ORIENTAL INSURANCE CO LTD Vs. RAJINDER KUMAR

JUDGEMENT

(1.) This appeal is directed against the judgment and award dated 27-3-1991 passed by the learned Motor Accidents Claims Tribunal Kathua, whereby an amount of Rs. 58,000.00 was awarded as compensation by the Tribunal in favour of the claimants.

(2.) It is alleged that the deceased Ram Swaroop, who was the father and husband of the claimants, while on his way on a bicycle, was knocked down and crushed on 28-2-1978 near Kathua by the person driving Bus No. JKN-6902. Even though the bus was not being driven by the regular driver of the bus, it is alleged that Rajinder Kumar driver was instrumental in causing the accident because he has been driving the vehicle at the time of accident. The following issues were framed by the Tribunal on 4-1-1985:-

(3.) After hearing the learned counsel for the parties and perusing the record, I find that the Tribunal took a correct view about the issues involved in the case on application of the judgment of the Supreme Court in Kashi Ram Yadav's case reported in 1989 ACJ 1078: (AIR 1989 SC 2002) where, their Lordships of the Supreme Court while referring to the judgment in Skandia Insurance Co. Ltd. v. Kokilaban Chandravadan, reported in 1987 ACJ 411 -(AIR 1987 SC 1184) reported as under:- The Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the insurance company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot lake the defence of a breach of the condition in the certificate or insurance." Applying the aforesaid principle of law, the question raised by Mr. H. L. Chaudhry, learned counsel appearing for the appellant, as to whether the accident occurred during the course, of or within the scope of employment, loses its significance.