NATIONAL INSURANCE CO LTD Vs. P SANTHA ANDOTHERS

JUDGEMENT

(1.) The appellant insurer raised mainly two contentions before the Tribunal below; (1) the liability to indemnify to the insured in terms of the policy was limited and (2) there was violation of condition of policy including in so far as the driver, the 2nd respondent before the Tribunal below did not possess a valid driving licence.

(2.) The first contention was sought to be substantiated on the basis of policy and it was accepted by the Tribunal below. The second contention was sought to be substantiated by filing a petition on 19.10.1989 before the Tribunal below calling upon both the owner and the driver to produce certain documents relating to the vehicles including the driving licence. Though the interlocutory application was posted on three or four occasions, no order is seen passed. Except, as is discernible from the judgment of the Tribunal below, filing a written statement no contention had been raised or evidence had been tendered by the driver. While passing the impugned judgment the Tribunal below did not deal with the second contention of the Insurance Company especially with regard to the absence of driving licence. So, it is submitted that even the liability in terms of the award is not to be satisfied by the insurer, the appellant submits.

(3.) S.96(2)(b)(ii) of the Motor Vehicles Act, 1939 provides that if the vehicle was being driven by a person without driving licence, necessarily, the insurer can avoid the liability. Sub-s. (3) thereof further provides that any condition imposed other than that providing in sub-s. (2)(b) of S.96 shall be of no effect so far as the insurer is concerned. In other words, all the conditions made mention of in S.96(2)(b) is of no effect so far as the insurer is concerned to avoid a liability and to plead avoidance of liability. It is in that respect that valid plea available to the insurer in terms of the statute had been raised before the Tribunal below. In such circumstances, the Tribunal was incumbent to arrive at a finding on that aspect, the counsel for the appellant submits.