PURUSHOOTAM KUMAR JAIN vs Oriental Insurance Co. Ltd.

THIS is a complainant''s appeal against the order dated 28.8.1998 passed in Case No. 796/1997 by the District Consumer Disputes Redressal Forum, Raipur (for short the ''District Forum'').

FACTS giving raise to this appeal are thus : the appellant''s vehicle Tata 407 bearing registration No. M.P. 23 D 2715 comprehensively insured vide policy No. 15231/31/02681/92 covering the risk for the period from 9.6.1996 to 8.7.1997 met with an accident on 1.8.1996 at National Highway No. 43, between Dhamtari and Charama, District Durg when the driver lost balance as a result of which it dashed with the tree and over-turned. Driver Pradeep Singh died at the spot while cleaner Santosh and coolie Vimal received severe injuries. On the First Information Report lodged at Police Station Gurur, District Durg a case under Section 304A, I.P.C. was registered against Santosh Kumar who is alleged to have been driving the vehicle at the time of accident. After investigation charge sheet was filed in Crime Case No. 945 of 1996 in the Court of Judicial Magistrate, First Class, Balod, District Durg wherein he denied the charges. During the pendency of the criminal case Santosh committed suicide on 29.4.1997, wherein death certificate has been filed with an application under Order 41 Rule 27, C.P.C. The appellant lodged the claim with the Insurance Company. Spot survey was made by S.K. Ahuja. Final survey was made by Mr. Prakash Chand Jain, who vide report dated 8.9.1996 assessed the net amount payable of Rs. 39,997/-. The Insurance Company appointed Investigator Mr. G.R. Mahadik who vide report dated 15.5.1997 concluded that at the time of accident, Santosh, cleaner was driving vehicle. On the basis of this report the Insurance Company vide letter dated 10.7.1997 repudiated the claim.

The appellant filed the complaint alleging deficiency in service and submitted that the driver was Pradeep Singh who at the time of accident was driving the vehicle and not Santosh Kumar. Santosh Kumar denied the charge, who died during pendency of the criminal case. The appellant spent Rs. 84,130/- in repairs, therefore, the appellant is entitled to the same with interest and compensation thereon. The complaint was resisted. The District Forum after appreciation of evidence held that in view of the pendency of the criminal case, pending against Santosh Kumar and on the basis of the report of the Investigator, FIR, Challan papers, held that the Insurance Company bonafidely repudiated the claim.

AFTER hearing learned Counsel for the parties we are of the opinion that the repudiation of the claim in the circumstances of the case was not justified. In the requisition memo of post mortem, the Investigating Officer at page 2 has written that the vehicle was being driven by Pradeep Singh which met with an accident who received injuries in the head and was found dead on the spot. Santosh denied the charges who died during the pendency of the criminal case. There is no final outcome of the criminal case and that must have been abated because of the death of the accused. It is well-settled that the result of the Investigator or its report is not the evidence unless material collected during investigation is translated into legal evidence. See, the decisions of the Supreme Court in Virendra v. State of Delhi, JT 1999 3 (SC) 31, and Kaptan Singh v. State No. 738/1999 of M.P., AIR 1997 SC 2485, followed by the decision of this Commission in Appeal 1999 decided on 15.11.1999, Oriental Insurance Company Ltd. v. Surendra Kumar Chouksey.

IN the case in hand the appellant has filed affidavit of Vimal, the coolie who was in the vehicle who has stated on oath that at the time of accident the vehicle was being driven by Pradeep Singh and not by Santosh. The appellant has also stated that the deceased Pradeep Singh has employed his driver, if he has exercised his authority improperly and entrusted the vehicle to Santosh to drive the same, in that situation the INsurance Company cannot escape its liability. The question was considered by the Supreme Court in case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan & Ors., I (1987) ACC 1 (SC)=AIR 1987 SC 1184, for considering the liability of insurer to satisfy the claim of third party wherein the Supreme Court considered the scope of Section 96(2)(b)(ii) and observed in para 14 thus : "14. Section 96(2)(b)(ii) extends immunity to the Insurance Company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The expression ''breach'' is of great significance. The dictionary meaning of ''breach'' is ''infringement or violation of a promise or obligation''. 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 not (sic.) 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 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, 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 promise (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 insurer 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 insured 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. In view of this provision apart from the implied mandate to the licensed driver not to place a non-licensed person in charge of the vehicle, there is also a statutory obligation on the said person not to leave the vehicle unattended and not to place it in charge of an unlicensed driver. What is prohibited by law must be treated as a mandate to the employee and should be considered sufficient in the eye of law for excusing non-compliance with the conditions. It cannot, therefore, in any case be considered as a breach on the part of the insured. To construe the provision differently would to re-write the provision by engrafting a rider to the effect that in the event of the motor vehicle happening to be driven by an unlicensed person regardless of the circumstances in which such a contingency occurs, the insured will not be liable under the contract of insurance. It needs to be emphasised that it is not the contract of insurance which is being interpreted. It is the statutory provision defining the conditions of exemption which is being interpreted. These must, therefore, be interpreted in the sprit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim. To do otherwise would amount to nullifying the benevolent provision by reading it with a non-benevolent eye and with a mind not tuned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the Legislature has given, the Court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders, the provision impotent. In fact it appears that the former view is more plausible apart from the fact that is more desirable. When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the view same conclusion would emerge in obeisance to the doctrine of ''reading down'' the exclusion clause in the light of the ''main purpose'' of the provision so that the ''exclusion clause'' does not cross swords with the ''main purpose'' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose."

In case of Sohan Lal Passi v. P. Sesh Reddy & Ors., II (1996) ACC 617 (SC)=AIR 1996 SC 2627, the Supreme Court observed that where the owner of the bus had authorised the driver having valid driving licence to drive the vehicle, but the driver allowed the cleaner/conductor for having no driving licence and who was also the employee of the owner to drive the vehicle because of which the accident took place, the owner cannot escape the liability so far the third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. The negligent act of driver and cleaner was "in the course of employment" the owner shall be liable for the same. The accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly independent act for a purpose which had no nexus or connection with the business of the owner so as to absolve him from the liability. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. In view of the law declared by the Supreme Court in the cases referred above, applying the principle, in the own damage claim admittedly, the employer employed a licensed driver Pradeep Singh, who was driving the vehicle who was in control of the vehicle and even assuming for arguments sake he allowed Santosh to drive the vehicle, the Insurance Company cannot disown its liability to pay the own damage claim.

IN view of the above we hold that the appellant would be entitled to the amount of own damage claim of Rs. 39,997/- as assessed by the Surveyor with interest at the rate of 9 percent per annum in view of the recent pronouncement of the Supreme Court in case of S. Kaushnuma Begum & Ors. v. The New INdia Assurance Company Ltd. & Ors., I (2001) ACC 151 (SC)=I (2001) SLT 300=AIR 2001 SC 85, from the date of the repudiation of the claim that is 10.7.1997 and Rs. 1,000/- as costs of the proceedings throughout which shall be paid by the INsurance Company within a period of two months from the date of receipt of certified copy of this order failing which the interest shall be payable at the rate of 12 percent per annum on the amount of Rs. 39,997/-.

IN the result, the appeal is allowed. The order of the District Forum shall stand substituted as indicated hereinabove. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case. Appeal allowed.