Madhya Pradesh High Court
The New India Assurance Company Ltd. vs Smt. Prem And Ors. Etc. on 10 September, 1997
Equivalent citations: 1999ACJ63, AIR1998MP57, AIR 1998 MADHYA PRADESH 57, (1999) 2 TAC 819, (1999) 1 ACJ 63, (1999) 1 ACC 273
JUDGMENT Tejshankar, J.
1. The abovementioned three appeals arise out of three claim petitions brought by Smt. Prem (Claim Petition No. 59/92), Smt. Narayanibai (Claim Petition No. 58/92) and Smt. Shanti (Claim Petition No. 60/92). They have arisen out of the same accident but different claim petitions were preferred. Hence the learned Court below decided them separately though it appears that evidence was recorded only once and carbon copy was placed on the record of the two remaining cases. As common question of law has been raised they are being disposed of by this common order.
2. The factual position over all is admitted. It is admitted that an accident had taken place on 16-7-1992 when the claimants were going in Metador No. MP 08 8265 owned by Gopal Krishna Tiwari and driven by Pappu. It was claimed by the claimants that they were engaged as labour for collecting muram and were going on the said vehicle. It was claimed that on Narwar road it was being driven rashly and negligently by Pappu driver as a result of which it turned turtle causing injuries to the claimants. The claimants claimed different amounts in their different petitions as compensation. Alt the three claim petitions were contested by the New India Assurance Company Ltd. It was denied that the accident had taken place on account of rash and negligent driving of the vehicle. The chief defence taken by the insurer was that the ensured had violated the terms of the policy. The vehicle was to be used for carrying goods but passengers were being taken either gratuitously or on hire. It was not meant for carrying labour. It was not being driven by a licenced driver. The Tribunal after considering the entire material awarded compensation to claimants in Claim Petition No. 59/92 Rs. 35,000/- in Claim Petition No. 60/92 Rs. 20,000/- and to claimants in Claim Petition No. 58/92 Rs. 30,000/-. The responsibility to pay the compensation was ordered to be joint and several. Hence these appeals by the Insurer.
3. The learned Counsel for the appellant raised two legal points. Firstly, he urged that it is apparent from the record that the vehicle was being driven by Pappu who had no valid licence and thus it was a specific breach of the condition and the Insurer is not liable under the terms of the policy. The next contention of the learned Counsel is that passengers were being carried on the goods vehicle which too was a breach of terms. In this connection he referred to the averments in the F.I.R. copies of which have been filed with each claim petition wherein it has been mentioned that about 15 or 16 passengers were carried in the vehicle. He also referred to the terms of the policy. The learned Counsel for the claimants contended that it was the duty of the Insurer to have proved as a fact that the vehicle was not being driven by a licensed driver and unless it is proved the Insurer cannot be exonerted of his liability. As regards second contention he argued that the injured were labour who were engaged for collecting muram, and as such it too does not amount to breach of conditions. Both the learned Counsel placed reliance upon a number of authorities in support of their respective contentions.
4. Before dealing with the legal submissions raised by the learned Counsel for the parties, it is necessary to go through the factual aspect of the matter. As said earlier, it is not disputed that the vehicle was being driven by Pappu and was owned by Gopal Krishna Tiwari. It has been strenuously argued by the learned Counsel for the claimants that the onus to show that the vehicle was, being driven by unlicensed driver was upon the Insurer and the Insurer has failed to discharge. He placed reliance upon 1991 Vol. 11 M.P.W.N. Note 14 (Lalchand v. Ku. Kama) where the defence of the Insurer was that the driver was not holding a valid licence. The Court held that it has to be proved by the Insurer itself. The other authority relied upon is 1995 Vol. I M.P.W.N. -- Note 164 (Oriental Insurance Co. Ltd. v. Smt. Makni) where the facts were that the driver did not appear in the case and the case proceeded ex parte against him and the Insurer did not produced the record of the Licensing Authority. It was held that the breach was not proved. I may observe here that no doubt it is true that it was for the Insurer to have proved that there was breach of terms of the policy but it cannot be said that the breach could be shown only by summoning the document from the Licensing Authority. It can also be proved by the evidence produced by the owner or the driver. 1 am supported in my view by the decision of the Apex Court reported in (1990) I Acc 1, (Kashiram Yadav v. Oriental Fire and General Insurance Co.). In that case the Insurer look the plea that he was not liable on account of the fact that there was a breach of the terms and the vehicle was being driven by unlicensed driver. On the facts of that case the Apex Court ruled that the onus of the insurer had been discharged from the evidence of the insured himself. There was no material in that case to indicate that the vehicle was entruslcd to the licensed driver on the date of the fatal accident. Thus, if it is shown from the material on record that the vehicle was being driven by unlicensed driver there was breach of the terms of the insurer policy. The fact that there was a term in that regard has not been challenged before me during the course of arguments by the learned Counsel for the claimants. A perusal of the material on record shows, that copy of the licence is on record and it is Ex. D-2. The owner himself has admitted on oath that it was the licence of the driver. DW 1 Gopal Krishna was shown during cross-
examination copy of the licence on record and he categorically stated that Ex. D2 was Pappu's driving licence. A perusal of this document shows that it was merely a learner's licence and it was valid from 29-9-1991 to 19-3-1992. The accident had taken place on 16-7-1992. There is another statement of DW 2 Abhya Kumar who stated that in the office of the R.T.O. licence could not be traced. Thus, it is apparent from this evidence on record that the owner knew that the driver had a licence which was Ex. D-2 and no further licence was traceable in the R.T.O. office. In this view of the matter, it is apparent that the fact that the owner had handed over the vehicle to a driver 'Pappu who had a learner's licence only Ex. D-2 and that too had expired at the time of accident.
The Claims Tribunal has not discussed the evidenced such detail. The onus of the insurer is discharged from the material on record. It is, therefore, held accordingly.
5. Having found that the owner had handed over the vehicle to a driver who had a learner's licence only i.e. Ex. D-2 which had already expired prior to the occurrence,! now proceed to deal with the legal position. Much emphasis has been laid by the learned Counsel for the claimants on the decision reported in AIR 1987 SC 1184 (Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan). On this basis it has been contended that the Apex Court has ruled that exclusion clause in policy prohibiting driving by person other than one holding driving licence does not absolve insurer of his liability. He has to establish that insured himself was guilty of committing breach of promise in contract of insurance. This authority has been relied upon by the learned single Judge of this Court in 1995 Acc CJ 1274 (Meerabai v. New India Assurance Co. Ltd.). It is important to mention at this stage that while applying an authority the facts of the case have to be taken into consideration. In case of Skandia Insurance Co. v. Kokilaben which has been relied upon by the learned single Judge of this Court it was specifically ruled :
"It is therefore abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violition of a promise that a person who is duly licensed will be in charge of the vehicle The very corcept 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 promison 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..... 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."
Taking into consideration this law and in the light of what has been said above the fact that the insured had given the vehicle to the driver who had learner's licence Ex. D-2 which had already expired, it can safely be said that it is one of the cases which is covered by the law laid down by this authority inasmuch as it has been shown that the owner had placed the vehicle in charge of a person who did not hold a valid licence. He was. therefore; guilty of breach of the terms of the policy even according to the law laid down in this authority.
6. The aforesaid authority i.e. Skandia Insurance Co's case (AIR 1987 SC 1184), was I also considered in the abovementioned case of Kashiram Yadav's case (1990'(1) Ace 1 (SC) (supra) where the Court, as mentioned above, found that the onus had been discharged frorn the evidence produced by the owner himself.
7. The latest pronoucement of Apex Court is AIR 1996 SC 1150 (New India Assurance Co. Ltd. v. Mandar Viddhav Tambe). In that case the question which came up for consideration was also similar. The tacts of that case were more or less akin to the case in hand. There, the facts were that an accident had taken place on 4-7-1979 involving two scooters. One was being driven by respondent I and the other by respondent No. 3. Respondent No. I suffered injuries and he filed claim petition for compensation. The petition was contested on behalf of the insurance company on me ground that respondent No. 3 had obtained a learner's licence which had expired on 21-11-1977 and the accident had taken place on 4-7-1979. The respondent was thus not holding a driving licence as contemplated by the Motor Vehicles Act. He had, however, obtained a fresh learner's licence on 7-7-1979 and thereafter on 9- 7-1979 obtained a driving licence. The Apex Court considered the relevant provisions of the Motor Vehicles Act and held that a driving licence as defined under the Act is different from a learner's licence issued under Rules 96. A person would be regarded as being duly licenced only if he has obtained a licence under Chapter II of the Motor Vehicles Act and a person who had obtained a temporary licence which enable him to learn driving could not be regarded as having been duly licenced. The exclusion clause in the policy which was same as in the present case wasalso considered and it was observed that the intention and meaning of the policy clearly is that the person driving the vehicles at the time of the accent must be one who holds a driving licence within the meaning of Section 2(5A) of the Act. Consequently, it was held that there was a clear breach of terms of the policy and the appeal was allowed. In this view of the matter it is now clear that if the vehicle was being driven at the time of the accident by adriver who had no valid licence the exclusion clause in the policy is attracted. In the case in hand, as pointed out above, there is special feature that the owner knew that the driver had licence Ex. D-2 and Ex. D-2 shows that it had already expired. Under these circumstances I agree with the learned Counsel for the appellant that the insurance company cannot be fastened with the liability as the vehicle was being driven within the knowledge of the owner by an unlicensed driver.
8. Before parting with this argument I may also mention that the learned Counsel for the appellant relied heavily upon 1996 Acc CJ 838 (Oriental Insurance Co. Ltd. v. Usha), a decision of the Kerala High Court, on the interpretation of Section 149(2)(a)(ii) and Section 149(2)(b) on the liability of the insurer. This question does not appearto be involved in the present case. However, in any case, in view of the latest pronouncement of the Apex Court in New India Assurance Co.'s case (AIR 1996 SC 1150) (supra) where it was held that the insurance company was not liable for paying compensation with respect to the vehicle which was being driven by a person having learner's licence, this authority does not help the learned Counsel.
9. In view of what has been said above, the second contention does not call for any finding. However. 1 also take up that argument. The contention is that it is not disputed that the vehicle in question was a public carrier used for carrying goods 15 or 16 persons had been taken in that vehicle which was against the terms of the policy. Again in this connection the facts of the case have to be seen. The allegation of all the claimants is that on the date of the accident respondent No. 1 i.e. Pappu had taken them along with other persons fordoing labour. It is significant to mention that in none of the three claim petitions there is any allegation that the claimants were engaged by the driver and for what type of labour, The averment is, that he had taken along with other labours for doing labour work. In their statements, the claimants stated that Pappu had engaged them as labour at Rs. 30/- per day. The learned Counsel for the appellant contended that they were gratuitous or they were being taken on hire. Apart from the statements of three claimants, there is no other evidence on record to show that they were engaged as labour by the driver and under the authority of the owner. There is on record copy of the F.I.R. Ex. P-l filed by the claimants themselves in each case which is the earliest version of the occurrence. A perusal of this document which has also been relied upon by the learned Counsel for the insurer that it was specifically mentioned therein that along with the informant Shyam 15 or 16 persons including ladies and children were going from Shivpuri to Narwar on Mctador No. MP 08-8265. Thus, the fact that the claimants were engaged as a labour by the driver on the authority of the owner cannot be said to be established. For the sake of argument if it is taken to be established, it has now io be seen what is the position in law. The learned Counsel for the claimants placed reliance upon (1994) I TAC 144 (National Insurance Co. Ltd. v. Babu). In this case the learned single judge of this Court held that it cannot be said that carrying of passengers in a goods vehicle is totally prohibited. In that case the policy itself spcified that six persons could be carried in the vehicle in question apart from the driver and it was held the hirer and his employees were covered by the insurance policy and the insurer is bound to pay compensation for the death or bodily injury while the vehicle met with the accident. This question came up for consideration before a Division Bench of this Court of which I was also a member in a case reported in 1995 Acc CJ 1274 Meerabai v. New India Assurance Co. Ltd.). in that case facts were that death of a passenger who had fallen from the truck had taken place. The contention of the claimants and owner of the truck was that the deceased was engaged as a labourer by its driver on the day of accident to load and unload goods, Neither the driver was examined nor any other evidence was produced to show cause that the deceased was travelling as an employee of the owner of the truck. The question that arose was whether the deceased was gratuitous passenger and the insurance company is exempted from liabilily. It was decided in me affirmative relying on 1977 ACT CJ 343: AIR 1977 SC 1735) and 1994 SCC CJ 970 (Guj). There is a latest decision of a Division Bench of this Court which has not yet been reported which has been relied upon by the learned Counsel for the appellant i.e. M.A. No. 949 of 1996 decided on 11-4-1997 (Shankar Prasad v. Smt. Maltidevi). In that case the deceased was also travelling in the loaded truck. On the way the truck turned turtle asa result of which he died. The claim was contested by the owner as well as by the insurer. The insurer disowned its liability. This question was considered by the Court and after considering the law on the subject and the facts and that case it was held that it was not a case of lifting one or two persons and the claim relates to the person who died i n accident and the vehicles was being used for the purpose other than the purpose it was adapted for its use and such passengers were carried in breach of the terms of the policy. As the passengers could not have been lawfully carried or permitted to travel in the goods vehicle the Tribunal rightly absolved the insurerfrom its liability as the appellant permitted the use of the vehicle as a public service vehicle. Thus, in the present case also as the vehicle involved was admittedly public carrier for carrying goods and several persons were being carried in breach of me policy, the insurer cannot be held to be liable in view of the aforesaid authority. I, therefore, agree with the learned Counsel for the appellant on this ground as well.
10. In view of what has been said above, all the appeals succeed. They are accordingly allowed and it is held that the insurer-appellant is not liable to pay any amount of compensation awarded. The award passed by the Tribunal is modified accordingly. Costs of all the appeals shall be borne by the parties under the circumstances of the case. Let a copy of this order be placed on record of M.A. No. 122/1995 and M.A. No. 123/ 1995.