Zora Singh vs Dalip Kaur and Others

Manmohan Singh Liberhan, J.—The short question which arises in this appeal, preferred by the owner of the ill-fated truck is whether the insurance company is liable for the compensation payable to the claimants.

The brief undisputed facts on which the above question arises are: that Smt. Dalip Kaur, claimant, claimed that the deceased, Kesar Singh, had been killed on April 11, 1982, at 7.15 a.m. on account of rash and negligent driving by Banta Singh of truck No. PBP 6313 owned by Zora Singh.

The Tribunal found that only Zora Singh and Banta Singh were liable to pay compensation to the claimant amounting to Rs. 29,000 for causing death by rash and negligent driving by Banta Singh, who had no driving licence on the date of accident. The insurance company was absolved from its liability solely on the ground of absence of a driving licence with Banta Singh. It was further found that Banta Singh was employed by Zora Singh as a labourer on the truck.

Learned counsel for the parties have not challenged the finding either on negligence or on the quantum of compensation.

The appellant, Zora Singh, stated in his written statement that the truck was stolen but he did not stick to his guns when he appeared in the witness box. The only stand taken by him while appearing as R.W. 1 is:

"The control of the vehicle was in the hands of my son, Raj Singh, who had a driving licence on April 11, 1982."

There is no cross-examination with respect to the said statement of fact nor has any evidence been led to controvert the said fact. Though Banta Singh, while appearing as R. W. 2, denied that he was driving the truck, the same is of no consequence. Counsel for the appellant contends that even assuming that Banta Singh was driving the truck without any licence, it is of no consequence qua the liability of the insurance company. He contends that in the absence of any evidence on record that Banta Singh was ever authorised by the owner of the truck, Zora Singh, to drive it in express violation of the policy of insurance, the insurance company cannot be absolved of its liability. He relies upon Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, , wherein their Lordships of the Supreme Court have observed as under (p. 146):

" 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, 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. (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 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 hot 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, that 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 the 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 promisor (the insured) committed a breach of his promise. Not when some mishap occurs by some mischance."

In view of the unrebutted evidence and no reasons having been pointed out to disbelieve Zora Singh, R.W. 1, I am of the view that the owner of the truck took all possible steps to hand over the vehicle to a person having a valid driving licence. He cannot be held guilty of breach of promise made by him under the policy of insurance. Not even a suggestion has been put to him that he placed the truck under the control of Banta Singh. There is not an iota of evidence on record to show that the owner had committed any breach of promise. As observed by their Lordships of the Supreme Court, the onus of proof of breach of promise was on the insurance company which it has failed to discharge. Relying on the statement of R.W. 1, I am of the view that the insurance company cannot successfully contend that it was exonerated from its liability for any breach of the terms of the insurance policy.

Learned counsel appearing for the insurance company has relied upon Rajinder Singh Jasbir Singh v. Urmil New India Assurance Co. Vs. Smt. Basanti and Others, and New India Assurance Co. Ltd. Vs. Shakuben and Others, All these judgments have not noticed the judgment of their Lordships of the Supreme Court in Skandia Insurance Co.''s case [1987] 62 Comp Cas 138, and apart from this, the judgments are pari materia neither on the facts nor on the law involved in this case. In view of my finding above, the law laid down in these judgments is not attracted.

In view of my above observations, I accept the appeal, modify the award of the Tribunal and hold that the truck owner, Zora Singh, its driver, Banta Singh, as well as the insurance company are jointly and severally liable to pay the compensation to Smt. Dalip Kaur, claimant. The claimant shall be entitled to costs which are assessed at Rs. 500.