THE HON'BLE SRI JUSTICE M.LAXMAN
CIVIL MISCELLANEOUS APPEAL No.1009 of 2007
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed against the Order dated 10.05.2007 in W.C. Case No.45 of 2006 on the file of the learned Commissioner for Workmen's Compensation & Assistant Commissioner of Labour: Circle-I, Ranga Reddy District, Hyderabad wherein the compensation claimed by the respondent No.1, who was the applicant, for the death of one K. Suleman, who died in the accident that occurred on 29.11.2005 was allowed granting compensation of Rs.2,80,258/- with interest.
2. The main challenge of the appellant-Insurance Company in the present case was that the Tractor & Trailer involved in the accident was used for carrying prohibited goods. Thus, there was violation of permit issued by the Road Transport Authority (for short, "RTA"). The driver of the vehicle was not having valid driving license to drive the vehicle. Hence, the appellant prayed to dismiss the W.C. case.
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3. Heard learned counsel for the appellant as well as the respondent No.2. There is no representation from respondent No.1.
4. The contention of the learned counsel for the appellant is that, as per the permit conditions of RTA, there is prohibition on carriage of goods which are prohibited. The accident occurred when the sand was lifted from Krishna river and while the vehicle was returning to Ananthapuram Village at about 03:00 A.M. There was prohibition in the entire Mahabubnagar District with regard to lifting and transporting of sand. Despite such a prohibition, sand was lifted and transported. In the course of such transportation of sand, the accident occurred. Therefore, there is violation of permit conditions of RTA.
5. The other contention of the learned counsel for the appellant was that, the charge sheet, first information report and the final report clearly show that the driver of the subject vehicle was not holding any valid driving license. The owner of the vehicle has not produced any license of the driver to whom the vehicle was entrusted. Therefore, there is fundamental breach of contract by the insured and the insurance company is not liable to pay compensation.
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6. Learned counsel representing respondent No.2 contended that there is no fundamental breach of contract and violation of permit condition of RTA does not amount to fundamental breach. Such a breach is not a contributing factor for cause of accident. Therefore, there exists liability on the part of insured.
6. In the light of the said contentions, the following substantial question of law arise for consideration in the Appeal:-
Whether the findings of the Commissioner fastening the liability on the appellant-Insurance Company despite there being violation of terms and conditions of policy and failure on the part of the driver in holding valid driving license suffers from any perversity ?
P o i n t:
7. The facts and the evidence on record which are not in dispute are that, the accident occurred on 29.11.2005 at about 3:00 A.M at Rangapur Village. At the time of accident, the Tractor and Trailer was carrying sand. The first information report and charge sheet clearly show that there is charge of theft of sand on account of prohibition imposed by the District Collector, Mahabubnagar District in lifting and carrying sand in the entire District. There is also charge against the driver of the vehicle under Section 181 of Motor Vehicles Act, 1988 (for short, "the 4 Act") for not possessing valid driving license at the time of accident.
8. Now the question before this Court is that, whether the violation of permit condition and failure on the part of driver in holding valid driving license disentitles the applicant-claimant from claiming compensation.
9. As against the appellant, admittedly, there is prohibition with regard to lifting and carrying of sand and the permit also contemplates that except prohibited goods, carrying any other goods in the vehicle is not prohibited. The owner of the vehicle was not made an accused. This clearly indicates that theft of sand was done without the knowledge of the owner.
10. The pleadings of the Insurance Company before the Commissioner do not indicate that theft was done with the connivance of the owner. Therefore, the permit condition is violated by the driver and not the owner. The insured has not violated the terms so as to repudiate the contract of liability of the appellant. Even assuming that there is violation of the permit condition with the knowledge of the insured, such a violation must be fundamental one. Such fundamental breach must have contributed for cause of accident. Violation of permit condition 5 despite there being a prohibition from lifting and carrying sand may be fundamental breach. But such a fundamental breach is not a contributory factor for the cause of accident. Therefore, the appellant-insurance company cannot take advantage of violation of permit condition.
11. Coming to the aspect of the driver not possessing a valid driving license, the owner of the vehicle was not made a party to the offence under Section 181 of the Act. There is no pleading from the appellant that the vehicle was handed over to the driver by the insured. Not only that, there is no pleading that the driver has not possessed any license. The insurance company can disclaim the payment of compensation, if it is pleaded and established that the vehicle was handed over by the insured with knowledge that the driver to whom the vehicle was handed over was not holding any license. Such a pleading and evidence is lacking in the present case. For non-possessing of license by the driver of the vehicle, has no bearing on the liability of the insurance company.
12. Learned counsel for the appellant contended that as per Insurance Regulatory and Development Authority regulation, there is an exclusion clause under which, if it is established that 6 the acts and omissions of the insured are a result of his own illegal act, the Insurance Company is entitled to repudiate the contract and disclaim liability to pay compensation. In the present case, no evidence is let in nor any pleadings are made to the effect that, transportation of sand was illegally done with the knowledge of the owner. In fact he is not a co-accused along with the driver. Moreover, there is no evidence that the vehicle was handed over to the driver by the owner knowingly well that he was not holding valid driving license. For the said reasons, I do not find any merit in this Appeal and the same is liable to be dismissed.
13. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs.
Miscellaneous Petitions, pending if any, shall stand closed.
______________________ JUSTICE M.LAXMAN 05.01.2023 ESP 7 THE HON'BLE SRI JUSTICE M.LAXMAN 177 C.M.A.No.1009 of 2007 Dated: 05.01.2023 ESP