore the insured had committed breach of the relevant term of the Policy and that entitled the Insurance Company to get the benefit of the exclusion clause available as defence to the company under section 96(2)(b) of the Motor Vehicles Act, 1939. The driver of the vehicle preferred appeal before the High Court and contended that Insurance Company should have been made liable to pay compensation and was wrongly exonerated by the Tribunal. The High Court partly allowed the appeal to the extent that the Insurance Company was held jointly and severally liable to pay compensation alongwith the insured and the driver. Their Lordships of the Supreme Court while setting aside the finding of the High Court observed thus (Para 10) "we fail to appreciate how the aforesaid decision can be of any avail to learned counsel for the respondents claimants on the peculiar facts of the present case. It has been clearly held by the Tribunal as well as by the High Court that respondent No. 1 was permitted to drive the vehicle by respondent No. 9, the insured, was admittedly not having any driving licence. It was not the case of respondent No. 9 the insured, that he did not know that respondent No. 1 whom the vehicle was being handed over was not having a valid licence. It was not the case of respondent No. 9 the insured, that he did not know that respondent No. 1 whom the vehicle was being handed over was not having a valid licence. In fact once he did not step in the witness box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver, respondent No. 1. That finding reached by the Tribunal as well as by the High Court must result in exonerating the Insurance Company of its obligation as the statutory defence became available to it." (Emphasis supplied) 6. In the case of Skandia Insurance Company v. Kokilaben Chandravadan, (1987) 2 SCC 654 , their Lordships of the Supreme Court held that when the insured had handed over vehicle to be driven by licensed driver and even if the licensed driver on his own and because of his negligence had allowed an unlicensed cleaner to drive the vehicle it could not be said that there was any breach committed by the insured so to attract the exclusion clause in favour of the Insurance Company as contemplated under section 96(2) of the Motor Vehicles Act, 1939. 7. Section 149 of the Motor Vehicles Act, 1988 prescribed the duty of the insurer to satisfy the judgments against the persons insured in respect of third party risks. Section 96 of the Motor Vehicles Act, 1939 was the parallel provision. In the case of Sohan Lal Passi v. P. Sesh Reddy, 1996 (2) TAC 733 (SC) their Lordships of the Supreme Court indicated that section 96(2)(b)(ii) should not be interpreted in a technical manner. The expression 'breach' occurring in section 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 insurer has also to satisfy that such violation or infringement on the part of the insured was wilful. The expression 'breach' occurring in section 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 insurer has also to satisfy that such violation or infringement on the part of the insured was wilful. Unless it is established on the material on record that it was the insured who had wilfully vitiated 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-section (1) of section 96 of the Motor Vehicles Act, 1939. 8. The general rule as to the onus of proof and the consequent obligation of beginning is, that the proof of any particular fact lies on the party who alleges it. This rule is derived from the Roman Law, and is supportable not only upon the ground of fairness, but also upon that of the greater practical difficulty which is involved in proving a negative than in proving an affirmative. He who invokes the aid of the law must establish his case and if leaves, it imperfect the court will not assist him. Hence the maxim : 'Patior est conditio defendantis' (The condition of defendant is better). Words are but the expression of fact, and, therefore, when nothing is said to be done, nothing can be said to be proved; which is probably what is meant by the maxim 'per rerum naturam, factum negantes probatis nulla est.' 9. In the case of Smt. Ratna Ganguly v. Ranjeet Kumar Gangoli, 1987 (1) RLR 493 this court (Hon'ble Mr. Justice G.M. Lodha J. as he then was) indicated thus (Para 9) "It has been repeatedly held by this court and other High Courts also in such matter the burden of proving that there was no driving licence lies with the insurance company and merely because the driver cum owner comes with the plea that there was no driving licence it cannot be held that this burden has been discharged. In Bheru v. Nand Ram, 1980 ACJ 513 and New India Assurance Co. v. Sushila Devi, 1981 ACJ 119 this principle has been repeatedly asserted, established and enunciated and emphasised by this court. In Bheru v. Nand Ram, 1980 ACJ 513 and New India Assurance Co. v. Sushila Devi, 1981 ACJ 119 this principle has been repeatedly asserted, established and enunciated and emphasised by this court. In the instant case the insurance company has not made any attempt or effort to prove that the truck driver had no driving licence. Contrary to it, it has only been contended by the driver or owner of the truck." 10. In the case on hand as already stated, Madan Lal (DW. 1), the witness examined by the appellant Insurance Company categorically stated that he did not serve notice on the Tractor owner. The Insurance Company with the help of the statement of Madan Lai, could only establish before the Tribunal that driver Misru at the time of accident was not holding the driving licence. But this fact in itself is not sufficient to hold the insured guilty of infringement or violation of promise. To hold the insured guilty, the appellant Insurance Company had to established that the insured had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle. Had the notice been served on the Tractor owner intimating him that he wilfully violated the condition of the policy by allowing driver Misru, not duly licensed to drive the Tractor, the fact situation would have been different and in that event the Tractor owner would have to prove his case by entering in the witness box. The insured in the instant case pleaded in the written statement that driver was holding the licence and therefore the Insurance Company had to establish wilful violation on the part of the insured. The appellant Insurance Company having failed to plead and prove that the insured wilfully violated the condition of the policy, cannot escape from the obligation to indemnify the insured. 11. In view of what I have discussed herein above, the appeals have no merit and stand dismissed without any order as to costs.Appeals Dismissed. *******