AGRO ENGINEERING SERVICE Vs. GOVINDAMMAL

JUDGEMENT

(1.) THE fundamental principal of law is a contract of insurance is a contract of uberrima fides'. Under the insurance policy, the liability of the insurer can arise if all the terms of the contract as between the Insurance Company and the owner are fully complied with. In the instant case before us, it is the case of the fifth respondent-Insurance Company that it is absolved from the liability because some other trailor than the one the number of which has been incorporated in the policy of insurance has been utilised at the time of the accident, and as such, the claimants-respondents 1 and 2 herein are not entitled to get compensation from the Insurance Company. The Tribunal also upheld the contention of the Insurance Company and also held that the Insurance Company is not liable. This Court carefully perused the terms of the contract of insurance. There is no term which shows that if any other trailor other than TNY 3269 is used, the Insurance Company is not liable. In the instant case before us, at the time of the accident, it is common ground that trailor TNY 3880 belonging to the fourth respondent that had been connected with the tractor TNY 3168 is used. The tractor contains motor, and the driver drives only the tractor and the trailor only accompanies the tractor. The only knowledge that is required from the driver of a tractor is to know about the magnitude of the trailer so that he can negotiate the driving in such a way that the trailor does not come into contact with any object and results in any mishap or accident. The Insurance company which enters into a contract with respect to a tractor-trailor, if it wants to absolve its liability, it must take a precautionary method by way of inclusion f such a clause in the policy of insurance, namely, that if any other trailor than the one which has been insured with the Insurance Company and incorporated in the policy of insurance is used, then such a kind of withholding on the part of the owner/user of the vehicle will absolve the insurance company its liability to pay compensation. But such a clause is not available in the policy of insurance-Ex R. 2. Hence this Court is unable to uphold and confirm the finding of the Tribunal that the Insurance Company is not liable. The insurance in the instant case is between the owner of the vehicle, namely, the third respondent--appellant herein and the fifth respondent-Insurance Company before this Court. This vehicle, namely, tractor, either authorisedly or unauthorisedly had been lent to the third respondent herein, and the third respondent herein in turn gave it to the fourth respondent herein for being used. When it was actually used and met with an accident, the tractor did not accompany the Trailor TNY 3269; but the trailor bearing TNY 3880 was actually attached and used. Now, as already mentioned, the Insurance Company which is the fifth respondent herein wants to absolve its liability by stressing that the preamble portion of the policy contains only trailor bearing TNY 3269 so far as the trailor is concerned, and unless the said trailor is attached with the tractor TNY 3168 during the time of the occurrence, respondents 1 and 2 herein cannot have a successful claim to make a claim before the Tribunal, and as such the Tribunal had come to the correct conclusion that the Insurance Company is not liable because trailor bearing TNY 3880 belonging to the fourth respondent herein was actually attached to the tractor TNY 3168. Let us take an example of a lorry closed one having a trailor which is also connected by a connecting rod or chain to the main lorry which drags because of the machine propelled either by diesel or petrol. If any other trailor is used to the main lorrv which is completely covered on all sides and the trailor accompanied the main lorry, it cannot be a successful claim for the Insurance Company that because some other trailor has been used, it is not liable. It is only the main lorry that drags and not the trailor. But any how, they are coming within the purview of the Motor Vehicles Act, 1939. Though the tractor may be viewed in a different way, when the physical acts confronts, such vehicles are liable for Tamil Nadu General Sales Tax Act or the Central Sales Tax Act regarding the manufacturing of the same or use of the same and application of the same. We are now concerned herein which propels and drives the other, and which is head and which is tail. Certainly tail cannot move without the head. When a head is destroyed and crushed, naturally the tail also dies. This is also doing away with the life of a poisonous snake. So also in a case of tractor and trailor, the trailor receds, and its importance is individually considered because there is violant violation of the basic principles of the traffic rules and the principles of the conduct of the vehicles in public roads. In the instant case before us, we are not concerned with whether the accident had occurred only due to rash and negligent driving of the tractor-trailor. The finding of the Tribunal regarding rashness and negligence on the part of the vehicle is also not in dispute. Only with respect to the liability as to who has to bear the compensation that has to be paid to respondents 1 and 2 herein is the only question that has to be decided in the instant appeal before us. The appellant herein who is the third respondent before the Tribunal submits in this appeal through its learned Counsel that it is only respondents 3 and 4 herein that are liable, and not the appellant herein, Respondents 3 and 4 herein are respectively the District Collector, Pudukottai and Assistant Director Horticulture, Puduk-kottai District. In the instant case before us, it is common ground that tractor TNY 3168 and Trailor TNY 3269 were insured by the appellant herein with the fifth respondent herein. The fifth respondent herein is the National Insurance Company Limited, Tiruchy. As already mentioned, no exclusion clause is available in the whole contents of the policy of insurance Ex. R-2, absolving the liability of the fifth respondent-Insurance company, if some other trailor than the trailor TNY 3269 which is incorporated in Ex. R-2 is used. Letting, lending or just giving the vehicle to some other Department by the inter-related departments of the Government concerned is not standing in the way of an insured getting the compensation from the insurer. This is an accepted principle of law well discussed by many decisions of our courts. Therefore, the contention raised on behalf of the appellant herein that the third respondent herein and the fourth respondent herein are liable cannot be upheld; but on the other hand, it is held by this Court that it is only the fifth respondent-herein-Insurance Company alone is liable because Ex. R-2 policy of insurance is valid and enforceable. As already stated, the connection of a trailor bearing different number does not absolve the fifth respondent herein from satisfying its legal liability under Ex. R-2 policy of insurance. In the instant case before us merely because trailor TNY 3880 belonging to the fourth respondent herein had been utilised during the time of occurrence, it cannot be held that the first respondent herein should be absolved from the liability and not liable to pay the insured amount as compensation to the claimants In other words, this Court holds that the Insurance-company-fifth respondent herein is liable. In this regard the finding given by the Tribunal that the Insurance Company is not liable is hereby set aside. It is held in the above circumstances, bearing in mind the fundamental principle of Insurance law, namely, that under the insurance policy the liability of the insurer can arise only if all the terms of the contract as between the insurance company and the owner are fully complied with. In the instant case, though a trailor than the one that has been mentioned in Ex. R-2 has been used, it is not brought in evidence that the trailor attached at the time of the occurrence with the tractor is having latent defects or of dangerous quality so as to entangle itself in an accident and give a dismetrical opposite result. On the other hand, common knowledge arises under such circumstances is that only such a suitable trailor that can be attached with the tractor TNY 3168 so as to make it useful during the time of occurrence has been used during the time of the occurrence. But unfortunately the accident bad occurred. Once again this Court wants to stress that unless some exclusion clause is available in Ex. R-2 policy, the liability of the Insurance Company cannot be held to have been relinquished or extinguished because of the mere technical application or usage of some other trailor which contributes absolutely nothing so as to overthrow the contract that had been contemplated under EX. R-2 policy between the parties concerned either judge-made law or emanated from the competent legislature so as to nullify a valid and enforceable contract of insurance. As already stated, the contract of insurance is uberrima fides, that is, a contract of utmost good faith.

(2.) UNDER the circumstances, though in the grounds of appeal it is mentioned by the appellant herein that respondents 3 and 4 herein are liable, this Court holds that it is only National Insurance Company Limitei-Fifth respondent herein, by virtue of Ex. R-2 policy of insurance, is wholly liable to compensate the claimants/respondents 1 and 2 herein. An order is passed in this appeal accordingly. Under the circumstances, there is no order as to costs.