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2012 DIGILAW 469 (ALL)

United India Insurance Co. Ltd. v. Aliya Begum

2012-02-22

RAJIV SHARMA, SATISH CHANDRA

body2012
JUDGMENT Rajiv Sharma and Satish Chandra, JJ. 1. The present appeal is filed by appellant, namely, United India Insurance Co. Ltd., against the award/judgment passed by the Motor Accidents Claims Tribunal, Pratapgarh on 25.4.1992 in Claim Petition No. 7 of 1990 whereby a compensation of Rs. 98,000 was awarded in favour of the claimants-respondents. The brief facts of the case are that on 3.1.1990, at about 8 p.m., at village Rajanpur, P.S. Kunda, District Pratapgarh, the opposite party No. 7 Shakiluddin was driving the tractor No. UTO 8681 while Sohrab Khan was working as labourer on the said tractor for loading and unloading of manure and was injured due to rash and negligent driving of the said tractor. Subsequently, the victim died due to the injuries caused in the accident in question. It was claimed that deceased was earning Rs. 800 per month, so the claim petition was filed for Rs. 1,60,500. However, after examining the entire evidence, the Claims Tribunal has awarded compensation of Rs. 98,000 in favour of the claimant widow and minor children and against the appellant insurance company. Being aggrieved, the appellant insurance company has filed the present petition. 2. We have heard Mr. Vinod Kumar, the learned counsel for the appellant, and Mr. Ajmal Khan, learned counsel for the opposite party No. 1, and gone through the material available on record. The factum of the accident and death of the deceased are not in dispute. 3. The sole argument advanced by the learned counsel for the appellant insurance company is that the tractor was plying by violating the terms and conditions of the insurance policy, as it was being used for the commercial purpose. So the insurance company is not liable to pay any compensation. For this purpose, learned counsel for the appellant insurance company relied upon the ratio laid down in the cases of Kapoor Chand v. Nemi Chand, 2006 ACJ 958 (Allahabad); and Jayraj v. Kaluram, 2006 ACJ 636 (MP). 4. On the other hand, learned counsel for the claimants-respondents submits that the accident was caused by the tractor and tractor alone cannot be used for commercial purpose. There was no attachment with tractor in question at the time of accident. 5. From the perusal of the record, it appears that the tractor driver was holding a valid driving licence at the time of accident. There was no attachment with tractor in question at the time of accident. 5. From the perusal of the record, it appears that the tractor driver was holding a valid driving licence at the time of accident. The deceased was labourer who was travelling on the tractor in question and the same was comprehensively insured by the appellant insurance company. In the night, the tractor was not engaged for the commercial purpose as no trolley was attached to it as alleged by the learned counsel for the claimants-respondents. Regarding the breach of terms of insurance policy, the Hon'ble Apex Court in the case of Skandia insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), has observed as under: ...The expression 'breach' is of great significance. The dictionary meaning of 'breach' is 'infringement or violation of a promise or obligation'. [See Collins English Dictionary]. It is, therefore, abundantly clear that insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is not duly licensed will not be in-charge of the vehicle. The very concept of infringement or violation of the promise that the expression 'breach' carries within itself induces an inference that violation or infringement on the part of the promisor must be a wilful infringement 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 or 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. Not when some mishap occurs by some mischance. 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. Not when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of a licensed driver, with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. And it is only in case of a breach or a violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause. In a way the question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine. The discussion made in para 239 of Breach of Contract by Carter, 1984 Edn., under the head Proof of Breach, gives an inkling of this dimension of the matter: Exculpation of a promisor.--Given a presumption of absoluteness of obligation, a promisor who is alleged to have failed to perform must either prove performance or establish some positive excuse for any failure on his part. In other words, he must find exculpation from what is presumed to be a breach of contract, either in the contract itself or in some external rule of law. There are five grounds for exculpation: construction of the contract; the doctrine of frustration; the existence of an implied term; the presence of an exclusion clause; and the application of a statutory rule or provision. These will be considered later. 6. In the instant case, the insurance company has not led any evidence to prove that the injured person was a gratuitous passenger, so the insurance company cannot be exonerated from its liability. In view of above, we do not find any infirmity and illegality in the impugned judgment and order passed by the Tribunal. The same is hereby sustained along with the reasons mentioned therein. The amount, if any, deposited in this court shall be remitted to the concerned Tribunal along with lower court record within a period of four weeks. The appeal is dismissed being devoid of merit.