New India Assurance Co. vs Gh. Rasool and Others

Sunil Hali, J.—Two claim petitions came to be filed before the Motor Accidents Claims Tribunal, Doda by respondent No. 1/claimant. It

was stated in the claim petitions that respondent No. 1 alongwith his two minor sons while traveling in a vehicle bearing registration No. JKS-4851

from Malhori to Pul Doda met with an accident due to rash and negligent driving by its driver in which his two minor sons died. The said vehicle

was owned by respondent No. 2 and was insured with the appellant-company.

The claim petitions were contested by the respondents before the Tribunal on the following grounds:

That the petition was not maintainable as the driver of the vehicle was not impleaded as party respondent.

That the offending vehicle was being driven by an unauthorized person, who did not have a valid licence at the time of accident.

The question whether respondent No. 1/claimant while traveling in the goods Carrier vehicle alongwith his minor sons as gratuitous passengers

was entitled to seek compensation which was to be determined by the Tribunal. The Learned Tribunal after framing five issues and recording the

evidence, passed an award of Rs. 1,50,000/- in each petition in favour of the claimant alongwith interest @ 9% per annum from 1st January, 1998

till its realization. It is in these Circumstances, the present appeals have been filed by the appellant-company.

At the very outset it is noted that appellant has not chosen to file an application u/s 170 of the Motor Vehicle Act to question the awards on any

other grounds in addition to the grounds provided u/s 149 Clause 2 of the Act. The awards have been questioned by the appellant-company on

the following grounds.

1) That an unauthorized person having no valid licence was driving the vehicle.

2) That the deceased were traveling in a goods Carrier vehicle as gratuitous passengers, the appellant company was not liable to indemnify the

insured and pay any compensation to the claimant.

3) That the driver was not impleaded as party respondent before the Tribunal.

On the other hand, Learned Counsel for the respondent-claimant states that impleadment of the driver was not necessary. It has been further

stated that the pleas taken by the appellant-company were required to be proved, which they have failed to do so. The appellant-company cannot

be permitted to question the awards on any other ground except the grounds mentioned u/s 149 sub Clause 2 of the Motor Vehicle Act.

I have heard Learned Counsel for the parties and perused the record. The word 'breach' expressed in Section 149 Sub Clause (2) is of great

significance. The dictionary meaning of 'breach' is infringement or violation of a promise or obligation. It is, therefore, abundantly clear that the

insurer was under an obligation to establish that the insured was guilty of an infringement or violation of a promise that the person authorized to ply

the vehicle was not having a valid license or that the offending vehicle was not having a permit of his transport vehicle. The very concept of

infringement or violation of the promise which the expression 'breach' carries within itself induces an inference that the violation or infringement on

the part of the promisor must be a willful infringement or violation. Unless the insured is at fault or is guilty of a breach, the insurer cannot escape

from the obligation to indemnity the insured.

Applying the aforementioned principles in the present case, the appellant-company has failed to prove that the vehicle was being driven by an

unauthorized person. Regarding second contention that the deceased were gratuitous passengers traveling in the goods carrier would not entitle to

compensation is also not well founded. There is no dispute regarding this proposition that a gratuitous passenger traveling in a goods carrier vehicle

does not cast his liability on the insurance company to reimburse the insurance. However, this fact is to be pleaded and proved by the insurance

company. Undoubtedly, nothing has been done in the present case. In absence of any proof, the contention of the appellant-company cannot be

accepted.

The next contention is that the driver was not a necessary party and no proceedings can be initiated in his absence. It is not in dispute that tort

feasor is a proper party. It is tort's liability, for which the owner is to reimburse for the act of his servant. The owner was already a party before the

court below. No other ground has been urged by the appellant-company nor any plea raised by it in the appeal.

In view of the above, I do not find any merit in these appeals, the same are, accordingly, dismissed.