Telangana High Court
The Natioanl Insurance Company ... vs Smt. K. Mariyamma And Another on 5 January, 2023
Bench: M.Laxman
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.
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.
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
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
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
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
THE HON'BLE SRI JUSTICE M.LAXMAN
C.M.A.No.1009 of 2007
Dated: 05.01.2023
ESP
