United India Insurance Limited vs Sucheta Chakraborty and Another

Satyabrata Sinha, J.—Having heard the learned counsel for the parties and having perused the application u/s 5 of the Limitation Act, we are satisfied that there was sufficient cause shown by the petitioner in not being able to file this appeal within the prescribed perod. The delay in filing this appeal is condoned. The application u/s 5 of the Limitation Act is allowed. Let the appeal be registered if it is otherwise in form. The sole question which has been raised in this appeal is (sic) to whether the learned Tribunal erred in awarding a sum of Rs. 1,39,500 despite the knowledge to the effect that the vehicle in question was being driven by the daughter of the owner who had no driving licence. The learned Tribunal in his Award has held:

Thus the paramount question to be decided is as to whether the insurer, O/P is liable to cover the liability of the owner when it is found that the person was driving the offending vehicle without having any driving licence. In this connection, I would like to refer the case law as reported in 1991(1) T.A.C. 352 (Ori). In the referred case, His Lordship has observed that it must be established by the insurance company that the breach was on the part of the insured and that it was insured who was guilty of violating the terms of infringement of the contract. Unless 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 promiser (Insured) committed a breach of its promise. While delivering such judgment His Lordships has also taken into consideration the observation of the Apex Court reported in AIR 1985(2) TAC 396.

The learned counsel for the appellant, when questioned, fairly stated that there is nothing to show that at the point of time when the owner''s daughter was driving vehicle, she had the knowledge that she did not have the driving licence.

It is now well, settled by reason of various decisions, some of which had been referred to by the learned Tribunal that it is for the insurance company to show that the vehicle was being driven by a person who did not have licence and the vehicle was allowed to be driven by the owner of the vehicle knowing fully well that driver did not have the licence.

In Rukmani and Others Vs. New India Assurance Co. and Others, , the Apex Court has held that if the insurance company had not summoned the driver and no record from the Regional Transport Authority has been produced, the insurance company is not discharged of its burden of establishing that the driver had no licence so as to exonerate it from its liability. In Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, , the Apex Court has held that onus of proof is upon the insurance company and once insurance company fails to discharge the said onus, it cannot be heard to say that it is not liable. In Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, , the Apex Court, inter alia, held in a case where a truck driver left the truck with engine in motion after handing over control of the truck to the cleaner who was not a duly licensed person, that exclusion clause does not exonerate the insurer as the insured had done everything in his power to keep, honour and fulfil the promise and was not guilty of a deliberate breach. In Sarojdhir & Ors. vs. Vijay Kumar Sharma & Ors., reported in 1999 TAC 252, Punjab and Haryana High Court also took a similar view. Reference in this connection may also be made to Smt. Shamkunwar & Ors. vs. Kamalsingh & Anr., reported in 11(1999) ACC 220 and Oriental Insurance Co. Ltd. vs..Smt. Parkashwati & Ors., reported AJR 1999(1) 199.

For the reasons aforementioned, we are of the opinion that as the appellant has not been able to dischage its onus, it could not be absolved from its liability to pay the insured amount.

For the reasons aforementioned, the point of law that has been raised before us being devoid of merit: both the appeal treating the same as on day''s list and the application are dismissed. Urgent xerox certified copy of this order be supplied on priority basis.