TMI Blog1987 (4) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification, and that such exclusion was permissible in the context of Section 96(2)(b)(ii)3 for claiming immunity against the obligation to satisfy the judgments against the insured in respect of third party risks. The facts are not in dispute. The Claims Tribunal as also the High Court have concurred with the findings which are recorded in the following passage:- The accident in question took place on November 14, 1964. The truck had come from Barejadi and had been unloaded at Baroda. The driver had gone for bringing snacks from the opposite shop leaving the engine running. The ignition key was in the ignition lock and not in the cabin in the truck as alleged by the driver. The driver had handed over control of the truck to the cleaner. On these facts the driver having been grossly negligent in leaving 1. Andhra Pradesh, Gujarat. Assam, Madhya Pradesh, Orissa. 3. 96. Duty of insurers to satisfy judgments against persons insured in respect of third party risks--(1) If, after a certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceeding is so given shall be entitled to be made a part thereto and to defend the action on any of the following grounds, namely:- (a). xxx (b) that there has been a breach of a specified condition of the policy, being one of the following conditions namely:- (i) xxxx (a) to (d) x x x x (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or XXXX owner even though he had become liable by reason of his vicarious liability he could not be held guilty of the breach of the contractual condition embodied in the policy of insurance. Therefore, the insurer cannot plead any exemption on the ground that the owner had committed breach of the specified condition .... It has been contended on behalf of the Insurance Company that since admittedly there was an exclusion clause, the Insurance Company would not be liable in case at the point of time when the accident occurred the pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insured. In the present case, apart from the question whether Hari Prasad held a driving licence or not, he was neither in the employment of the insured nor was he driving the bus at the time of the accident on the order or with the permission of the insured. The insurer, therefore, is exempt from any liability under the terms of the policy and there is no infirmity even in this conclusion reached by the Tribunal. It has to be noticed that the conclusion of the High Court is backed only by an assertion and not by reasoning. It is therefore of little assistance in resolving the issue. So also the appellant has placed reliance on Orissa State Commercial Transport Corporation, Cuttack v. Dhumali Bewa Ors. etc., A.I.R. 1982 (Orissa) 70 wherein the High Court came to the conclusion that the insurer was not li able. The entire reasoning is contained in the following passage which does not threw any light in regard to the basis of the reasoning or the interpretation of Section 96(2)(b)(ii):- The insurer who is opp. party no.2 in the common written statement denied the averments made in the petitions. It contended that it is not liable to compensate the appellant as the vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of appellant no. 1 should be shifted from him to the National Insurance Co. Ltd., respondent no. 7. The question therefore deserves to be examined afresh on its own merits on principle. Now, the proposition is incontrovertible that so far as the owner of the vehicle is concerned, his vicarious liability for damages arising out of the accident cannot be disputed having regard to the general principles of law as also having regard to the violation of the obligation imposed by Section 84 of the Act which provides that 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 deiver 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 measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. However, in the present case the appellant contends that the exclusion clause is strictly in accordance with the statutorily permissible exclusion embodied in Section 96(2)(b)(ii) and that under the circumstances the appellant Insurance Company is not under a legal ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensation awarded by the Courts would be recoverable from the persons held liable for the consequences of the accident. A Court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recovered, from the person held liable who may not have the resources. The exercise undertaken by the law Courts would then be an exercise in futility. And the outcome of the legal proceedings which by the very nature of things involve the time cost and money cost invested from the scarce resources of the Community would make a mockery of the injured victim, or the dependents of the deceased victim of the accident, who themselves are obliged to incur not inconsiderable expenditure of time, money and energy in litigation. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence.1 The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olent provision by reading it with a non-benevolent eye and with a mind not tuned to the purpose and 1. 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. 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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