Judgment:
Shiv Kumar Sharma, J.
1. Where the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, due to which the accident occurred, then the insurance company cannot repudiate its statutory liability under Sub-section (1) of Section 96 (Section 149 of new Act) on the ground of contravention of condition in policy excluding its liability in case of vehicle being driven by a person not duly licensed. While interpreting the contract of insurance, the Tribunals and courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident, is not defeated on technical grounds.These observations were made by the Apex Court in Sohan Lal Passi v. P. Sesh Reddy, 1996 ACJ 1044 (SC). In the light of these directions I proceed to consider the core question which arises in this appeal in respect of statutory liability of United India Insurance Co. Ltd. (hereinafter referred as 'the insurance company').
2. First the facts. An accident took place on 23.8.1991 near village Kohri where truck bearing No. RJU 6227 dashed with a wall and turned turtle as a result whereof one Gajja who was in the truck fell down and succumbed to the injuries. A claim petition was filed before the Motor Accidents Claims Tribunal by respondent Nos. 1 to 6 claiming compensation. The appellant is the owner of the truck which had been insured by respondent No. 8, the insurance company.
3. According to the claimants the respondent No. 2, Betab Singh, who entered into the truck at village Dhaipura was driving the truck at the relevant time when the accident took place resulting into death of Gajja on account of his rash and negligent driving. Respondent No. 1 Mishrilal (owner of vehicle), respondent No. 2 Betab Singh and respondent No. 3 the insurance company submitted their written statements and pleaded that when Damodar, the licensed driver of the truck got down at village Kohri, Mishrilal the owner of the truck, who was sitting in the truck, persuaded Betab Singh to drive the vehicle. Mishrilal in his written statement admitted that he was present in the truck and when Damodar got down, Betab Singh forcibly started driving the said vehicle whereas Betab Singh stated in his reply that when Damodar got down, Mishrilal persuaded him to drive the truck and said that he would pay wages in consideration. Acceding to the request he sat on the driver's seat and proceeded towards the area where mines are situated. Mishrilal and Betab Singh did not appear in the witness-box.
4. The Tribunal on consideration of materials on record came to the conclusion that the accident was the result of rash and negligent driving of the truck by respondent No. 2 Betab Singh who did not have a driving licence. On that finding the Tribunal discharged the liability of the insurance company and directed the owner and the driver, i.e., appellant and respondent No. 7 to pay an amount of Rs. 2,22,000 along with interest at the rate of 12 per cent per annum to the claimants as compensation. Against the said award the appellant has preferred this appeal.
5. Only argument advanced before me is that the truck was insured with the insurance company. The vehicle being a commercial vehicle covers the risk of third party as well as 6 persons who can travel in the goods vehicle to load and unload material, therefore, insurance company is liable to pay compensation but the Tribunal illegally fastened the liability upon the appellant. Reliance is placed on Santra Bai v. Prahlad, 1985 ACJ 762 (Rajasthan) and Jagdish v. Pokhar, 1992 ACJ 266 (Rajasthan).
6. In order to establish that he had taken all precautions and had not wilfully violated the condition of the policy by allowing a person not duly licensed to drive the truck when the accident took place, the appellant ought to have pleaded and proved such facts. But in the case on hand indisputably, the appellant was in the truck, in his presence driver Damodar got down and Betab Singh sat on the driver seat. It was not possible for Betab Singh to drive the truck without the consent of appellant Mishrilal. In the written statement Betab Singh specifically pleaded that Mishrilal persuaded him to drive the truck in consideration of wages. This pleading was not controverted by appellant Mishrilal. He did not appear in the witness-box. Witness Brijesh Chand Vyas, AW 2, stated that truck owner Mishrilal persuaded Betab Singh to drive the truck. Uncontroverted testimony of Brijesh Chand Vyas, who hired the truck and was sitting in the truck at the relevant time cannot be disbelieved. It is established on the materials on record that it was the insured Mishrilal appellant, who allowed the truck to be driven by Betab Singh not duly licensed, due to which accident occurred.
7. In Santra Bai v. Prahlad, 1985 ACJ 762 (Rajasthan), Full Bench of this Court propounded as under:
(i) in case of a gratuitous passenger going on joy ride or on his own responsibility insurance company is not liable;
(ii) in case of passengers carried for hire or reward or by reason of or in pursuance of a contract of employment in any vehicle the insurance company is liable. This would include owner of the goods as well as his employee.
In view of ratio of Santra Bai's case (supra) I hold that deceased Gajja being employee of hirer Brijesh Chand Vyas, was covered by insurance policy but as the appellant wilfully violated the condition of the policy by allowing Betab Singh not duly licensed to drive the truck, the insurance company cannot be held jointly and severally liable to pay the compensation to the claimants.
8. There is no illegality in the award impugned. I see no reason to interfere in the finding arrived at by the Tribunal.
9. In the result, the appeal fails and is hereby dismissed. Costs easy.