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Judgment
K. Govindarajulu
Respondent No.1 in MVC No. 1446/2007 on the file of MACT, Small causes. Bangalore, SCC-IV, is the appellant.
It is the ease of the claimants - respondent Nos. 1 & 2 herein that one L. Krishnappa while travelling as a passenger in a Mini-bus -Tata 407 vehicle bearing Regn. No.KA-06/5730 near Eradimmamana kanive, the driver of the vehicle has lost control over the bus it resulted in the accident. L. Krishnappa, was thrown out of the bus, died at the spot.
It is the further case of the claimants that the deceased was working as an Operator in FCIOEN contract Ltd., earning Rs.8,000/- per month, so they have lost the earning member in the family. So, pray for compensation of Rs.25 lakhs.
The respondent No. 1 has contended that the driver of the offending vehicle did not possess valid and effective driving licence as on the date of the accident. Admit the subsistence of the policy. Contend that the liability is strictly in terms of the policy. Further contend that as there is a violation in the terms of the policy, the company should be absolved from paying the compensation.
After framing of the issues, one of the claimant is examined as PW-1, representative of the Insurance Company is examined as RW-1, exhibits P1 to P11 and R1 to R4 are marked. The learned member of tile Tribunal has awarded compensation of Rs.4,10,000/- with interest at 6% pa. The liability is fixed on the Insurance Company to pay the compensation.
The learned advocate for the Insurance Company contend that the policy holder is Narayanaswamy, the contract carriage holder was Muniraju. Muniraju is neither the insured nor the owner of the Mini-bus in question as on the date of the accident. So, there is a breach of the condition in the contract. Further the vehicle has a permit only to use as a contract carriage but it is used as a Stage carriage. So, the company is not liable to pay the compensation. So, pray for allowing the appeal.
The learned advocate for the Insurance Company place reliance on the decision rendered by this court in MFA No. 1204, 1205/2008 C/w MFA 1624/2008, contend that this court has considered the subject, and absolved the company from paying the compensation in similar circumstances. So, place reliance on the said findings.
Learned advocate for the claimant place reliance on the rulings in Rikhi Ram and Another Vs. Smt. Sukhrania and Others, contend though the vehicle is not transferred according to the particulars in the policy of the Insurance Company, the company is liable to pay compensation.
First point to be considered is whether the violation of the terms of the permit i.e. using the vehicle with the permission of a contract carriage as a stage carriage would enure benefit to the Insurance Company, this court in the division bench ruling in K.G. Srinivasamurthy Vs. Habib Khathun and Others, has held that such a violation of the terms of the policy will not absolve the Insurance Company from paying the compensation.
A similar subject of the driver did not had valid driving licence, so the company should be absolved from paying the compensation is considered by this Court in United India Insurance Company Limited Vs. Yusuf Hasansab Gokak and Others, This court has held that the breach of a condition by the insured will not come in the way of the third party claiming the compensation from the Insurance Company. It is opt to refer to the ratio of this decision. Para 9 of the aforesaid judgment is extracted hereunder:
This stands answered by the apex court in Swaran Singh''s case supra. The breach of a licensing condition not being the proximate cause for the accident, the insurer cannot escape the liability to pay the compensation. The liability intense as between the insurer and the insured may be independently adjudicated. In the present case, the insurer may avail of such a remedy before a civil court to seek reimbursement from the insured if a willful breach of the policy condition is established.
The next ground urged is the policy is not issued in the name of the person who is in possession of the vehicle. This subject is considered by the court in Writ Petition No.3801/2006 disposed of on 6.8.2008 (United India Insurance Co. Ltd., vs. Vijayakumar & Others), wherein this court has held that issuing of the policy is the criteria and not the person in whose name it is there. The second submission is also without any merit, so it is rejected.
Accordingly, the appeal is dismissed.