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Madhya Pradesh High Court · body

2009 DIGILAW 331 (MP)

Sambhu Dayal v. New India Assurance Company Ltd.

2009-03-16

A.M.NAIK

body2009
ORDER 1. Short facts involved herein are that the offending tanker driven by respondent No.2 and owned by the present appellant was being taken reverse at 8:00 a.m. on 9.3.1998 when the deceased Sona aged abount 1/2 year was hit by it. She died on the spot. Tanker was insured with respondent No. 1/ Company. A claim petition was submitted which vide impugned award dated 8.3.1999 passed in Claim Case No.57/98 by the I Add 1.M.A.C.T., Sagar was allowed to the tune of Rs.52,000/- with interest @ 12% per annum. Payment was to be made within 30 days and in case of failure interest was made payable @ 15% per annum. However, the Insurance Company was exonerated on the ground that the respondent No.2 was not having a valid driving licence at the time of occurrence of the accident. 2. Learned counsel for the appellant submitted that respondent No.2 was having a valid driving licence when he was employed by the appellant. In the light of this it is contended that the exoneration of the Insurance Company is not sustainable in law, since, the appellant had taken requisite care to engage respondent No.2 who was at that time having a valid driving licence. 3. Ms. Surabhi Nigam, learned counsel for respondent contended that the tanker was a heavy transport vehicle and respondent No.3 was authorised to drive heavy transport vehicle w.e.f. 6.5.1998. The accident having taken place on earlier date, respondent No.2 cannot be said to have a valid driving licence prior to 16.5.98. 4. Considered the submissions and perused the record. 5. Contention of the appellant is that he took due care while engaging Sahdeo Singh that he was having a driving licence. 6. Reliance has been placed on the decision of Supreme Court of India in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and others 1987 JLJ 662 = (1987) 2 SCC 654 to contend that due care having been taken while engaging Shahdeo Singh as driver, Insurance Company cannot be immuned from the liability. In Skandia's case (Supra) the insured had permitted only the driver who was admittedly a licensed driver. It was the driver's negligence in leaving the vehicle with its engine running with the ignition key in the ignition lock which gave the cleaner of the vehicle a chance to drive the vehicle which resulted into the accident. In Skandia's case (Supra) the insured had permitted only the driver who was admittedly a licensed driver. It was the driver's negligence in leaving the vehicle with its engine running with the ignition key in the ignition lock which gave the cleaner of the vehicle a chance to drive the vehicle which resulted into the accident. The insured did not give permission to the cleaner to drive the vehicle. Therefore, it was held that the insured was not guilty of breach of promise that the vehicle will be driven by licensed driver. 7. Normally, this contention could have been accepted had there been no involvement of Tanker in transportation of goods of dangerous/hazardous nature. Clause (a) of sub-section (2) of section 14 of the Motor Vehicles Act, 1988 runs as under: (a) in the case of a licence to drive a transport vehicle, be effective for a period three years: [Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal there of shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]. 8. In the present case, it is true that while engaging respondent No.2, the insured (i.e. the appellant) was made aware that the former was having a valid driving licence. According to the version of the insured himself, he was apprised of EX./D-3 as a driving licence of respondent No.2. Insured at that time was required to do every thing within his power to ensure that the vehicle is being handed over to a person having valid driving licence as per category of vehicle. It is quite apparent from EX./D-3 that firstly, it was an authority/licence for driving LMV (light motor vehicle) from 27.2.1987 to 26.6.1992.It is shown to have renewed from 27.1.1993 to 26.1.1998. At the bottom, it is shown to have renewed from 27.1.1998 to 26.1.2003. The digit 3' appears to have been written over digit' 1'. This over-writing is quite apparent by naked eyes. Due care on the part of appellant would mean that he ought to have been careful for accepting any such over-written document after due verification. It is nowhere stated by him that he got this document (Ex./D-3) verified duly before its acceptance. This over-writing is quite apparent by naked eyes. Due care on the part of appellant would mean that he ought to have been careful for accepting any such over-written document after due verification. It is nowhere stated by him that he got this document (Ex./D-3) verified duly before its acceptance. In any case, these all endorsements are meant for light motor vehicle whereas an additional endorsement is contained in EX./D-3 to the effect that respondent No.2 was authorised to drive HTV (heavy transport vehicle) from 16.5.1998. It was made valid upto 15.5.2009.In view of this, the respondent No.2 was not authorised licensed to drive a heavy transport vehicle before 16.5.1998. I may successfully quote paragraph14 from the decision of Skandia's case (Supra):- "Section 96(2) (b)(ii) extends immunity to the Insurance Company if a breach is committed of the condition excluding driving by any named person or persons or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The expression 'breach' is of great significance. The dictionary meaning of 'breach' is "infringement or violation of a promise or obligation". It is therefore abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is duly licensed will have to be in charge of vehicle. The very concept of infringement or violation of the promise that the expression 'breach' carries within itself induces an inference that the violation or infringement on the part of the promisor must be a wilful infringment or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the Insurance Company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise of infringement of the contract. It must be established by the Insurance Company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise of infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise." 9. Accident took place on 9.3.1998 when the respondent No.2 was not authorised to drive heavy transport vehicle even as per EX./D-3. Tanker, being a heavy transport vehicle, it cannot be said that respondent No.2 was having a valid driving licence to drive a tanker carrying petrol. Other endorsements on Ex./D3, even if, they are taken on their face value, at the most conferred a right on respondent No.2 to drive merely a light motor vehicle and not a heavy transport vehicle like a tanker with dangerous/ hazardous matter. Thus, the insured has clearly committed a breach within the meaning of Skandia's decision by handing over the Tanker (heavy transport vehicle) carrying petrol to Sahdeo Singh who was neither having valid driving licence for heavy transport vehicle on the date of accident nor was having a valid driving licence as per clause (a) of sub-section (2) 0 Section 14 of the Motor Vehicles Act, 1988. This being so, it cannot be said that learned M.A.C.T. has committed any wrong in holding that the offending vehicle was not being driven at the relevent time by respondent No.2 under a valid driving licence. 10. In the result, the Insurance Company is found to have been rightly exonerated from liability. There being no force in the appeal, the same is hereby dismissed, however, without costs.