UNIVERSAL ENTERPRISES Vs. PADMAVATHI

JUDGEMENT

(1.) THE owner of the motor cycle against whom the Motor Accidents Claims Tribunal had passed an award for a sum of Rs. 27, 950, has filed the present appeal challenging the finding exonerating the insurance company. Facts briefly are : THE motor cycle bearing Registration No. MDO 7949 belonging to the appellant, on December 21, 1975, being driven in a rash and negligent manner by one Sekar Jayaraman, hit the deceased-husband of the first respondent, who sustained serious injuries and later died. THE first respondent, therefore, filed O. P. No. 422 of 1976 under section 110A of the Motor Vehicles Act, before the Motor Accidents Claims Tribunal (Chief Judge), Madras, claiming a total compensation of Rs. 30, 000. Since it was alleged that, before the fatal impact, the motor cycle first hit the left front side of a car MDT 6582 belonging to the third respondent and insured with the fourth respondent, respondents 3 and 4 were made parties in the claim petition. THE appellant contested the claim alleging that he had given the motor cycle to a mechanic, Arockiaswamy, for repairs with strict instructions that the same should not be used. Later, he learnt that despite his instructions, the vehicle had been taken by Sekar, son of Arockiaswamy, when the accident had occurred. THE appellant had neither authorised nor permitted Sekar to use the vehicle. THE claim also was excessive. THE second respondent herein resisted the claim contending that the accident was not due to the negligent driving of the motor cycle and, at any rate, since Sekar did not have any valid licence to drive, it was not liable. Respondents Nos. 3 and 4 contended that the accident was solely due to the negligent driving of Sekar and they were not in any way liable to pay compensation.Before the Tribunal, the first respondent examined herself as PW-1 and examined an eye witness to the occurrence as PW-4, the medical officer who treated the deceased as PW-1 and the Police Officer who investigated into the case as PW-2. She had exhibits P-1 and P-2 marked on her side. On behalf of the appellant, one of the partners of the firm was examined as RW-1. THE copy of the insurance policy issued by the second respondent was marked as exhibit R-1. On the above evidence, the Tribunal found that the vehicle had been entrusted by the appellant to his mechanic, Arockiaswamy, and that his son, Sekar, who did not have any licence to drive it had taken the vehicle and the accident had occurred due to his rash and negligent driving. THE Tribunal held that the second respondent, the insurance company, was not liable to indemnify the appellant, since the vehicle had been driven by one who did not hold any licence to drive. THE compensation was assessed at Rs. 27, 950 and the appellant was directed to pay the entire amount. Challenging the finding absolving the insurance company of its liability to indemnify under the policy, the present appeal has been filed by the owner of the motor-cycle. THE only point that was, urged before me by Thiru R. Karunakaran, learned counsel for the appellant, was that, even on the finding of the Tribunal, the second respondent would be liable, in view of the fact that the appellant had entrusted the vehicle to his mechanic for the purpose of carrying out repairs and the subsequent driving of the vehicle by Sekar without the knowledge and without the consent of the appellant, would not constitute breach of any of the terms of the policy of insurance to absolve the second respondent. Learned counsel placed reliance upon two decisions of the Supreme Court, viz., Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 (62) CC 138, 1987 AIR(SC) 1184, 1987 (2) JT 43, 1987 (1) Scale 648, 1987 (2) SCC 654, 1987 (2) SCR 752, 1987 CRLR 400, 1987 (1) ACJ 411, 1987 ACC 413, 1987 SCJ 411, 1987 AIR(SCL) 184 : 1987 (62) CC 138, 1987 AIR(SC) 1184, 1987 (2) JT 43, 1987 (1) Scale 648, 1987 (2) SCC 654, 1987 (2) SCR 752, 1987 CRLR 400, 1987 (1) ACJ 411, 1987 ACC 413, 1987 SCJ 411, 1987 AIR(SCL) 184 and Guru Govekar v. Filomena F. Lobo 1988 (64) CC 630 1988 ACJ 485. and Guru Govekar v. Filomena F. Lobo 1988 (64) CC 630 1988 ACJ 485.Thiru K. Padmanabhan, learned counsel for the first respondent, Thiru A. Devanathan, learned counsel for the second respondent, and Thiru M. V. Chandran, learned counsel for the third respondent, were also heard. THE only question that arises for consideration is whether the driving of the motor cycle by Sekar who did not have a licence to drive would constitute breach of any of the terms of the policy of insurance, thereby absolving the second respondent of its liability " I shall first refer to the two decisions of the Supreme Court relied on by learned counsel for the appellant. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan. 1987 (62) CC 138, 1987 AIR(SC) 1184, 1987 (2) JT 43, 1987 (1) Scale 648, 1987 (2) SCC 654, 1987 (2) SCR 752, 1987 CRLR 400, 1987 (1) ACJ 411, 1987 ACC 413, 1987 SCJ 411, 1987 AIR(SCL) 184 : 1987 (62) CC 138, 1987 AIR(SC) 1184, 1987 (2) JT 43, 1987 (1) Scale 648, 1987 (2) SCC 654, 1987 (2) SCR 752, 1987 CRLR 400, 1987 (1) ACJ 411, 1987 ACC 413, 1987 SCJ 411, 1987 AIR(SCL) 184 and Guru Govekar v. Filomena F. Lobo 1988 (64) CC 630 1988 ACJ 485., a truck had been entrusted to the regular driver and had been taken from Barejadi to Baroda. At Baroda, it was unloaded and leaving the vehicle with the engine running and with the ignition key in the ignition lock, the driver of the truck left the vehicle in charge of the cleaner and went to the opposite shop for some snacks. THE cleaner drove the vehicle and caused the accident. Before the Claims Tribunal, the insurance company disclaimed liability resting on the exclusion clause in the policy of insurance extending immunity, if a breach is committed of the conditions of the policy by permitting a person who did not have a licence to drive the vehicle. THE Tribunal held the owner of the truck, the driver and the cleaner liable to pay compensation and upheld the contention of the insurance company. THE High Court held that the owner of the truck, never gave permission to the cleaner to drive the vehicle and could not, therefore, be held guilty of the-breach of the contractual conditions embodied in the policy of insurance. THE insurer, therefore, was held liable. In the appeal before the Supreme Court, the insurance company challenged this finding. THE Supreme Court went elaborately into the provisions of the Act and rejected the defence built by the insurance company on the exclusion clause. THE court gave the following three reasons for rejecting the same :