1. These three appeals arise out of the same accident occurred on April 4, 1982. Therefore, they are disposed of by common judgment. The Tribunal below also disposed of all the three original petitions by a common judgment.
2. The appellant is the owner of the vehicle TNH 9145. One Sarata Rani and the respondents in the civil miscellaneous appeals, her husband and children along with one Radha Vallabha Swamy were proceeding in the car TMW 8262 from Tirumala to Madras. When the car reached Anjalamma Kanuma, it is the appellant's case, the driver Dandapani was driving the bus. The driver of the car by name Kabali rashly and negligently drove the car and as a result of which the accident has taken place. Therefore, the appellant is not liable for payment of any damages as compensation for the loss of the lives of Sarala Rani, Kabali, the driver of the car and also for the injuries caused to the first respondent, Suresh Gupta. On the other hand, the case of the first respondent and the widow and children of the driver Kabali is that they were proceeding in the car and when they reached Anjalamma Kanuma on Tirumala-Madras road, the vehicle was driven by one Elumalai, an unauthorised driver, and dashed against the car; as a result of which Sarala Rani, Kabali died and the first respondent sustained serious injuries and consequently they have laid a claim. The Tribunal below has accepted the claim of the respondents. It held that it was Elumalai lhat was driving the vehicle, that he had no licence, that he is an unauthorised driver and that he rashly and negligently had driven the vehicle of the appellanl. Elumalai is no other than the son of the appellant. Therefore, the occurrence hastaken place as a result of rash and negligent driving of the driver Elumalai. Since Elumalai is an unlicensed driver, the Insurance Company is not liable. Accordingly, the Tribunal granted a sum of Rs.41,940/- towards the loss of life, loss of support, pain and suffering and parental affection of Sarala Rani towards her children and her husband. C.M.A. No. 491 of 1986 has been filed against the award of compensation passed in O.P. No. 209 of 1982. For the death of the deceased driver Kabali, a sum of Rs.43,860/- was granted in O.P. No. 211 of 1982 as against the total claim of Rs. 1,20,000/- and against which CM.A. No. 492 of 1986 has been filed. For the injuries sustained by Suresh Gupta, the first respondent, a sum of Rs. 21,200/-was granted as against the claim of Rs.55,000/- in O.P. No. 210 of 1982 and against which C.M.A. No. 493 of 1986 has been filed.
3. Shri K. Somakonda Rcddy, the learned counsel for the appellant, has firstly contended that the appellant had employed Dandapani as a licensed driver, that he was driving the vehicle al the time of the accident and thai he temporarily kept in charge of Elumalai. Therefore, what is required under law, viz., owner entrusting the vehicle to the authorised driver, has been done by the appellant as owner. Merely because an unauthorised driver has driven the vehicle, the liability is not excepted pursuant to the policy. Therefore, the Insurance Company is liable for the payment thereof. In support of his contention, he placed strong reliance on the decision reported in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 Ace CJ 411 : (AIR 1987 SC 1184). The question, therefore, is whether the Insurance Company is liable for the payment of compen-sation for the loss of the lives of Sarala Rani, Kabali the driver of the car and for the injuries caused to the first respondent Suresh Gupta by virtue of the insurance policy taken by the appellant insured against the insurer. Section 96 of the Motor Vehicles Act, Act 4 of 1939 (for short 'the Act), postulates the duty of insurers to satisfy judgments against person insured in respect of third party risks and it reads thus: (at Pp. 1186-87 of AIR)
'96, Duty of insurers to satisfy judgments against persons insured in respect of thirdparty risks:
(1) If, after a certificate of insurance has been issued under sub-section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 95 (being a liability covered by the terms of the Policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor in respect of the liability.....
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as 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 party thereto and to defend the action on any of the following grounds, namely :
(a) xxx xxx xxx xxx
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions; namely:
(i) xxx xxx xxx xxx
(a) to (d) xxx xxx xxx
(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.'
A reading of this section clearly adumbrates the liability of the insurers to satisfy thejudgments against persons insured in respect of third party risks where there is a contract specified under a certificate of insurance issued under sub-section (4) of S.95 of the Act. The exclusion of the liability has been adumrated in sub-section (2), Cl.(b)(ii) of S. 96 and it is only in a case where there has been a breach of the condition, viz., driving by an unauthorised person who is not duly licensed to drive the vehicle or a person who has been disqualified for holding a licence or obtaining a driving licence during the period of undergoing disqualification. The admitted facts in that case are that the driver had left the stationery truck with engine on and temporarily kept the cleaner in-charge, that before he came to the spot, the cleaner had meddled with it, that the vehicle went ahead and dashed against a person and that as a result of which that person died in the accident. While considering that question, in view of the conflicting decisions of the various Courts including this Court, the Supreme Court laid down the principle which reads thus (AIR 1987 SC 1184 at Pp. 1189-90)):
'In order to devine the intention of the Legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keepting in mind the goals to be achieved by enacting the same. Ordinarily it is not the concern of the Legislature whether the owner of the vehicle insuures his vehicle or not. If the vehicle is not insuured, any legal liability arising on account of third parly risk will have to be borne by the owner of the vehicle. Why then has the Legislature insisted on a person using a motor vehicle in a public place to insure against third party risk by enacting S. 94? Surely the obligation has not been imposed in order to promote the business of the insurers engaged in the business of automobile insurance. The provision has been inserted in order to protect the members of the community travelling in the vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to the victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependants of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation 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 involved the time cost and money cost invested from the scarce resources of the community would make a mockery of the injured victims 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 had made it obligatory that no motor vehicle shall be used unless the third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence. (See Section 94 of the M.V. Act). 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 of policy. In order to make the protection real the Legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Sec. 96 and by providing that except and save to the extent permitted by S. 96 will be the obligation of the insurance company to satisfy the judgment obtained against the persons insured against third party risks (vide S. 96). In other words the Legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the Legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the dependants of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the Legislature having regard to the fact that inthe modern age the use of motor veniclcs notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of legislation. The provisions have therefore, to be interpolated in the twilight of the aforesaid perspective.
Section 96(2)(b)(ii) extends immunity to the insurance company if a breach is committed of the condition excluding driving by a named prson or persons or by any person who is not fully licenced, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The expression'breach' is of great significance. The dictionary meaning of 'breach' is 'infringement or violation of the 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 have to 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 the 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 licenced 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 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 licenced driver and placed the vehicle in charge of the licenced driver, with implied mandate to drive himself it cannot be said that the insured is guilty of any breach. And it is only in case ofa breach or a violation of the promise on the part of the insured that the insured 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.'
4. Thakkar, J., laying down those principles that adumbrated held that in a case of exclusion of the liability, it should be construed strictly so as to effectuate the policy of the legislature, viz., covering the risks of the third party and the liability of the insurer to own the liability and thereby the exclusion clauses in the contract are to be strictly construed. There is no dispute with regard to the principles laid therein. It is common knowledge that the accidents occur due to the use of motor vehicles in the public place and it has become a common phenomenon that in the said accident a number of lives of innocent passers by have been lost and as a result of which the dependants are derpived of their right to support them or to eke out their livelihood or the flourishing career of children has been suddenly doomed due to the demise of the earning member of the family. Therefore, the construction should be suth as to effectuate the policy and give benefit to the third parties covering the risks. But, while making such construction, it is also well settled that the court should give effect to the 'intention of the contractual liability undertaken under the contract. It should not run counter to the express language engrafted under the contract. In this case it is not in dispute that under the heading 'General Exceptions' of the Contract it is mentioned that the Company shall not be liable under this policy in respect of any accident, loss, damage or liability caused, sustained or incurred whiles! the Motor Vehicle is being drivern by any person other than a driver. It is now found as a fact that it is Elumalai, the son of the appellant, that drove the vehicle at thetime of the accident though Dandapani, the authorised driver was in the vehicle. In fact the presence of Dandapani in the vehicle cannot be disputed for the reason that imme-diately after the occurrence he went and gave a report about the accident. But, merely because he was present in the vehicle, it does not necessarily mean that he was driving the vehicle. It is found as a fact now from the evidence that Elumalai, the son of the appellant, had driven the vehicle and that he was not a licenced driver. Therefore, under the Contract, if any person other than the licensed driver is found driving the vehicle and the accident has occurred by the unauthorised driver, then the exception engrafted in the contract would be attracted absolving the liability of the Insurance Company. In fact, in paragraph 14 of the decision referred to above, Thakkar, J., held thus: (AIR 1987 SC 1184 at p. 1190, Para 14).
'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 licenced 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.'
Thus it is clear that if an authorised person is found driving the vehicle then there would be a breach of the contract and that thereby the Insurance Company is absolved of its liability under the exception clause engrafted under the contract. It is too much to expect that the Insurance Company continue to keep constant vigil whether all-through the licenced driver or the unauthorised driver is driving the vehicle. It is for the parties to establish as to who is the person driving the vehicle at the time of the accident. If it is found that an unauthorised person or a person who is disqualified to hold the licence, is driving the vehicle, There is a breach of contract and necessarily the exception clause would be attracted and the Insurance Company is absolved of its liability by virtue of the exclusion clauses engrafted under the Contract of liability, in view of the finding recorded by the Tribunal below, which I wholly agree, that it was Elumalai the son of the appellant that drove the vehicle and the said Elumalai was not holding any licence to drive the vehicle, the necessary conclusion is that, though Dandapani, the authorised driver was employed by the appellant, the person who drove the vehicle at the time of the accident is an unauthorised licensee and as a result of which the exclusion clause under the contract got attracted and there is breach of promise and thereby the insurer, viz., the Insurance Company, is absolved of its liability to pay the contracted amount under the policy of the insurance. Therefore, the ratio laid down in the Supreme Court case does not apply to the facts in this case. Even the decision of this Court on which the learned counsel for the appellant places much reliance i.e., Kilari Mammi v. Barium Chemicals Limited, : AIR1979AP75 does not apply to the facts in this case. The facts in that case are that an authorised person was driving the vehicle. But he went out while keeping the cleaner in charge of the vehicle and by the time he returned, the accident has taken place. Therefore, the facts in Skandia Insurance Company's case (AIR 1987 SC 1184) are similar to the facts in Kilari Mammi's case : AIR1979AP75 referred to supra. Therefore, the ratio therein does not apply to the facts in this case.
5. It is next contended that there is no acceptable evidence that Sarala Rani, who died in the accident, was earning any income from the company beloning to P.W.4 and that therefore there is no proof of loss of support to Suresh Gupta, the first respondent and his children, respondents 2 to 4. He placed strong reliance on the observations made by the Tribunal below wherein it is held that there is a doubt as regards the employment of Sarala Rani, the deceased, in P. W.4's company and once this is accepted, then the liability has not been proved. 1 have carefully gone through the evidence and accepted the evidence that there is a discrepancy as to the age of the deceased as spoken to by P.W. 4, the employer and that of her husband P.W. 1. I do not find much discrepancies in their evidence. No doubt P.W. 4 has stated that theage of Sarala Rani was about 24 to 25 years. But admittedly her age was 45 years as spoken to by her husband P.W.1, Suresh Gupta. But, in view of the totality of the facts and circumstnees of the case, I find that the grant of sum of Rs.41,490/- in total appears to be on the high side. Pursuant to the interim directions granted by this Court, the appellant has deposited half of the amount awarded. Therefore, in view of the facts of the ease, it is clear that the amount already depo-sited would be just compensation and would meet the ends of justice. Accordingly, C.M.A. No. 491 of 1986 is allowed and the award of the Tribunal below is modified to the above extent. As regards the demise of Kabali, the driver, the claim is not excessive. Therefore, 1 do not find any justifiable grounds warranting interference. Accordingly, C.M.A. No. 492 of 1986 is dismissed. As regards the injuries sustained by Suresh Gupta, the first respondent, the grant of Rs.21,200/- also appear to be on the high side. Pursuant to the interim directions granted by this Court, half of the amount has been deposited and therefore the said amount would meet the ends of justice. Therefore, C.M.A. No. 493 of 1986 is allowed and the award of the Tribunal below is accordingly modified to the above extent.
6. Sri K. Somakonda Reddy, the learned counsel for the appellant, has placed reliance on the duplicate certificate of the driving lieence belonging to Elumalai. It is seen that the duplicate licence was obtained after the accident and no reasons have been given as to what happened to the original licence and in what circumstnces the duplicate licence was obtained. In those circumstances, it is difficult to place implicit reliance on the duplicate licence said to have been possessed by Elumalai.
7. For the foregoing reasons, C.M.A. Nos. 491 and 493 of 1986 are partly allowed and C.M.A. No.492 of 1986 is dismissed. Therefore shall be no order as to costs.
8. Order accordingly.