S JANARDHAN RANGAIAH Vs. JAMINDARI RAMADEVI

JUDGEMENT

(1.) Respondents filed a claim petition seeking compensation of Rs.2,00,000/- from the appellant and 3rd respondent for the death of Thrilok Naidu (the deceased), husband of 1st respondent and father of 2nd respondent, alleging that the deceased died due to an accident that occurred due to the rash and negligent driving of the appellant when he was travelling in the lorry belonging to the appellant, insured with the 3rd respondent. The appellant remained ex pane before the Tribunal. 3rd respondent filed a counter contesting the claim. In support of their claim, Respondents 1 and 2 examined 2 witnesses as PWs.l and 2 and marked Exs.A-1 to A4. 3rd respondent examined one witness as RW-1 and marked Ex.Bl on its behalf. The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the lorry of the appellant and that Respondents 1 and 2 are entitled to Rs.50,000/- as compensation from the appellant only and exonerated the 3rd respondent from liability, on the ground that the driver of the lorry who caused the accident was not having a valid driving licence. Aggrieved thereby, the 1st respondent in the Tribunal, who is the owner of the lorry involved in the accident, preferred this appeal.

(2.) The contention of the learned Counsel for the appellant is that the Tribunal was in error in holding that 3rd respondent is not liable to pay the compensation payable to the claimant, i.e., Respondents 1 and 2 merely on the assumption that the driver, who was driving the vehicle at the time of the accident, was not having a valid driving licence. It is his contention that since the appellant did not entrust the lorry to the cleaner of the lorry, who was driving the vehicle at the time of the accident, and entrusted the vehicle only to a person having a valid driving licence i.e., the deceased. 3rd respondent also is liable to pay the compensation payable to Respondents 1 and 2. It is his contention that the cleaner, who was driving the vehicle at the time of accident does have a valid driving licence. He placed strong reliance on Sohanlal Passi v. P.Sesh Reddy, 1997 (1) ALD (SCSN) 3 = AIR 1996 SC 2627, where it is held that, if the insured has taken all precautions by appointing a duly licenced driver to drive the vehicle in question, and if it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licenced, the insurer cannot repudiate its statutory liability under the Motor Vehicles Act. He also relied on National Insurance Company v. Swaran Singh, 2004 (2) ALD 36 (SC) = Decisions Today SC 2004 1, in support of the said contention. The contention of the learned Counsel for the third respondent is that, since the driver who was driving the lorry at the time of accident was not having a valid licence, there is a breach of conditions of the policy, and so, 3rd respondent is not liable to pay the compensation payable to Respondents 1 and 2.

(3.) In view of the ratio in Swaran Singh's case (supra), the burden to avoid its liability is on the 3rd respondent (insurer) to establish that there was a breach of the terms of the policy by the owner of the vehicle. The evidence of RW-1 does not show that the appellant authorized the cleaner of the lorry to drive the lorry at the time of the accident. The deceased, who was appointed as driver of the lorry by the appellant was having a valid driving licence. If the deceased, without the knowledge of the appellant, had entrusted the lorry to the cleaner, who is not authorized by the appellant to drive the vehicle, the insurer cannot avoid its liability in view of the ratio laid down in Sohan Lai's case (supra). Therefore, the Tribunal was in error in exempting the 3rd respondent from its liability. 3rd respondent is liable to pay the compensation payable to Respondents 1 and 2.