Md. Jober Ali vs National Insurance Co. Ltd. and Another

J.N. Sarma, J.—This appeal has been filed against the award dated 29.2.1996 passed in M.A.C. Case No. 408 (k) of 1998 by the Member, M.A.C.T., Kamrup at Guwahati. The award earlier passed for an amount of Rs. 1,07,000 with interest at the rate of 15 per cent from the date of the claim till deposit is made in favour of the claimant and it was passed against opposite party Nos. 1 and 2, the owner and the driver but it was not passed against the insurance company, i.e., the National Insurance Co. Ltd. on the ground that the vehicle was driven not by the licensed driver but by the conductor having no valid driving licence. It was not established before the Tribunal that the conductor was allowed or engaged by the owner of the vehicle to drive it nor it was established that this was done with the knowledge of the owner. In spite of it, the liability was not thrust on the insurance company. The only document which was produced before the Tribunal by the insurance company is a document tagged at page 33 of the Paper Book, the pro forma of the insurance policy wherein terms, etc., are not available. It only shows the payment of amount of premium. The sum insured was Rs. 3,00,000. The vehicle was insured for passengers and it covered third party risk also.

The law on this point regarding driving of vehicle by unauthorised person has been settled by the recent decision of the Apex Court in Sohan Lal Passi Vs. P. Sesh Reddy and others, In that case before the Apex Court also a plea was taken on behalf of the owner that he has appointed a driver to drive the vehicle, if the said driver allowed the cleaner-conductor of the bus to drive the vehicle without any authority from the appellant then in that event the appellant shall not be liable to pay any compensation to the heirs and legal representatives of the victim. That contention was rejected by the Supreme Court and it held as follows:

(i) The crucial test is whether the initial act of the employee was expressly authorised and lawful. Then the employer shall nevertheless be responsible for the manner in which the employees, that is, the driver and the cleaner-conductor executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation.

(ii) 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 the Tribunal or the court that such violation or infringement on the part of the insured was wilful. Unless it is established on the materials on record that it was the insured who had wilfully violated 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 Act. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed then the insurance company cannot repudiate its statutory liability under Sub-section (1) of Section 96.

To the same effect is the decision of the Apex Court in United India Insurance Co. Ltd. Vs. Gian Chand and others, wherein the Supreme Court in para 8 has pointed out as follows:

In order to resolve this controversy between the parties, it must be observed at the outset that the aforesaid decisions clearly indicate two distinct lines of cases. The first line of cases consists of fact situations wherein the insured are alleged to have committed breach of the condition of insurance policy, which required them not to permit the vehicle to be driven by an unlicensed driver. Such a breach is held to be a valid defence for the insurance company to get exonerated from meeting the claims of third parties who suffer on account of vehicular accidents which may injure them personally or which may deprive them of their breadwinner on account of such accidents caused by the insured vehicles. The other line of cases deals with the insured owners of offending motor vehicles that cause such accidents wherein the insured owners of the vehicles do not themselves commit breach of any such condition and hand over the vehicles for driving to licensed drivers who on their own and without permission, express or implied, of the insured, hand over vehicles or act in such a way that the vehicles get available to unlicensed drivers of being driven by the latter and which get involved in vehicular accidents by the driving of such unlicensed drivers. In such cases the insurance company cannot get benefit of the exclusionary clause and will remain liable to meet the claims of third parties for accidental injuries, whether fatal or otherwise. The decisions of this court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC) and in Sohan Lal Passi Vs. P. Sesh Reddy and others, represent this second line of cases while the decisions of this court in New Indian Assurance Co. Ltd. Vs. Mandar Madhav Tambe and others, and in Kashi-ram Yadav v. Oriental Fire & Genl. Ins. Co. Ltd. 1989 ACJ 1078 (SC), represent the first line of cases.

That being the position of law, in this particular case it was not established by the insurance company by adducing evidence that there was breach of the terms by the insured. Accordingly, insurance company shall be liable for the amount and the entire amount awarded shall be the liability of the National Insurance Co. Ltd. but the rate of interest will be 12 per cent. The insurance company is granted four months time to deposit the amount before the Tribunal. On such deposit being made, the amount shall be paid to the claimant by way of crossed cheque to be handed over to the claimant on being properly identified. The appeal is disposed of as indicated above.

Heard Mr. C. Choudhury, learned advocate for the appellant and Mr. R.K. Bora, learned advocate for the insurance company and none appeared for the other respondents.