RAM PHAL Vs. KRISHNA MAKKAR

JUDGEMENT

(1.) THIS appeal by the appellant as owner of the vehicle was admitted on the short question with respect to liability of the Insurance Company. The questions of negligence and quantum have not been challenged in this appeal.

(2.) THE Insurance Company was absolved of its liability solely on the ground that on the date of accident the driving licence of the insured had expired. It is not disputed at the bar that the driver of the ill-fated truck had a valid licence upto 16-11-1984 and while the accident took place on 17-11-1984 the licence was got renewed on 28-11-1986.

(3.) COUNSEL for the appellant has relied upon United India Fire and Genl. Ins. Co. Ltd. v. Ayisa and Ors. 1979 ACJ 526, wherein it has been held that the Insurance Company cannot avoid the liability as the driver of the vehicle who drove it had not been disqualified from holding the licence and further found the Company to be liable for an accident caused by the driver who at one time held a valid licence with him. The learned Counsel further contends that in the absence of any evidence on the record that the insured had placed the vehicle in charge of an person who did not have a driving licence, the insured can not be held guilty of breach of promise and the Insurance Company cannot be absolved of its liability. In order to buttress this submission, he relies upon Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Ors. 1987 (1) PLR 665, wherein their Lordships of the Supreme Court has observed as under: Section 96(2)(b)(ii) extends immunity to the Insurance Company if a breach is committed of the condition excluding driving by a named person or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The expression 'breach' is of great significance. The dictionary meaning of 'breach' is infringement or violation of a promise or obligation' (See Collins English Dictionary). It is, therefore, abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is not duly licensed will have to be in charge of the vehicle. The very concept of infringement or violation of the promise that the expression 'breach' carries within itself induces an inference that the violation of 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 ay 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 the 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 promise. Not when some mishap occurs by some mischance. There is not an iota of evidence on the record that the insurred owner had ever committed any breach of the promise, rather there is a positive evidence on the record to show that he handed over the vehicle to a driver who was holding a valid driving licence and he had taken all possible care not to commit any breach of the policy, Counsel for the respondent was unable to controvert the admissions made by the counsel for the appellant in which I find force.