Oriental Insurance Co. Ltd. vs Rajinder Kumar and Others

V.K. Gupta, J.—This appeal is directed against the judgment and award dated 27-3-1991 passed by the learned Motor Accidents Claims

Tribunal Kathua, whereby an amount of Rs. 58,000/- was awarded as compensation by the Tribunal in favour of the claimants.

It is alleged that the deceased Ram Swaroop, who was the father and husband of the claimants, while on his way on a bicycle, was knocked

down and crushed on 28-2-1978 near Kathua by the person driving Bus No. JKN-6902. Even though the bus was not being driven by the regular

driver of the bus, it is alleged that Rajinder Kumar driver was instrumental in causing the accident because he has been driving the vehicle at the

time of accident. The following issues were framed by the Tribunal on 4-1-1985:--

Whether on 28-2-1978 at about 9.45 p.m. near Hatli More respondent No. 1 while acting under the employment of the owner of bus No.

JKN-6902 drove the said bus in a rash and negligent manner and caused the death of the deceased Ram Swaroop? OPP.

In case issue No. 1 is proved in the affirmative, to how much amount of com-pensation the petitioners are entitled and in what proportion from

each of the respondents? OPP.

Whether respondent No. 5 is not liable to indemnify the insured namely, respondent No. 6 in respect of the stated offending vehicle? OPR-5.

Relief.

The finding on issue No. 1 is correlated to the finding issue No. 3 because the liability of the appellant -- insurance company qua the

indemnification of the Award depends upon these two findings. The case of the appellant, before the trial Court, as well as before this Court, is that

the appellant was absolved of its liability to indemnify, because the person causing the accident did not possess a valid driving licence nor was he

the person insured with the appellant and because the vehicle was being driven without the authority of the insured, the appellant-insurer, was

absolved of its liability to pay the compensation amount. Realiance was placed upon a judgment of the Supreme Court reported in AIR 1986 SC

1697 (sic).

After hearing the learned counsel for the parties and perusing the record, I find that the Tribunal took a correct view about the issues involved in

the case on application of the judgment of the Supreme Court in Kashiram Yadav and Another Vs. Oriental Fire and General Insurance Co. and

Others, where, their Lordships of the Supreme Court while referring to the judgment in Skandia Insurance Co. Ltd. v. Kokilaban Chandravadan,

reported in 1987 ACJ 411 : AIR 1987 SC 1184 reported as under:--

The Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he

could be said to have committed breach of the condition of the policy. It must be established by the insurance company that the breach is on the

part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to in-

demnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed

driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any

breach.

We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by

drivers acts or omission others meddle with the vehicle and cause an acci- dent, the insurer would be liable to indemnify the insured. The insurer in

such a case cannot take the defence of a breach of the condition in the certificate or insurance.

Applying the aforesaid principle of law, the question raised by Mr. H. L. Chaudhry, learned counsel appearing for the appellant, as to whether the

accident occurred during the course, of, or within the scope of employment, loses its significance.

Admittedly, in the present case the vehicle was entrusted by the owner to its driver, who was a duly licensed driver, and if the licensed driver by

mistake, carelessness or omission or in neglect of his duties allowed the vehicle to be driven by a person, who was not a licensed driver, the

insured could not be blamed for this as he on his part had taken all care to ensure that the vehicle was entrusted to a licensed driver and if such a

licensed driver committed any breach, that could not be a ground available to the Insurer to avoid its liability.

I find myself in complete agreement to the approach arrived at by the Tribunal and see no reason to disagree with the findings arrived at. The

award is, therefore, upheld.

Appeal dismissed. No costs.