Ram Phal vs Krishna Makkar and Others

Manmohan Singh Liberhan, J.—This appeal by the appellant as owner of the vehicle was admitted on the short question with respect to

liability of the Insurance Company. The questions of negligence and quantum have not been challenged in this appeal.

The Insurance Company was absolved of its liability solely on the ground that on the date of accident the driving licence of the insured had

expired. It is not disputed at the bar that the driver of the ill fated truck bad a valid licence upto 16-11-1984 and while the accident took place on

17-12-1984 and the licence was got renewed on 28-11-1986.

Counsel for the appellant contends that the reasoning adopted by the Tribunal in absolving the Insurance Company from its liability on the

ground that the driver did not have a valid driving licence on the date of accident, cannot be sustained in view of the fact that in the insurance Policy

Exhibit Rule 1, the condition imposed for making it liable reads as under:

Provided that a person driving helds a valid driving licence at the time of accident or had held a permanent driving licence and is not disqualified

from holding such a licence.

Counsel for the respondent has been unable to show that the driver was ever disqualified from holding such licence. He could not controvert that

the driver had held a permanent driving licence at the time of accident.

Counsel for the appellant has relied upon United India Fire & Gen. Insurance Co. Ltd. v. Avisa and Ors. 1979 ACJ 526, where in it bad been

held that the Insurance Company cannot avoid the liability as the driver of the vehicle who drove it had not been disqualified from holding the

licence and further found the company to be liable for an accident caused by the driver who at one time held a valid licence with him. The learned

Counsel further contends that in the absence of any evidence on the record that the insured had placed the vehicle in charge of a person who did

not have a driving licence, the insured cannot be held guilty of breach of promise and the Insurance Company cannot be absolved of its liability. In

order to buttress this submission, he relies upon Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Ors. 1987 (1) PLR 665 : I (1987)

ACC 413 (SC) wherein their Lordship of the Supreme Court has observed as under:

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

by any person who is not fully licenced, 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'' (See Collins English Dictionary). 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 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'' carriers within itself induces an inference that the violation of infringement on

the part of the promise 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 what vehicle in charge of a person who does not hold a driving licence, that it can be said that he is ''guility'' 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 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 the

breach the Insurer cannot escape from the obligation to indemnify the insured and successfully contended that he is exonerated having regard to the

fact that the promiser (the insured) committed a breach of his promise. Not when some mishap-pours by some mis chance.

There is not an iota of evidence on the record that the insured owner had ever committed any breach of the promise, rather there is a positive

evidence on the record to show that he handed over the vehicle to a driver who was holding a valid driving licence and he had taken alt possible

care not to commit any breach of the Policy. Counsel for the respondent was unable to controvert the submissions made by the counsel for the

appellant in which I find force.

In view of my above observations, the award of the Tribunal is modified and it is held that the owner, the driver as well as the Insurance

Company shall be liable for the compensation jointly and severally. The appeal is allowed with no order as to costs.