Kala alias Ashok Kumar and Another vs Dharampal and Another

J.V. Gupta, J.—This appeal is directed against the award of the Motor Accidents Claims Tribunal, Sonepat (hereinafter called ''the Tribunal''), dated May 4, 1983 whereby a sum of Rs. 9,600/- with interest at the rate of 6 per cent per annum has been allowed on account of the death of Loveli, aged about 3Vi years, due to the rash and negligent driving of truck No. MRA 3453, belonging to Dayal Chand, Respondent.

The only controversy in this appeal is: whether the insurance company is liable for the payment of the compensation awarded or not.

According to the learned Tribunal, Ashok Kumar alias Kala, who was found to be driving the offending truck, was not holding any driving licence at the time of the accident, so in terms of proviso attached to the conditions of driving contained in the insurance policy, Exh. R-2, the insurance company was not liable to pay any compensation. The owner of the truck was, thus, held liable for payment of the compensation amount. Thus, the owner of the offending truck has filed this appeal.

The Learned Counsel for the Appellant contended that the insurance company never took any specific plea in the written statement that the driver of the truck, Kala alias Ashok Kumar, was not holding a valid licence. Apart from that, no such issue was claimed before the Tribunal. Thus, argued the Learned Counsel, in the absence of any specific plea and the issue to that effect, the insurance company could not be absolved of the liability. In support of the contention, the Learned Counsel relied upon the Supreme Court decision in Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, . On the other hand, the Learned Counsel for the insurance company submitted that the plea was taken in the written statement and Kala, while appearing in the witness-box as RW 1, admitted that he had no driving licence as he was a conductor. Thus, argued the Learned Counsel, in view of this evidence, it has been rightly held by the Tribunal that as per the terms of the insurance policy, the insurance company was not liable. The liability, if any, was of the owner of the offending truck. In support of the contention, the Learned Counsel relied upon Venkatachalam v. Sundarambal Ammal 1983 ACJ 513 (Mad); Ambujam v. Hindustan Ideal Ins. Company 1981 ACJ 175 (Mad) and Damodar Singh v. Draupadibai 1984 ACJ 589 (MP).

I have heard the Learned Counsel for the parties and have also gone through the relevant evidence on the record.

In the written statement filed on behalf of the insurance company, the plea taken was that the answering Respondent is not liable to pay any compensation whatsoever to the Petitioner in the event it is found that Respondent No. 1 was not holding a valid driving licence and not in the employment of Respondent No. 2. According to the claim petition, Kala alias Ashok Kumar was driving the offending truck which was owned by his father Dayal Chand who was also sitting in the truck at the relevant time. According to the statement of Kala alias Ashok Kumar who appeared as RW 1, the truck was being driven by his father Dayal Chand, but in any case, it has been found by the Tribunal that the truck was being driven by Ashok Kumar who was not holding a driving licence. In Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, , it has been held by the Supreme Court:

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 the 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 promissory must be a willful 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, then 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 promissory (the insured) committed a breach of his promise. Not when some mishap occurs by some mischance.

In the above said case, the driver had left the vehicle with its engine running with the ignition key in the ignition lock and thus the driver had handed over the truck to the cleaner who had caused the accident. It is on these facts that the insurance company was held liable. As regards the facts of the present case, the insurance company never pleaded that it was the insured who was at fault and had allowed his son, i.e., Kala alias Ashok Kumar, to drive the offending vehicle against the terms of the policy. In the absence of any such plea, it could not be held that the insurance company was not liable for the payment of the amount of compensation awarded. The judgments relied upon by the Learned Counsel for the insurance company have no applicability to the facts of the present case and in view of the decision of the Supreme Court in Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, .

Consequently, this appeal succeeds and is allowed to the extent that the liability of the insurance company and the owner of the truck will be joint and several for the payment of the amount awarded. No costs.