Karnataka High Court
M/S The Oriental Insurance Company ... vs Abdul Kaleel S/O Abdul Kalahk on 30 April, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NOs.1974/2009, 1975/2009, 1976/2009,
1977/2009, 1978/2009, 1979/2009, 55/2009,
10106/2008, 10107/2008 and 10108/2008 (MV)
MFA.NO. 1974/2009
BETWEEN:
M/s. The Oriental Insurance
Company Limited,
Leo Shopping Complex,
No.44/45, Residency Road,
Bangalore-560 001. ... Appellant
(By Sri.B.S.Umesh, Advocate)
AND:
1. Abdul Kaleel,
S/o Abdul Kalahk,
Aged about 29 years
Residing at Siddarthanagar Mason,
Mysore Road,
Bangalore.
2. M.Vishwanath,
S/o Murugappa,
Aged major,
Exact not known
No.L-20, 25th Main,
LIC Colony, JP Nagar,
2
1st phase, Bangalore-560 070. ...Respondents
(By Sri.N.S.Bhat, Advocate for R-2;
Smt.M.C.Umadevamma, Advocate for R-1)
This Appeal is filed Under Section 173(1) of MV
Act against the judgment & award dated 01.08.2008
passed in MVC No.191/2007 on the file of XIX,
Additional SCJ & Member, MACT, Bangalore, SCCH-17,
awarding a compensation of Rs.21,000/- with interest
at 6% p.a. from the date of petition till realisation.
MFA No.1975/2009
BETWEEN:
M/s. The Oriental Insurance Company Limited,
Leo Shopping Complex,
No.44/45, Residency Road,
Bangalore-01
Represented by its,
Regional Manager. ...Appellant
(By Sri.B.S.Umesh, Advocate)
AND:
1. S.Nagesh,
S/o Somaiah,
Aged about 22 years,
Occ: business
Residing at No.121,
Hosaguddadahalli,
Mysore Road,
Bangalore District.
3
2. M.Vishwanath
S/o Murugappa,
Aged major,
Exact not know
No.L-20, 25th Main,
LIC Colony,
JP Nagar, 1st phase,
Bangalore-560 070. ...Respondents
(By Sri.N.S.Bhat, Advocate for R-2;
Smt. M.C.Umadevamma, Advocate for R-1)
This Appeal is filed under Section 173 (1) of MV
Act against the judgment and award dated 1.8.2008
passed in MVC No.192/2007 on the file of XIX
Additional SCJ and Member, MACT, Bangalore SCCH-
17, awarding a compensation of Rs.30,000/- with
interest at 6 % p.a. from the date of petition till
realisation.
MFA No.1976/2009
BETWEEN:
M/s. The Oriental Insurance Company Limited,
Leo Shopping Complex,
No.44/45, Residency Road,
Bangalore-01
Represented by its,
Regional Manager. ...Appellant
(By Sri.B.S.Umesh, Advocate)
4
AND:
1. D.N. Manohar,
S/o D.Narayanappa,
Aged about 29 years,
Occ: Power loom
Residing at Dommasandra,
Sarjapura Road,
Bangalore.
2. M.Vishwanath
S/o Murugappa,
Aged major,
Exact not know
No.L-20, 25th Main,
LIC Colony,
JP Nagar, 1st phase,
Bangalore-560 070. ...Respondents
(By Sri.N.S.Bhat, Advocate for R-2;
R-1 served)
This Appeal is filed under Section 173 (1) of MV
Act against the judgment and award dated 1.8.2008
passed in MVC No.193/2007 on the file of XIX
Additional SCJ and Member, MACT, Bangalore SCCH-
17, awarding a compensation of Rs.40,000/- with
interest at 6% p.a. from the date of petition till
realisation.
MFA No.1977/2009
BETWEEN:
The Divisional Manager,
5
M/s. The Oriental Insurance Company Limited,
P.B.66, Gandhi Bazar Divisional,
Bangalore.
Through its Regional Office,
Leo Shopping Complex,
No.44/45, Residency Road,
Bangalore-01
Represented by its,
Regional Manager. ...Appellant
(By Sri.B.S.Umesh, Advocate)
AND:
1. C.Mallesh,
S/o Chikka Honnaiah
Aged about 40 years,
Residing at Byramangala,
Bidadi Hobli,
Ramanagara Taluk,
Bangalore District.
2. M.Vishwanath
S/o Murugappa,
Aged major,
Exact not know
No.L-20, 25th Main,
LIC Colony,
JP Nagar, 1st phase,
Bangalore-560 070. ...Respondents
(By Sri.Chandrashekar, Advocate for M/s Lawyers Net,
for R-1)
This Appeal is filed under Section 173 (1) of MV
Act against the judgment and award dated 4.8.2008
passed in MVC No.724/2007 on the file of XIX
6
Additional Judge, Court of Small Causes, Member,
MACT, Bangalore SCCH-10, awarding a compensation
of Rs.22,000/- with interest at 8 % p.a. from the date of
petition till realisation.
MFA No.1978/2009
BETWEEN:
The Divisional Manager,
M/s. The Oriental Insurance Company Limited,
P.B.66, Gandhi Bazar Divisional,
Bangalore.
Through its Regional Office,
Leo Shopping Complex,
No.44/45, Residency Road,
Bangalore-01
Represented by its,
Regional Manager. ...Appellant
(By Sri.B.S.Umesh, Advocate)
AND:
1. Asif Khan,
S/o Late Mohammedn Khan
Aged about 32 years
2. Sadiq Khan,
S/o Late Mohammedn Khan
Aged about 30 years
3. Jaffer Khan
S/o Late Mohammedn Khan
Aged about 28 years
4. Ilyaz Khan
7
S/o Late Mohammedn Khan
Aged about 24 years
5. Israth Bano
S/o Late Mohammedn Khan
Aged about 22 years
6. Shanthaj Banu
S/o Late Mohammedn Khan
Aged about 20 years
7. Shamma Taj
S/o Late Mohammedn Khan
Aged about 18 years
(Respondents 1 to 7 are all residing at
Handicraft Cross, Jevenpur Mohalla,
Channapatna Town,
Bangalore Rural District)
8. M.Vishwanath
S/o Murugappa,
Aged major,
Exact not know
No.L-20, 25th Main,
LIC Colony,
JP Nagar, 1st phase,
Bangalore-560 070.
9. Mohammed Haneef
S/o Noorulla,
Aged Major, No.12,
Rudrappa Compound,
H.Siddaih Road,
Bangalore. ...Respondents
(By Sri.N.S.Bhat, Advocate for R-8;
Sri.K.L.Srinivas, Advocate for R-1to R-7;
R-9 served)
8
This Appeal is filed under Section 173 (1) of MV
Act against the judgment and award dated 4.8.2008
passed in MVC No.732/2007 on the file of XIX
Additional Judge, Court of Small Causes, Member,
MACT, Bangalore SCCH-10, awarding a compensation
of Rs.2,19,900/- with interest at 6 % p.a. from the date
of petition till deposit.
MFA No.1979/2009
BETWEEN:
M/s. The Oriental Insurance Company Limited,
Leo Shopping Complex,
No.44/45, Residency Road,
Bangalore-01
Represented by its,
Regional Manager. ...Appellant
(By Sri.B.S.Umesh, Advocate)
AND:
1. Jagadish,
S/o Late Vishakantegowda
Aged about 37 years
Residing at Ammali Doddi,
Virupakshapura Hobli,
Channapatna Taluk,
Bangalore Rural District.
2. M.Vishwanath
S/o Murugappa,
Aged major,
9
Exact not know
No.L-20, 25th Main,
LIC Colony,
JP Nagar, 1st phase,
Bangalore-560 070. ...Respondents
(By Sri.N.S.Bhat, Advocate for R-2;
Smt.Sreevidya, Advocate for T.N.Vishwanatha for
R-1)
This Appeal is filed under Section 173 (1) of MV
Act against the judgment and award dated 25.8.2008
passed in MVC No.1718/2007 on the file of IX
Additional Judge, Member, MACT-7, Court of Small
Causes, Bangalore SCCH-7, awarding a compensation
of Rs.20,000 /- with interest at 8 % p.a. from the date of
petition till realisation.
MFA No.55/2009
BETWEEN:
Sri. Jagadish,
S/o Late Sri. Vishakantegowda
Aged about 36 years
Residing at Ammali Doddi,
Virupakshapura Hobli,
Channapatna Taluk,
Bangalore Rural District. ...Appellant
(By Smt. Sreevidya, Advocate for Sri.T.N.Vishwanatha,
Advocate and Sri.T.N.Ramesh, Advocate)
10
AND:
1. M/s. The Oriental Insurance
Company Limited,
Regional Office,
4th Floor, Leo Complex,
M.G.Road,
Bangalore-01.
2. Sri.M.Vishwanath
S/o Sri.Murugappa,
Major,
R/at No.L-20, 25th Main,
LIC Colony,
JP Nagar, 1st phase,
Bangalore-560 070. ...Respondents
(By Sri.N.S.Bhat, Advocate for R-2;
Sri.B.S.Umesh, Advocate for R-1)
This Appeal is filed under Section 173 (1) of MV
Act against the judgment and award dated 25.8.2008
passed in MVC No.1718/2007 on the file of IX
Additional Judge, Court of Small Causes, Member,
MACT-7, Bangalore partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
MFA No.10107/2008
BETWEEN:
Sri.M.Vishwanath,
S/o Sri.Murugappa,
Major,
11
R/at No.L-20, 25th Main,
LIC Colony,
JP Nagar, 1st phase,
Bangalore-560 070. ...Appellant
(By Sri.N.S.Bhat, Advocate)
AND:
1. S.Nagesh,
S/o Somaiah,
Aged about 24 years,
Occ: Business,
No.121, Hosaguddadahalli,
Mysore Road,
Bangalore-562 140.
2. The Manager,
Oriental Insurance Company Ltd.,
No.44/45, Leo Complex,
Residency Road,
Bangalore-25. ...Respondents
(By Sri.Rajashekar, Advocate for Sri.B.C.Seetharama
Rao for R-2;
Smt. Umadevamma, Advocate for R-1)
This Appeal is filed under Section 173 (1) of MV
Act against the judgment and award dated 01.8.2008
passed in MVC No.192/2007 on the file of XIX
Additional SCJ & Member, MACT, Bangalore, SCCH-
17, awarding a compensation of `.30,000/- with
interest @ 6% p.a. from the date of petition till
realisation.
12
MFA No.10106/2008
BETWEEN:
Sri.M.Vishwanath,
S/o Sri.Murugappa,
Aged about 50 years
R/at No.L-20, 25th Main,
LIC Colony,
JP Nagar, 1st phase,
Bangalore-560 070. ...Appellant
(By Sri.N.S.Bhat, Advocate)
AND:
1. Abdul Kaleel,
S/o Abdul Kalahk,
Aged about 28 years,
R/at No.20, Siddarthanagar,
Mysore Road,
Bangalore-560 033.
2. The Manager,
Oriental Insurance Company Ltd.,
No.44/45, Leo Complex,
Residency Road,
Bangalore-25. ...Respondents
(By Smt. M.C.Umadevamma, Advocate for R-1;
Sri.K.N.Srinivasa, Advocate for R-2)
This Appeal is filed under Section 173 (1) of MV
Act against the judgment and award dated 01.8.2008
passed in MVC No.191/2007 on the file of XIX
Additional SCJ & Member, MACT, Bangalore, SCCH-
13
17, awarding a compensation of `.21,000/- with interest
@ 6% p.a. from the date of petition till realisation.
MFA No.10108/2008
BETWEEN:
Sri.M.Vishwanath,
S/o Sri.Murugappa,
Aged about 50 years,
R/at No.L-20, 25th Main,
LIC Colony,
JP Nagar, 1st phase,
Bangalore-560 070. ...Appellant
(By Sri.N.S.Bhat, Advocate)
AND:
1. D.N.Manohar,
S/o D.Narayanappa,
Aged about 28 years,
Occ: Power Loom,
Dommasandra,
Sarjapura Road,
Bangalore-562 148.
2. The Manager,
Oriental Insurance Company Ltd.,
No.44/45, Leo Complex,
Residency Road,
Bangalore-25. ...Respondents
14
(By Sri.K.N.Srinivas, Advocate for R-2;
R-1 served)
This Appeal is filed under Section 173 (1) of MV
Act against the judgment and award dated 01.8.2008
passed in MVC No.193/2007 on the file of XIX
Additional SCJ & Member, MACT, Bangalore, SCCH-
17, awarding a compensation of `.40,000/- with
interest @ 6% p.a. from the date of petition till
realisation.
These Appeals coming on for Hearing this day, the
Court delivered the following:
JUDGMENT
MFA Nos.1974/2009, 1975/2009 & 1976/2009 are filed by the insurer questioning the correctness and legality of the judgment and award passed by MACT, Bangalore in MVC Nos.191, 192 & 193/2007 dated 01.08.2008 whereunder claim petition has been allowed in part and compensation has been awarded to respective claimants directing the appellant Insurer to pay compensation amount and has reserved liberty to the insurer to recover the amount from first respondent-owner of offending vehicle.
2. Against the very same judgment and award i.e., MVC No.191, 192 & 193/2007 owner of the offending vehicle 15 has filed MFA Nos.10106/2008, 10107/2008 & 10108/2008 contending that liability could not have been fastened on the first respondent and as such, recovering said amount awarded by Tribunal from first respondent by insurer would not arise and he is praying for fastening the liability on the Insurance company.
3. MFA Nos.1977/2009, 1978/2009 & 1979/2009 are also filed by the insurer questioning the judgment and award passed by MACT, Bangalore in MVC No.724/2007, 732/2007 and 1718/2007 dated 04.08.2008 and 25.08.2008 respectively whereunder claim petitions have been allowed in part. Compensation has been ordered to be jointly and severally by owner of offending vehicle and the insurer has been directed to indemnify the claim of insured.
4. MFA No.55/2009 is filed by claimant in MVC No.1718/2007 not being satisfied with the compensation awarded by the Tribunal by judgment and award dated 25.08.2008 and is seeking for enhancement of compensation on the ground that Tribunal has awarded very less compensation.
16
5. Heard Sriyuths B.S.Umesh, learned Advocate appearing for the insurer, N.S.Bhat, learned Advocate appearing for insured i.e., owner of offending vehicle, K L Srinivas, learned Advocate appearing for respondents-1 to 7 in MFA No.1978/2009, Chandrashekar, learned Advocate appearing for respondent-1 in MFA No.1977/2009, Rajashekar learned Advocate for Seetharama Rao, learned Advocate appearing for respondent-2 in MFA No.10107/2008, Sreevidya, learned Advocate for Sri.T.N.Vishwanath, learned advocate appearing for respondent-1 in MFA No.1979/2009 and appearing for appellant in MFA No.55/2009 and K.N.Srinivas, learned Advocate appearing for respondent-2 in MFA Nos.10108/2008 and 10106/2008. Perused the judgment and award passed by Tribunal and also records secured from the Tribunal.
6. Parties are referred to as per their rank before Tribunal.
7. MFA Nos.1974/2009, 1975/2009, 1976/2009, 10106/2008, 10107/2008 and 10108/2008 relates to the 17 judgment and award passed in MVC Nos.191/2007, 192/2007 and 193/2007 and as such they are taken up together for consideration along with MFA Nos.1977/2009, 1978/2009 and 1979/2009 since points for determination requires to be considered and adjudicated are common to these appeals.
8. Facts in brief leading to filing of these appeals are as under:
On account of a road traffic accident that occurred on 06.10.2006 at about 7.45 p.m., passengers of bus bearing registration No.KA-05-D-1999 filed claim petitions before Tribunal seeking compensation on the ground that they had sustained injuries and consequential disability.
9. Respondents appeared before Tribunal and filed their statement of objections controverting averments made in the claim petition. Claimants, insured and insurer tendered their evidence both oral and documentary and on evaluation of the same, Tribunal allowed the claim petitions in part. In MFA Nos.1974/2009, 1975/2009 & 1976/2009 Tribunal accepted plea of the insurer about driver of 18 offending vehicle having not possessed valid driving licence as on the date of accident. Though liability was fastened on the insured tribunal ordered insurer to indemnify the claimants on the ground that there was a insurance policy issued to the offending vehicle and it was in force as on the date of accident and as such directed the insurer to pay award amount to the claimants and recover the same from owner of the offending vehicle. However, in MFA Nos.1977/2009, 1978/2009 & 1979/2009 it fastened liability on the insurer and directed the insurer to indemnify the claimants.
10. It is the contention of Sri B S Umesh, learned Advocate appearing for the insurer that Tribunal could not have brushed aside the evidence tendered by insurance company or its witness R.W.2 by concluding that insured had not examined the RTO to prove that driver of the lorry did not possess driving licence and as seen from the records namely, FIR and charge sheet, driver of the offending vehicle factually did not have licence and examination or non examination of the RTO had no effect at all. He also contends that it is not even the case of the owner of 19 offending vehicle that driver of the offending vehicle had a valid and effective driving licence and as such, non examination of RTO on facts had no bearing on the defence set up by the insured. He also submits that once FIR and charge sheet are accepted for the purpose of entertaining the claim, they are required to be examined in its entirety as held by Hon'ble Apex Court in the case of ORIENTAL INSURANCE COMPANY LIMITED Vs PREMALATHA SHUKLA (2007 ACJ 1928) and contends that these documents would reveal that driver of the offending lorry did not have driving licence at all and as such liabilities could not have been fastened on the insurer or the insurer could not have been directed to pay and recover.
11. He would further elaborate his submission by contending that there has been violation of policy and permit conditions and when there is material available on record for the Tribunal to arrive at a conclusion that there has been breach of policy condition, insurer indemnifying the insured of all the claims arising of contractual insurance policy does not arise. He would also contend that when there is violation of the policy condition by the insured, liability of 20 insurance company to indemnify such claim cease. He has also taken through evidence tendered by parties to substantiate the grounds urged in appeal memorandum.
12. In support of his submission, he has relied upon the following judgments:
(1) 2008 ACJ 2860 - NATIONAL INSURANCE CO.LTD vs VIDHYADHAR MAHARIWALA & OTHERS (2) 2008 ACJ 2654 - RAM BABU TIWARI vs UNITED INDIA INSURANCE CO.LTD & OTHERS (3) 2008 ACJ 2855 - UNITED INDIA INSURANCE CO.LTD vs RAKESH KUMAR ARORA & OTHERS (4) ILR 2011 KAR 5761 - THE NEW INDIA ASSURANCE CO.LTD vs M SURESHAPPA
13. Per contra, Sri N S Bhat, learned Advocate appearing on behalf of the insured/owner would support judgment and award passed in MVC Nos. 724/2007, 732/2007 and 1718/2007 and contends that Tribunal has rightly taken note of the fact that owner of the offending lorry had entrusted to a person who possess valid and effective driving licence and as such, applying principles laid down in SKANDIA INSURANCE COMPANY LIMITED vs KOKILABEN CHANDRAVADAN & OTHERS reported in AIR 1987 SC 1184 21 has fastened the liability on insurance company and as such, he prays for modification of award passed in MVC Nos.191, 192 and 197/2007 by allowing the appeals filed by insured in MFA Nos.10106/2008, 10108/2008 & 10109/2008 and also prays for dismissal of appeals filed by insurer.
14. He has taken through the evidence tendered by insured whereunder it has been specifically contended that vehicle was entrusted to his driver Sri K R Kumar and licence possessed by him came to be produced and marked before Tribunal which would go to establish that insured had discharged contractual obligation and merely because said driver had handed over the vehicle to a person who did not possess a valid driving licence without the knowledge of insured would not entitle the insurer to contend that there is breach of the policy and as such, it should be absolved of its liability to indemnify the claim. On these grounds, he seeks for rejection of appeals filed by insurance company and also prays for allowing the appeals filed by insured. 22
15. In MFA No.55/2009 Smt.Sreevidya, learned Advocate appearing on behalf of claimant has sought for enhancement of compensation. She contends that Tribunal has not awarded any compensation towards loss of amenities and compensation awarded under other heads is abysmally on the lower side and seeks for enhancement of compensation.
16. Having heard the learned Advocates appearing for the parties, I am of the considered view that following points would arise for my determination in these appeals:
(1) Whether judgment and award passed by Tribunal in MVC Nos.191, 192 & 193/2007 dated 01.08.2008 directing Insurance company to satisfy the claim and recover the amount from owner of offending vehicle is to be sustained, set aside or modified?
(2) Whether Tribunal was correct in fastening the liability on the insurance company in its entirety in MVC Nos.724, 732 & 1718/2007 by judgment and award dated 04.08.2008 and 25.08.2008 respectively.23
(3) Whether claimant in MFA No.55/2009 is entitled for enhancement of compensation and if so, to what extent?
17. Having heard learned Advocates appearing for the parties and on perusal of judgment and award passed by Tribunal, I am of the view that points (1) & (2) formulated above are inter-linked and as such, they are taken up together for consideration.
RE: Point Nos. (1) & (2):-
18. There cannot be any dispute with regard to proposition that owner would be liable for payment of compensation in case where driver did not possess a driving licence at all. There is an obligation on the part of owner to take adequate care to ensure that vehicle is entrusted to a driver who possess valid and effective driving licence to drive the vehicle. Question in these appeals is regarding liability of a owner/insured entrusting the vehicle to a driver not possessing valid licence would it absolve the insured to indemnify the claimant. If the driver of the offending vehicle did not possess valid licence on the date of accident, then, 24 insurance company is not liable to indemnify the insured as the vehicle would have been driven in contravention of the terms and conditions of the policy.
19. As regards the obligation of the insured to the insurer came up for consideration before Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANMY LIMITED vs SWARAN SINGH (2004 ACJ 1 (SC)) and after analysing various provisions of Motor Vehicles Act, it has been held that insurance company in order to avoid its liability towards insured is required to prove that insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling conditions of policy regarding driving of a vehicle by duly licenced driver or one who has not been disqualified to drive the vehicle at the relevant point of time and it has been held as under:
"(iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the 25 third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time."
20. Owner of the motor vehicle in terms of Section 5 of the Act has the responsibility to see that no vehicle is driven by a person who does not satisfy the provisions under Sections 3 & 4 of the Motor Vehicles Act, 1988. Thus, in a given case, if the driver of the vehicle admittedly did not possess valid licence and said vehicle was entrusted to be driven by such driver by its owner, then in such an event, insurer would be successful in defeating claim made against it and avoiding its liability. In the SWARAN SINGH'S case referred to supra, Hon'ble Apex Court has held that breach of policy conditions like disqualification of driver or possessing invalid driving licence by the driver, as contained in sub-section (2)(a)(ii) of Section 149, to have been committed by the insured have to be proved for avoiding liability by the insurer and in such circumstances, insurer has to prove that insured was guilty of negligence and failed 26 to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of vehicle and it was entrusted to a duly licenced driver or one who was not disqualified to drive such vehicle at the relevant time.
21. Hon'ble Apex Court in the case of SKANDIA INSURANCE COMPANY LIMITED vs KOKILABEN CHANDRAVADAN & OTHERS reported in AIR 1987 SC 1184 has held that mere breach of clause does not absolve the insurer of its liability. It has to go one step forward to establish that insured himself was guilty of committing breach of promise in contract of insurance since Section 96(2)(b)(ii) extends immunity to the insurance company if a breach is committed and it is established by insurer that offending vehicle was driven by a person who did not possess a valid and effective driving licence or who was disqualified to hold such a licence and during the period of disqualification vehicle was driven by such person with the knowledge of insured and breach was on the part of insured. It has been held by the Hon'ble Apex Court in Skandia's case referred to supra that insurer will have to establish that 27 insured is guilty of infringement or violation of promise. In the words of Hon'ble Apex Court it has been held as under:
"13. In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. Ordinarily it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not. If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. Why then has the legislature insisted on a person using a motor vehicle in a public place to insure against third party risk by enacting S. 94. Surely the obligation has not been imposed in order to promote the business of the insurers engaged in the business of automobile insurance. The provision has been inserted in order to protect the members of the Community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependents of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the Courts would be recoverable from the persons held liable for the consequences of the accident. A Court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recovered, from the person held liable who 28 may not have the resources. The exercise undertaken by the law Courts would then be an exercise in futility. And the outcome of the legal proceedings which by the very nature of things involve the time cost and money cost invested from the scarce re-sources of the Community would make a mockery of the injured victim, or the dependents of the deceased victim of the accident, who themselves are obliged to incur not inconsiderable expenditure of time, money and energy in litigation. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence. The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the contract of policy. In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Section 96 and by providing that except and save to the extent permitted by Section 96 it will be the obligation of the Insurance Company to satisfy the judgment obtained against the persons insured against third party risks. (Vide Section 96). In other words, the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the dependents of the victims of fatal accidents are really 29 compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has therefore to be interpreted in the twilight of the aforesaid perspective.
"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'. (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 (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, that it can be said that he is 30 '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 promisor (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 insurer 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. The discussion made in paragraph 239 of Breach of Contract by Carter (1984 Edition) under the head Proof of Breach, gives an inkling of this dimension of the matter. In the present case even if the promise were to be treated as an absolute promise the grounds for exculpation can be found from Section 84 of the Act which reads thus:-
"84. Stationary vehicles--No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver's 31 seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver."
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 be 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 spirit 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 32 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 it 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 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. This theory which needs no support is supported by Carter's "Breach of Contract"
vide paragraph 25. To quote:-
"Notwithstanding the general ability of contracting parties to agree to exclusion clause which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisor's contractual obligations. For example, in Glynn v. Margetson & Co., [1893] A.C. 351 at 357 Lord Halsbury L.C. stated:33
"It seems to me that in construing this document, which is a contract of carriage between the parties, one must be in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard......... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract."
Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantigue Societed Armement Maritime S.A. v.
N.V. Rotterdamsche Kolen Centrale, [1967] 1 A.C. 361 at 393, 412-413, 427-428, 430. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main Purpose or object of the contract."
(Emphasis added).
22. Under Section 3 of the Motor Vehicles Act, 1988 no person would be entitled to drive a motor vehicle in any public place unless he holds effective driving licence issued to him authorizing him to drive the vehicle and Section 5 of the Act mandates that no owner or person in charge of a motor vehicle shall cause or permit any person who does not 34 satisfy the requirements of Section 4 of the Act to drive his vehicle.
23. Thus, keeping the dicta laid down in above referred judgments and statutory provisions of the Motor Vehicles Act, 1988 in mind when facts are examined, it would indicate from the pleadings and evidence of respective parties that vehicle namely, lorry bearing registration No.KA- 051-C-1145 belonging to Sri M Vishwanath (insured) met with an accident on 06.10.2006 at about 7.45 p.m. namely, it dashed against a passenger bus bearing registration No.KA-05-D-1999 resulting in injuries being sustained by the passengers of the bus and also death of lorry driver. FIR and charge sheet produced in the respective claim petitions by the claimants would indicate that criminal case was lodged against Mr.Nagaraj, lorry driver. On account of this fatal accident, police have filed abated charge sheet against said Mr.Nagaraj. Said offending vehicle was driven by Mr.Nagaraj is an undisputed fact. However, owner of the offending vehicle namely insured who appeared before Tribunal filed statement of objections to the claim petition and tendered his evidence. He has taken a specific stand in 35 the statement of objections that he had entrusted the vehicle namely offending lorry to his driver Sri A.R.Kumar, s/o A.N.Ramachandra who was possessing a effective and valid driving licence at the time of entrustment. Driving licence relating to Sri A.R.Kumar was also produced and marked as Ex.R.6 before Tribunal. It has also been specifically denied by him that there was no entrustment of offending vehicle by him to said Mr.Nagaraj. It is also contended that insured on the day of accident was not in station and had been on a pilgrimage and after the accident, he came to know about that his driver Sri A.R.Kumar had fallen sick on the said date due to severe loose motion and as such he had in turn entrusted the vehicle namely offending lorry to Sri Nagaraj under the belief that he had implied authority. Contention raised in the statement of objections came to be reiterated in the evidence tendered by him before Tribunal in all these cases. A suggestion was put to the said witness that he had entrusted the lorry to Sri Nagaraj since regular driver Sri A.R.Kumar was on leave on that day and also Mr.Nagaraj was not possessing valid driving licence to which he pleaded 36 ignorance. To the suggestion that his statement is incorrect came to be denied by him in the cross examination.
24. There cannot be any dispute with regard to the fact that offending vehicle was insured with the insurer and plea of breach of policy conditions was raised by the insurer. Raising of a plea in the statement of objections would not absolve the insurer of its liability unless such plea is proved and burden of proving is on the insurer. In the instant case, insured has specifically stated that vehicle in question was entrusted to his driver Sri A R Kumar who possessed valid and effective driving licence. Said licence which came to be produced and marked as Ex.R-6 in MVC No.1718/2007 would support the contention of insured. Thus, burden of proving that insured had entrusted the vehicle to a person not holding a valid licence to drive the offending vehicle fell on the shoulders of insurer. Statement of objections as well as evidence produced on behalf of the insurer would indicate that such a plea was taken on the basis of files or records maintained by the insurance company. Records namely, charge sheet would indicate that driver of the offending vehicle was one Mr.Nagaraj and he did not possess licence to 37 drive the offending vehicle. As such, plea came to be raised by the insurance company. It is also submitted by R.W.1 namely, Administrative Officer of the Insurance company who was examined on behalf of insurer that investigation was done by the insurer and said report has not been filed before Court. She has tendered her evidence on the basis of police records. As to whether there was entrustment of vehicle by the insured in favour of Sri A.R.Kumar or Mr.Nagaraj, no evidence has been placed. On the other hand, insured has entered witness box and denied the fact that he had entrusted the vehicle to Sri Nagaraj and on the other hand, he has contended that he had entrusted the vehicle to his driver Sri A R Kumar who possessed valid and effective driving licence. It is in this background, Hon'ble Apex Court in SKANDIA INSUDRANCE COMPANY LIMITED's has held that only in case of breach or violation of the promise on the part of the insured that insurer can hide under the umbrella of exclusion clause as otherwise insurer has to indemnify the claim. In the instant case insurer has not discharged its burden by proving that there was implied authority given by the insured to Sri A R Kumar and as such 38 said Sri. A.R. Kumar had entrusted the vehicle to Mr.Nagaraj who did not possess valid and effective driving licence. It requires to be noticed that unless the insurer establishes by cogent evidence that consciously insured had entrusted the vehicle or insured had allowed by implied authority to permit such person to entrust the vehicle to be driven by any other person, no inference can be drawn and that too on surmises and conjectures and it is these precise factual matrix which is staring at face in the instant case.
25. It is also contended by Sri B S Umesh that insured has admitted in the cross examination that deceased Nagaraj had filed a claim petition against insured as well as insurer and Commissioner for Workmen's Compensation who adjudicated the claim had passed an order and award in favour of claimants namely, parents of Nagaraj with joint and several liability fixed on both insured as well as on the insurer and in view of the said order having not been challenged, insured is now estopped from contending that Mr.Nagaraj was not his employee and driver of the offending vehicle. It is also contended that Sri A R Kumar was not 39 examined and initial burden cast on the insured has not been discharged.
26. As noticed herein above, Hon'ble Apex Court in SKANDIA INSURANCE COMPANY LIMITED has held that burden of proof is on the insurer to prove that plea raised in statement of objections to claim that it should be absolved of its liability particularly when the policy has been issued by it to the offending vehicle and same being in vogue, burden is always on the insurance company and only on said obligation being discharged it shifts on the insured to prove otherwise. Only contention of Mr.Umesh is that insured has to discharge his/her liability that there is no violation of policy condition cannot be accepted particularly in the backdrop of suggestion made to insured by learned Advocate appearing for the insurer in the cross examination which reads as under:
"£Á£ÀÄ J PÀĪÀiÁgÀ C£ÀÄߪÀ ZÁ®PÀ££ À ÀÄß £ÉëĹPÉÆArzÉ£ Ý ÀÄ ¸ÀzÀj ZÁ®PÀ£ÀÄ PÉ®¸ÀPÉÌ ¨ÁgÀ¢zÁÝUÀ £Á£ÀÄ ¨ÉÃgÉ ZÁ®PÀgÀ£ÀÄß £ÉëĹPÉƼÀÄîwÛg°À ®è."
This suggestion would clearly indicate that insurer wanted to establish that on the date of accident, Sri A.R.Kumar was 40 the driver of insured and he did not attend to his duties and whenever he was not attending to his duties, other drivers were being appointed by the insured. This would mean that insurer was fully aware that Sri A.R.Kumar was the driver of the offending vehicle. It would further lead to an inference that based on the charge sheet filed by jurisdictional police against deceased driver Sri Nagaraj namely, abated charge sheet which reflects that said Mr.Nagaraj did not possess valid and effective driving licence, insurance company thought fit to raise a plea to absolve itself of its liability and to ensure that it does not indemnify the claim. Burden cast on the insurer has not been discharged and mere averment made in the statement of objections would not suffice particularly in the background of policy having been issued to the offending vehicle and same being in force and vogue as on date of accident. Burden is very heavily cast on the insurer to plead and prove. Said exercise having not been undertaken and attempt made in this regard having not been fruitful for reasons assigned hereinabove this Court cannot call upon the insured to prove a negative factor. 41
27. As noticed herein above, insurer has set up the defence to absolve itself of its liability to indemnify the claim by attempting to take umbrage on the ground that there has been violation of policy condition only on the basis of FIR and charge sheet and having made an attempt to prove its plea, it has utterly failed to prove the same and as such, point Nos.1 & 2 formulated herein above requires to be answered against insurance company and in favour of the insured.
RE: POINT NO.(3)
28. In MFA No.55/2009 claimant is seeking for enhancement of compensation on the ground that compensation awarded by the Tribunal is abysmally on the lower side. Claimant has entered the witness box and also produced the disability certificate as per Ex.P-8. In fact, claimant was also treated at NIMHANS Hospital as per Ex.P- 5 on account of head injury sustained by him. Claimant had sustained acromino-clavicular dislocation on the right side. He was an inpatient at Kamala Nursing Home from 07.10.2006 to 08.10.2006. Disability certificate issued by 42 Sanjay Gandhi Institute of Trauma and Orthopaedics Hospital as per Ex.P-8 would also corroborate this factor. Doctor who has treated and issued disability certificate was not examined. As such, said document Ex.P-8 was not rightly accepted by Tribunal. However, report of NIMHANS at Ex.P-5 would indicate that at the right side of forehead, claimant had sustained fracture, as such, compensation has been awarded to the claimant. Doctor has assessed disability to the whole body at 12%. Though author of Ex.P-5 and P-8 has not been examined, contents of it having not been rebutted by any contrary evidence by insurer and insured this Court is of the considered view that claimant would be entitled for compensation towards disability sustained and loss of amenities as also loss of income during laid up period but would not be entitled to compensation towards loss of future income since Doctors who examined and treated the claimant at Kamala Nursing Home or from Sanjay Gandhi Hospital having not been examined.
29. In the light of medical evidence tendered by claimant which is also supported by X-ray as per Ex.P-9 and as discussed herein above, I am of the considered view that 43 claimant would be entitled for additional compensation as under:
(i) Loss of amenities - 20,000/-
(ii) Disability - 15,000/-
(iii) Loss of income during
laid up period - 6,000/-
(2 months at 3,000/- p.m.)
-------------
Total - 41,000/-
-------------
As such, claimant is awarded an additional compensation of ` 41,000/- in MFA No.55/2009.
30. For the reasons aforesaid following order is passed:
1. MFA Nos.1974/2009, 1975/2009, 1976/2009, 1977/2009, 1978/2009 & 1979/2009 are hereby dismissed with costs and judgment and award passed in MVC Nos.724/2007, 732/2007 & 1718/2007 dated 25.08.2008 are hereby affirmed.
2. MFA Nos.10106/2008, 10107/2008 & 10108/2008 are hereby allowed and judgment and award passed by MACT, Bangalore in MVC Nos.191, 192 & 193 of 44 2007 is hereby modified and held that liability of respondent Nos. 1 & 2 is joint and several. In view of the fact that insurance company has issued the policy to the offending vehicle, Respondent No.2 is liable to indemnify the claim.
3. MFA No.55/2009 is allowed in part and judgment and award passed in MVC No.1718/2007 dated 25.08.2008 is hereby modified and additional compensation of `.41,000/- is awarded which shall carry interest @ 6% p.a. from the date petition till date of payment *or date of deposit whichever is earlier.
4. Costs is quantified at ` 12,000/- namely, ` 2,000/-
each payable by insurer to insured within an outer limit of four weeks from the date of receipt of certified copy of this order failing which, insured would be entitled to recover the same from insurer by filing execution petition before jurisdictional Court.
5. Insurer shall deposit the entire award amount with interest calculated up to date within an outer limit *Corrected vide chamber order dated 30.04.2013 45 of four weeks from the date of receipt of certified copy of this order before the jurisdictional Tribunal.
6. Amount in deposit in MFA Nos.10106/2008, 10107/2008 & 10108/2008 is ordered to be refunded to the appellant by the Registry on proper identification.
7. Amount in deposit in 1974/2009, 1975/2009, 1976/2009, 1977/2009, 1978/2009 &, 1979/2009 is ordered to be transmitted to the jurisdictional Tribunal forthwith by the Registry for being disbursed in accordance with the judgment and award.
8. Registry to transmit the records to jurisdictional tribunal.
Sd/-
JUDGE *sp