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2005 DIGILAW 360 (KAR)

SRI PITAMBAR M. TANDEL v. SMT. ASHWINI ASHOK NAIK

2005-06-10

K.SREEDHAR RAO

body2005
K. SREEDHAR RAO, J. ( 1 ) THE Petitioners in MVC Nos. 233/98 and 235/98 have suffered personal injuries in a motor vehicle accident. The Tribunal awarded compensation of Rs. 41000/- in MVC 233/98 and Rs. 42000/- in MVC 235/98 with interest at 8% P. A. , The Tribunal exonerated the liability of the insurer and directed the owner of the vehicle to pay the compensation. The owner is in appeal challenging the dismissal of the case as against the insurer. The respondent-insurer had filed an application under Order 41 Rule 27 r/w. Section 151 of CPC. , for production of motor claim form submitted by the owner as additional evidence. The request is granted. Document taken on record as evidence. ( 2 ) THE owner has lodged FIR immediately after the accident. In the FIR, it is stated that his relative was taking the vehicle outside the compound and in that process caused injuries to the petitioners. The manner of accident in the claim form is stated that-"on 20. 5. 1998, my relative V. Krishnaraj T. Tandan while taking my vehicle from my gate, accidentally one woman and child are injured at the same time, my driver Mr. Kostan S. Fernandes was sitting with Krishnaraj T. Tandan. " The injured in the criminal case has not indicated the accused as the driver of the vehicle at the time of accident. The Criminal Court has acquitted the accused on the ground that the prosecution has failed to prove the accused was the driver, who caused the accident. ( 3 ) SRI A. M. Venkatesh, Learned Counsel for the insurer strenuously contended that the contents of the FIR lodged by the owner clearly discloses that the V. Krishnaraj T. Tandan was driving the vehicle and that he had no valid driving licence. Therefore, the insurer is not liable to pay the compensation. ( 4 ) PER contra, the Learned Counsel for the appellant submitted that the insurer has failed to prove the conscious breach of the terms of policy. There is no evidence placed by the insurer that the owner has entrusted the vehicle to the unlicenced driver. Therefore, the insurer is liable to pay compensation without right of recovery. ( 5 ) THE contents of FIR and the contents of claim form, nowhere disclose that the owner has consciously entrusted the vehicle to the unlicenced driver. There is no evidence placed by the insurer that the owner has entrusted the vehicle to the unlicenced driver. Therefore, the insurer is liable to pay compensation without right of recovery. ( 5 ) THE contents of FIR and the contents of claim form, nowhere disclose that the owner has consciously entrusted the vehicle to the unlicenced driver. On the other hand, the contents of claim form relied on by the insurer in evidence discloses that the owner has taken all necessary precautions in engaging an authorised driver. According to the claim form, the authorised driver was present in the vehicle at the time of accident. The owner was not present at the time when the vehicle caused the accident. The vehicle was in the custody of the licenced driver, if the licenced driver permit authorisedly, it will not exonerate the liability of the insurer and such a situation would not amount to breach of policy conditions by the owner as held by the Supreme court in the case of Skandia Insurance Co. Ltd. , v. Kokilaben Chandra Vadan and Ors. , AIR 1987 SC 1184 ( 6 ) THEREFORE, the finding of the Tribunal that the insurer has committed conscious breach is bad in law. The insurer when he fails to prove conscious breach, the insurer has no right of recovery from the insured. ( 7 ) ACCORDINGLY, the judgment and award dismissing the claim against the insurer is set aside. The appeals are allowed. It is directed that the insurer shall pay the compensation awarded by the tribunal.