Nirmal Singh, J.@mdashThis order shall dispose of above said two appeals arising out of common award dated 17.1.2003 passed in two petitions by the Motor Accidents Claims Tribunal, Faridabad (for short, ''the Tribunal''). In Claim Petition No. 226 filed by Surinder Kumar, Tribunal has awarded compensation of Rs. 10,899 whereas in Claim Petition No. 227, it has awarded compensation of Rs. 2,35,200 with interest at 9 per cent per annum from the date of petition till realisation in both the petitions, to be paid by the respondents jointly and severally.
2. The brief facts of the case are that on 26.12.1999, Ram Prashad (deceased) and Surinder (respondent No. 1 in F.A.O. No. 1404 of 2003) boarded tractor No. HR 52-1256 from Bhawan Kund, Palwal for going to their village Devli. The said tractor was being driven by Subhash Singh, driver, rashly and negligently and at about 4.15 p.m., when they reached near Narula Rice Mill in the area of Sadar Palwal, the tractor turned turtle along with the trolley due to which the same fell into ditch, as a consequence of which Ram Prashad and Surinder received grievous injuries. Ram Prashad succumbed to his injuries.
3. The legal heirs of Ram Prashad filed claim petition, claiming compensation to the tune of Rs. 5,00,000 whereas Surinder, injured, filed claim petition for compensation to the tune of Rs. 3,00,000 for his injuries before the Tribunal, who awarded compensation as stated in para 1 of the order, against which the above said two appeals have been preferred by appellant insurance company.
4. Mr. Neeraj Khanna, learned Counsel for the appellant, submitted that the insurance company is not liable to pay the compensation in respect of the passengers travelling in the trolley. He submitted that trolley in which Ram Prashad, deceased and Surinder, injured, were travelling, was not insured with the company. He further submitted that the owner had got the tractor insured for agriculture purposes and not for carrying passengers and, therefore, the insured has violated the terms and conditions of the policy. He further contended that the driver of the offending vehicle was not having a valid driving licence and, thus, the insurance company is not liable to pay the compensation.
5. After hearing the learned Counsel for the parties and perusing the record, we are of the considered opinion that there is no illegality or infirmity in the impugned award dated 17.1.2003.
6. The offending tractor was being driven by Subhash Kumar, driver. He was having a valid driving licence. The said licence had been issued by the Licensing Authority, Hathin, which was valid up to the year 2018. The driving licence, Exh. P1, has been duly proved on the record by the claimants by examining Vinod Kumar, PW 1, ahlmad. The learned Tribunal, after appreciating the evidence on record, has rightly come to the conclusion that the driver of the offending vehicle was driving the vehicle rashly and negligently but he was having a valid driving licence.
7. Admittedly, the offending vehicle, i.e., tractor, was insured comprehensively against the premium of Rs. 2,076 with the appellant company. Now the question to be seen is whether any agriculture instrument attached to the tractor is deemed to be insured along with the tractor. The word ''tractor'' has been defined in the Motor Vehicles Act, 1988 as under:
''tractor'' means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller.
A perusal of the definition of the word ''tractor'' shows that the tractor itself is not able to carry any load without the equipment. Therefore, any equipment attached to the tractor is a part of the tractor and covered under the insurance policy.
8. The next contention of the learned Counsel for the appellant that deceased Ram Prashad and Surinder, injured, had taken the lift from the driver without the consent and knowledge of the owner and, therefore, it tantamounts to breach of the terms and conditions of the insurance policy, has also no legs to stand. The point has been thoroughly dealt with by the Hon''ble Apex Court in
...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 not 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 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 promise. 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 insured is guilty of any breach. And it is only in case of a breach or a violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause. In a way the question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine. The discussion made in para 239 of Breach of Contract by Carter, 1984 Edn., under the head Proof of Breach, gives an inkling of this dimension of the matter:
Exculpation of a promisor.--Given a presumption of absoluteness of obligation, a promisor who is alleged to have failed to perform must either prove performance or establish some positive excuse for any failure on his part. In other words he must find exculpation from what is presumed to be a breach of contract, either in the contract itself or in some external rule of law. These are five grounds for exculpation: construction of the contract; the doctrine of frustration; the existence of an implied term; the presence of an exclusion clause; and the application of a statutory rule or provision. These will be considered later.
In the present case even if the promise were to be treated as an absolute promise the grounds for exculpation can be found from Section 84 of the Act which reads thus:
84. Stationary vehicles.--No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver''s seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measure taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.
In view of this provision apart from the implied mandate to the licensed driver not to place a non-licensed person in charge of the vehicle, there is also a statutory obligation on the said person not to leave the vehicle unattended and not to place it in charge of an unlicensed driver. What is prohibited by law must be treated as a mandate to the employee and should be considered sufficient in the eyes of law for excusing any non-compliance with the conditions. It cannot, therefore, in any case be considered as a breach on the part of the insured. To construe the provision differently would be to re-write the provision by engrafting a rider to the effect that in the event of motor vehicle happening to be driven by an unlicensed person regardless of the circumstances in which such a contingency occurs, the insurer will not be liable under the contract of insurance. It needs to be emphasised that it is not the contract of insurance which is being interpreted. It is the statutory provision defining the conditions of exemption which is being interpreted. These must, therefore, be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim. To do otherwise would amount to nullifying the benevolent provision by reading it with a non-benevolent eye and with a mind not tuned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the legislature has given, the court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent. In fact it appears that the former view is more plausible apart from the fact that it is more desirable. When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of ''reading down'' the exclusion clause in the light of the ''main purpose'' of the provision so that the ''exclusion clause'' does not cross swords with the ''main purpose'' highlighted earlier. The effort must be to harmonise the two instead of allowing the exclusion clause to snipe successfully at the main purpose. This theory which needs no support is supported by Carter''s Breach of Contract vide para 251. To quote:
Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the ''main purpose rule'', which may limit the application of wide exclusion clauses defining a promisor''s contractual obligations. For example, in Glynn v. Margetson & Co. (1893) AC 351, Lord Halsbury, L.C. stated:
It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.
Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societe D'' Armement Maritime S.A. v. N.V. Rotterdamsche Kolen Centrale (1967) 1 AC 361. Accordingly, wide exclusion clause will be read down to the extent to which they are inconsistent with the main purpose or object of the contract.
9. The insurance company has not led any evidence to prove that Ram Prashad, the deceased and Surinder, injured, were gratuitous passengers. Till the insurance company proves that the deceased and injured were the gratuitous passengers in the trolley, it cannot be exonerated from its liability.
In view of the above, there is no merit in both the appeals and the same are hereby dismissed.
