A.S. Oka, J.@mdashThe appellant insurer by this Appeal has taken an exception to the Judgment and Award dated 19th August 2010 passed by the learned Member of the Motor Accident Claims Tribunal in a claim petition filed by the respondent nos.1 and 2 on account of death of one Deepak Shantaram Shevale who is the son of respondent nos.1 and 2. The case made out in the claim petition is that the deceased Deepak was plying a motor cycle from Malwadi to Deola Bus Stand. The accident occurred on 5th January 2007. The case made out in the claim petition is that at that time a tractor and trolly attached thereto owned by the third respondent came from the opposite direction in a very high speed. The allegation is that the driver of the tractor was driving the tractor and trolley in a very high speed. The allegation is that the driver was driving the tractor and trolley in a rash and negligent manner. As a result of dash given by the tractor and trolley, the deceased sustained injuries and ultimately, he succumbed to the injuries sustained in the accident. The claim of Rs. 3,00,000/- was made in the claim petition. Notice for final disposal was issued on 27th January 2011.
2. The respondent no.3 filed written statement. It was alleged in the written statement that the deceased was plying his motor cycle in a high speed. It is alleged that the near the spot of accident, there were many persons. At that time, the tractor and trolley was stationary at the diesel pump for filling diesel. The allegation is that as the deceased was driving the motor cycle in a high speed, he lost control over the motor cycle and gave a dash to the stationary tractor and trolley. The respondent no.3 contended that the tractor and trolley were validly insured with the appellant for the period between 15th February 2006 to 14th February 2007.
3. The appellant filed written statement. The appellant did not dispute the policy of insurance. The appellant contended that the driver of the tractor was not holding a valid and effective motor driving licence at the time of accident and hence, the respondent no.3 committed breach of terms and conditions of the policy. It was contended that the tractor was not being plied for agricultural purpose at the time of accident and hence, the appellant was not liable to satisfy the Award which may be passed against the respondent no.3. The respondent no.1 examined himself as a witness. The appellant examined one Niraj Dilip Shivangikar who is the claim executive as a witness.
4. The learned Member of the Tribunal held that the accident occurred due to rash and negligent driving of the tractor and there was no contributory negligence on the part of the deceased. An issue was framed on the basis of the contention of the appellant that the driver of the tractor was not holding a valid driving licence. The learned Member of the Tribunal held that the tractor is a light motor vehicle and the driver was holding a licence to drive the light motor vehicle (N.T.). Therefore, it was held that the appellant has failed to prove the breach of terms and conditions of the policy.
5. The first submission of the learned counsel for the appellant is that the appellant had obtained a leave u/s 170 of the Motor Vehicles Act, 1988. His submission is that only on the basis of the registration of the offence against the driver of the tractor, a finding on the issue of negligence could not have been recorded. He submitted that there was contributory negligence by the deceased. He submitted that admittedly at the time of accident, the trolley meant for transport of goods was attached to the tractor and therefore, the tractor was a transport vehicle. He submitted that admittedly, the trolley was carrying sand. He submitted that the driver of the tractor was holding a licence to drive a light motor vehicle of non-transport category and therefore, the driver was not authorised to drive the tractor at the relevant time. He submitted that allowing the driver to ply the tractor with trolley without holding proper licence amounts to breach of terms and conditions of the policy of insurance. After pointing out Judgment of the Apex Court in case of
6. He also relied upon the decision of the Apex Court in case of
7 The learned counsel for the first and second respondents urged that in view of the decision of the Apex Court in case of National Insurance Company v. Swaran Singh (supra) the burden was on the appellant to prove the breach of terms and conditions of the policy of insurance by the insured. He submitted that in any case, in view of the said decision, the alleged breach of terms and conditions of policy of insurance as regards the driver not holding a license for driving transport vehicle should be proved to be such that the same has contributed to the cause of accident. He submitted that the decision of the larger Bench of the Apex Court in the case of National Insurance Company Limited v. Swaran Singh is operating in the field and the decisions of the Apex Court which are relied upon by the appellant are not of Bench of three Hon''ble Judges. He pointed out that the facts of the case before the learned Single Judge of this Court in case of National Insurance Company Ltd. v. Sushila Bande (supra) were completely different. He submitted that the view taken in the said decision will not apply to the present case. The learned counsel relied upon the decision of this court in case of United India Insurance Company Ltd. v. Sindhubai w/o Kondiram Darwante and Others [2010 All M.R. (Supp.) 220]. He submitted that even if this Court comes to the conclusion that the appellant has proved the breach of terms and conditions of the policy of insurance, this Court can always direct the appellant-insurer to pay the compensation amount and thereafter to recover the same from the insured. The learned Counsel for the third Respondent supported the impugned Judgment to the extent to which the same holds the appellant liable. The learned counsel for the appellant submitted that the decision of the Single Judge of this Court in the case of National Insurance Company v. Sushila Bande (supra) is squarely applicable which will have to be followed in the present case.
8. The first question to be decided is whether the insured has established the breach of terms and conditions of the policy of insurance by the insured. As stated earlier, the son of the first and second respondents died in an accident involving a tractor and trolley which was driven by the driver appointed by the third respondent.
9. The appellant examined one Niraj Dilip Shivangikar as a witness. He was employed by the appellant as a legal executive. The witness stated that the driver of the tractor one Bhausaheb Nikam was holding a licence to drive LMV (NT) on the date of accident and on the basis of the said licence, he was not entitled to drive LMV (tractor and trailer). The witness stated that at the time of accident, the tractor was being used for a commercial purpose and not for agricultural purpose. The licence of the said driver was produced at Exh.40 which records that the driver was authorised to drive the LMV (NT).
10. It will be necessary to make a reference to the definition of tractor under sub-section 44 of section 2 of the said Act. Sub section 44 reads thus:
Section 2(44) _ 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;
The trailer has been defined under sub-section 46 of section 2 which reads thus:
Section 2(46)_ trailer_ means any vehicle, other than a semi-trailer and a side- car, drawn or intended to be drawn by a motor vehicle;
The transport vehicle has been defined under sub-section 47 of section 2 which reads thus:
Section 2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;
Thus, a tractor by itself is not a transport vehicle. If a trailer is attached to the tractor and if the trailer is meant for carrying goods, the tractor and trailer taken together will become a transport vehicle being a goods carriage under sub section 47 of section 2 of the said Act.
11. The learned counsel for the appellant has placed reliance on the decision of this Court in case of National Insurance Company Limited v. Sushila Bande (supra). This was a case where a tractor and trailer/ trolley were involved in the accident. This was a case where the insurer of the tractor came out with a case of breach of terms and conditions of the policy on the ground that the driver of the tractor possessed a licence only to drive a light motor vehicle. In paragraph 17, the learned Single Judge considered the case of the National Insurance Company Ltd. v. Swaran Singh and others (supra). In paragraph 17 the learned Single Judge has held thus :
17. In the case of
In paragraph 29 the learned Judge has held thus:
29 Considering the case laws discussed above and the facts of this case it is clear that the accident had occurred due to rash and negligent driving of the tractor which was drawing trolley and it was fully loaded with manure and was being driven in high speed on slope without giving necessary attention to the attending circumstances. So, it is not proved that the accident was due to mechanical defect. Assuming for a moment that there was breakage of the tiepin, still it was not something which could not have been easily detected by the owner or the driver. No evidence is led to prove that there was any latent defect which caused the accident. In absence of any evidence, it cannot be said that the accident had taken place due to mechanical defect. The driving licence of respondent no.6, the copy of which is produced by respondent No.7, clearly indicates that respondent no.6 was authorised to drive light motor vehicle but not the tractor used as goods carriage vehicle. So there is breach of terms and conditions of policy. Respondent no.6 driver was not authorised to drive the tractor trolly used to transport manure though he was authorised to drive only tractor. There is also breach of condition in as much as persons were carried on the heap of manure in the trolley which was goods carriage vehicle. So there was breach of policy and so the appellant is not liable to pay compensation. As such this Appeal deserves to be allowed.
12. Coming back to the facts of the present case, the licence at Exh.40 of the driver is of light motor vehicle of non-transport category which was valid on the date of accident. Under clause 21 of section 2 of the said Act, a light motor vehicle includes the transport vehicle. In fact, the definition of light motor vehicle shows various categories of vehicles have been included in the definition including a transport vehicle. As stated earlier, a tractor becomes a transport vehicle only when a trailer is attached to it. The trailer in the present case was admittedly meant for carrying goods.
13. Thus, the driver was not authorised to drive the light motor vehicle which was a transport vehicle. In the present case, there is no case made out of mechanical failure or any other cause having no nexus with the driver not possessing a licence authorizing him to drive the particular type of vehicle. A driver who was authorized to drive only a light motor vehicle was driving a light motor vehicle having a trailer attached which was meant to be used for carriage of goods. The Tribunal has not accepted the case made out in the written statement that the tractor and the trailer were stationary. It cannot be said that breach committed is not fundamental. It is not the case made out in the written statement of the owner of the tractor and trolley that the same was being driven by the driver Bhausaheb without his consent. On the contrary, in paragraph 11 of the written statement, owner stated that the said Bhausaheb was his driver. It is not the case of the insured that he was not aware that the said Bhausaheb did not possess a licence for driving a transport vehicle. In fact the owner did not step into the witness box. The driver was not at all competent to drive a light motor vehicle with a trailer used for carriage of goods attached to it. Thus he allowed the driver to drive a transport vehicle though he was aware of the fact that the driver was not entitled to drive such a vehicle. Thus, there was failure on his part to exercise reasonable care in the matter of complying with the policy condition regarding allowing insured vehicle to be used only by a person holding a valid driving licence.
14. The learned Member of the Tribunal in paragraph 15 of the Judgment was impressed by the fact that the definition of tractor shows that it is not a goods carriage or transport vehicle. But he has ignored that the trailer was attached to the tractor. Therefore, the finding that the said Bhausaheb had authority to drive the tractor with trailer which is the light motor vehicle of non transport category is completely erroneous.
15 In the case of National Insurance Co Ltd v. Swaran Singh (supra), the law has been summarized in paragraph 110 thereof. Clauses (iii) to (vii) of paragraph 110 which read thus:
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
1. Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer u/s 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(Emphasis added)
16. The law laid down in case of National Insurance Company v. Sushila Bande (supra) will have to be followed in the present case especially when this Court has considered the Judgment of larger Bench of the Apex Court in case of National Insurance Company Ltd. v. Swaran Singh (supra).In the facts of the present case, the negligence on the part of the insured of allowing a person not possessing a licence to drive a transport vehicle has been established. The breach was a fundamental breach. In view of clear factual position, the discretion of directing the insurer to pay and recover cannot be passed in the facts of the case though there is a power vesting to do so.
17. Though the breach of the terms and conditions of the policy was established, the Tribunal committed an error in holding the appellant liable. As the appellant will have to be held as not liable, it is not necessary to go into the question of quantum of compensation.
18. Hence, I pass the following order:
i) Impugned Award is set aside to the extent to which the appellant is held liable to satisfy the Award made against the third respondent.
ii)The claim application stands dismissed as against the appellant. However, the Award made against the third respondent is hereby confirmed.
iii)Appeal is partly allowed on above terms with no order as to costs.
iv)Civil Application no.158 OF 2011 does not survive and the same is disposed of.
