Madhya Pradesh High Court
Ram Prasad Purohit vs Ramesh Chandra And Ors. on 8 August, 1990
Equivalent citations: 1991ACJ1124
JUDGMENT R.K. Verma, J.
1. This is an appeal filed by the owner of the offending truck bearing registration No. CPO 8474 against the award dated 27.9.1984 passed by the Motor Accidents Claims Tribunal, Shajapur in Claim Case No. 20 of 1981 whereby the learned Tribunal has awarded Rs. 7,000/- as compensation to the claimants in respect of the death of their son Sanjay aged 4 years, arising out of a motor accident due to rash and negligent driving of the truck in question by respondent No. 4, Kalu Khan.
2. The facts giving rise to this appeal, briefly stated, are as follows:
On 23.4.1981, the date of the accident, while the respondent No. 4, Kalu Khan, was driving the truck bearing registration No. CPO 8474 after unloading it at Prakash Dalal's Transport, Susner, the truck dashed against the deceased Sanjay resulting in his death.
3. On a claim petition having been filed by the parents of the deceased Sanjay against Kalu Khan, respondent No. 4, his employer, the truck owner Ram Prasad and the insurance company with which the truck stood insured, for compensation in respect of the death of deceased Sanjay, the learned Tribunal, on appreciation of evidence adduced in the case, has awarded an amount of Rs. 7,000/- with interest at the rate of 6 per cent per annum from 23.10.1981, the date of filing the claim petition, till realisation. The learned Tribunal, however, held only Kalu Khan and his employer, the truck owner, liable jointly and severally to pay the amount of compensation awarded and further held that the respondent insurance company was not liable since Kalu Khan had no driving licence at the time of the accident.
4. Being aggrieved by the impugned award, the owner of the truck in queston has filed this appeal.
5. The learned counsel for the appellant truck owner has submitted that the Tribunal has erred in holding that the accident took place by the truck in question and that Kalu Khan was driving the vehicle at the time of the accident.
6. A perusal of the evidence, however, leaves no room for doubt that the truck in question was involved in the accident and that Kalu Khan was the person driving the truck at the time of the accident, as has been held in paras 24 and 25 of the award. In the Criminal Case No. 313 of 1981 arising out of the accident, Kalu Khan was tried for the offence under Section 304A of the Indian Penal Code by the Judicial Magistrate, 1st Class, Susner, who by his judgment, Exh. D-3, dated 19.10.1982 had also held it proved that the deceased Sanjay died as a result of the accident by the truck which was being driven by the accused Kalu Khan. There is no scope for doubting the fact that the accident took place with the truck in question and that Kalu Khan was driving the truck at the time of the accident. The aforesaid submission of the learned counsel has, therefore, no substance. The award of compensation in respect of the death of deceased Sanjay is, therefore, rightly based on the finding of rash and negligent driving of the truck in question by Kalu Khan.
7. The learned counsel for the appellant has pointed out that Kalu Khan, who was examined as DW 1, has stated that he was serving as a cleaner on the truck and that at the time of the accident the driver of the truck was one Mohd. Khan. The truck owner Ram Prasad, who examined himself as DW 2, also stated in his cross-examination that Mohd. Khan was the driver of the truck. The learned Tribunal, however, did not accept these statements naming Mohd. Khan to be the driver of the truck, on the date of the accident, in the absence of any pleading made in that behalf by the truk owner.
8. Learned counsel for the appellant next contended that the insurance company has been wrongly absolved of the liability in respect of the accident by the truck, which admittedly stood insured with it on the date of the accident. The learned Tribunal has discussed the question of liability of the insurance company in relation to the said accident at paras 45, 46 and 47 of the impugned award. Kalu Khan, DW 1, has admitted in his evidence that he did not hold a licence at the time of the accident. The learned Tribunal, therefore, held that such statement on the part of Kalu Khan that he was driving the truck without driving licence at the time of the accident, comes in the way of holding the insurance company liable, by reason of Section 96 (2) of the Motor Vehicles Act. But this reasoning of the learned Tribunal is apparently based on a wrong assumption that there is any statutory bar against holding the insurance company liable in a case of accident by unlicensed driver. What Section 96 (2) of the Motor Vehicles Act provides in this connection is that the insurance company shall be entitled to defend the action on the ground that there has been a breach of a specified condition of the policy excluding driving by any person, who is not duly licensed. Thus, the provision of Section 96 (2) itself does not ipso facto absolve the insurance company in a case of motor accident where the offending vehicle was being driven by an unlicensed driver. It is only when the insurance policy provides for such a condition prohibiting driving by any person who is not duly licensed that the company can take the defence and not otherwise. No policy was produced by the insurance company before the learned Tribunal, the learned Tribunal erroneously thought that the said defence was provided in the provision of Section 96 itself, which is not the case.
9. After the arguments in this appeal were partly heard the learned counsel for respondent insurance company made an application under Order 41, Rule 27 of the Code of Civil Procedure, for taking the insurance policy on record. The copy of the insurance policy produced with the application is admittedly not the copy retained by the insurance company at the time the said policy was issued to the insured and the learned counsel for the appellant in his reply filed to the application under Order 41, Rule 27, Civil Procedure Code, has raised objection on the ground that the documents of policy filed are only prescribed forms marked as 'Sd/-' (signed) and are apparently prepared copies, which are not even certified or authenticated as true copies.
10. In view of the controversy raised about the genuineness of the copy of insurance policy produced by insurance company, it would not be safe to act upon it without making inquiry in that behalf.
11. The learned counsel for the appellant has further submitted that even if the insurance policy were to contain an exclusion clause prohibiting driving by a person other than one holding driving licence, the insurer does not get absolved of its liability on mere breach of that clause, unless the insurer establishes that the insured himself was guilty of committing breach of his promise as provided in contract of insurance. In the instant case the insurance company has not established that the insured truck owner was guilty of committing the breach. In support of his submission the learned counsel has placed reliance on a decision of the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), wherein the relevant observations are as follows:
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. 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. Unless the insured is at fault and 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.
In the instant case the appellant owner of the truck has stated that one Mohd. Khan was the driver of the truck and the respondent No. 4, Kalu Khan, was not the driver but cleaner on the truck. There is nothing on record to suggest that Kalu Khan had been authorised to drive the truck by the owner himself. As such applying the principles laid down in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), the insurance company cannot be absolved of its liability incurred on account of the death of the deceased child Sanjay, who was hit by the offending truck which stood insured with the insurance company at the material time.
12. In view of the discussion above, this appeal succeeds and is hereby partly allowed only to the extent that the insurance company shall also be jointly and severally liable along with the driver and the owner of the truck to pay the compensation, as awarded by the learned Tribunal. The award shall stand modified accordingly.
In the circumstances of the case there shall be no order as to costs.