SARDARSINGH Vs. BALCHAND @ RAJU

JUDGEMENT

(1.) THIS appeal is directed by the claimants against the award dated 17.1.1997 passed by 1st M.A.C.T., Neemuch in Claim Case No. 7/1996 whereby the non -applicant/respondent Insurance Company was exonerated from paying compensation and non -applicants/respondent Nos. 1 and 2, were directed to pay compensation of Rs. 1,36,000/ - with interest at the rate of 12% per annum.

(2.) THE facts of the case, in brief, are that on 14.11.1995 Kishanlal Banjara, the father of appellant No. 1 and son of appellant Nos. 2 and 3 was travelling in jeep No. M.P. 14B -7188, belonging to respondent Nos. 2 and 4 and insured with respondent No. 3 and driven by respondent No. 1. This jeep met with an accident near village Digaon in Mandsaur District, as a result of rash and negligent driving by respondent No. 1 wherein the deceased Kishanlal sustained injuries and died. The appellants filed claim case seeking compensation of Rs. 15,27,000/ -. The respondents resisted the claim. Respondent No. 3 Insurance Company inter alia averred that respondent No. 1 had no valid and effective driving licence and it was also pleaded that this jeep was insured as private vehicle while it was used as taxi and thereby respondent Nos. 2 and 4 committed violation of the terms and conditions of the insurance policy, therefore, the Insurance Company was not liable to pay compensation. The learned Tribunal on appreciation of evidence held that the accident occurred due to rash and negligent driving of the jeep by the respondent No. 1 in rash and negligent manner. The Tribunal further held that respondent No. 1 was having valid and effective driving licence, however, it held that this jeep was used as taxi for hire in violation of the terms and conditions of the insurance policy and exonerated it. Hence, this appeal by the claimants.

(3.) WE considered the arguments advanced by learned Counsel for both sides and perused the record. It is settled that the burden of proving violation of terms and conditions of the policy is on the insurer. The respondent Insurance Company examined Omprakash, who deposed that the offending vehicle was insured for private use. He stated that if this vehicle was used for transporting passengers for hire, this will be violation of the terms and conditions of the policy and the Insurance Company would not be liable to pay compensation. The respondent Insurance Company did not lead any evidence to prove that this where this jeep was being used as taxi for hire. Jaisingh (C.W. 2) who was travelling in the jeep, when it met with accident. He deposed that he, Raisingh, the deceased Kishanlal and other passengers boarded the jeep at village Sanj Pat for coming to Mandsaur. He did not state that the passengers had paid fare to the driver, under such circumstances, without evidence of payment of fare, it cannot be presumed that this jeep was used as taxi. Even otherwise, if the driver got lifted some passengers and allowed them to travel in the jeep, without knowledge and consent of the owner, it cannot be said that the owner committed breach of the terms and conditions of the policy. There is nothing on record to prove that the driver carried the passengers in the jeep in the knowledge of the owner of the jeep, it is thus, clear that the respondent owner did not wilfully committed breach of the terms and conditions of the policy, therefore, Insurance Company was liable to pay compensation. Their Lordships of the Supreme Court in case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Ors. I (1987) ACC 413 (SC) : AIR 1987 SC 1184, wherein the driver handed over the control of the truck to the cleaner when the engine of the truck was running and the cleaner drove the truck and accident occurred. The Insurance Company contended that there was breach of the terms and conditions of the policy, therefore, it was not liable to pay compensation. The Apex Court rejected this argument and held that the breach was not committed by the owner and the Insurance Company cannot be claim exoneration. Their Lordships observed: The very concept 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 promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? 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. It must be established by the Insurance Company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promiss. Not when some mishap occurs by some mischance. 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.