JUDGMENT
[ENTITY], J
1. This appeal under [SECTION] of the [ACT] (for short the 'Act'), is filed by the insurer of the motor vehicle involved in the accident, calling in question the Judgment and award dated 30.5.[SECTION]03 passed in MVC No. 259/[SECTION]00 on the file of the Court of the Prl.Civil Judge (Sr.Dn), Bangalore Rural District (for short the 'MACT').
2. The facts of the case are that:
On 26.4.[SECTION]00 at about 6.30 a.m. near Honnenahalli Channakatte Dabaspet Shivaganga road, the claimant was standing on the left side of the road and at that time the passenger tempo bearing registration No. KA-14/5029 came from Shivagange towards Dabaspet driven at a high speed and in a rash and negligent manner by the driver and dashed against the claimant. Due to the said accident, the claimant sustained grievous injuries like fracture of right pattela, fracture of right humorous, fracture of left femur, fracture of nasal bone and to other parts of the body. The claimant is said to be an agriculturist by profession earning Rs. 4,000/ p.m.
3. The claimant sought compensation of Rs. Two lakhs by filing a claim petition in MVC No. 259/[SECTION]00. The 2nd respondent, Insurance Company, the appellant in this appeal, entered appearance and filed its statement of objections, while the owner and driver though appeared through their counsel, did not file any statement. The appellant, in its written statement took a specific contention that the driver of the vehicle did not possess the valid driving licence to drive the transport vehicle on the date of the accident and therefore, the Insurance Company was not liable to pay compensation in view of breach of terms of insurance policy.
4. In the premise of the aforesaid pleadings of the parties, the MACT framed three issues. Issue No. 2 reads as under:
"2. Whether the respondent No. 2 proves that they are not liable to pay compensation for the reasons stated in the objection statements?"
5. The claimant examined himself as PW-1 and got marked 5 documents as Exs. P1. to P5. On behalf of the respondents, the appellant examined one [ENTITY]. Divisional Officer of the Insurance Company as RW-1 and marked 2 documents as Ex.R1 and R2. The MACT, on the basis of oral and documentary evidence placed on record, rendered a finding of rash and negligent driving by the driver of the motor vehicle causing the accident and resulting in injuries to the claimant. The insurer in this appeal has not questioned this finding of actionable negligence and therefore, there is no need to review the same.
6. The MACT, awarded compensation of Rs. 75,500/- together with interest at 6% p.a. from the date of petition till realization. The insurer has also not questioned the award of compensation to the claimant and the finding on this issue also does not require to be reviewed in this appeal. The insurer has called in question the finding on issue No. 2 by which the MACT fastened the liability on the Insurance Company make payment of the compensation. Hence, this appeal.
7. Sri [ENTITY], learned Counsel for the appellant sought to contend that the MACT had rendered a perverse finding in fastening the liability on the Insurance Company to pay the compensation though Ex.R1, the driving licence authorised the driver to drive the light motor vehicle (non-transport) and therefore, there was breach of terms of policy. Secondly, he contends that due to the said breach, the liability, if any, was only on the owner of the vehicle to make payment of the compensation and not the insurance company.
8. Having heard the learned Counsel for the appellant and perused the impugned Judgment and award, the only question that arises for consideration is whether the MACT was justified in fastening the liability to pay compensation on the appellant-Insurance Company?
9. The appellant adduced the evidence of one [ENTITY], the Regional Manager of the Insurance Company and produced 2 documents viz., the driving licence extract and original policy Exs. R1 and R2 respectively. The Insurance policy for the said motor vehicle was valid for the period from 29.3.[SECTION]00 to 28.3.[SECTION]01. The accident took place on 24.6.[SECTION]00. Therefore, as on the date of accident, there was a valid insurance policy in force. The witness, RW-1 stated that the driver of the vehicle did not possess a valid driving licence to drive the transport vehicle. In support of the said statement, the witness produced Ex.R1, the driving licence extract issued by the licencing authority which discloses that the licence issued on 7.11.[SECTION]01 to Sri. [ENTITY] authorized him to drive light motor vehicle (non-transport) which was valid up to 6.11.[SECTION]17. It is, evident that Sri. [ENTITY], the driver of the motor vehicle did possess a valid driving licence on the date of the accident. The contention of the learned Counsel is that the driver did not possess the driving licence to drive the transport vehicle and therefore there was breach of terms of the policy entitling the Insurance Company to avoid its liability to pay the compensation.
10. The evidence of RW-1 is very scanty and is not in the direction of establishing any breach of the terms of the policy. Mere production of an extract of the driving licence as at Ex.R1 cannot satisfy the requirement of law to prove the breach of terms of conditions of policy. The best witness to speak to the driving licence was the issuing authority who had issued licence. In the absence of his evidence which was very germane to the point in issue, the finding of the MACT cannot be found fault with.
11. It is well settled that when the Insurance Company contends that there is breach of conditions of the policy by the insured, the burden would lie squarely upon the Insurance Company to prove the breach. The Insurance Company would fail, if no evidence is lead on the said allegation of breach of condition of policy. In order to absolve itself of its liability to pay the compensation under the policy and under [SECTION] of the Act, the burden is required to be discharged by the Insurance Company.
12. The Apex Court in the case of [PRECEDENT]., observed as follows:
"[SECTION] of the [ACT], extends immunity to the insurance Company only if a breach is committed of the 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 from holding or obtaining a driving licence during the period of disqualification. The expression "breach" is of great significance. It means "infringement or violation of a promise of obligation". In order to avoid liability, 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 not be in charge of the vehicle. The very concept of infringement or violation of the promise that the expression "breach carries within itself indicates that the violation or infringement on the part of the promisor must be a willfull 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 it can be posited that he has conscientiously 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 cant be said that he is guilty of breach of the promise that the vehicle will be driven only 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."
13. The observation of the Hon'ble Supreme Court in the case of [PRECEDENT]., is:
"In order to resolve this controversy between the parties, it must be observed at the outset that the aforesaid decisions clearly indicate two distinct lines of cases. The first line of cases consists of fact situations wherein the insured are alleged to have committed breach of the condition of insurance policy, which required them not to permit the vehicle to be driven by an unlicensed driver. Such a breach is held to be a valid defence for the insurance company to get exonerated from meeting the claims of third parties who suffer on account of vehicular accidents which may injure them of their breadwinner on account of such accidents caused by the insured vehicles. The other line of cases deals with the insured owners of offending motor vehicles that cause such accidents wherein the insured owners of the vehicles do not themselves commit breach of any such condition and hand over the vehicles for driving to licensed drivers who on their own and without permission, express or impled, of the insured, hand over vehicles or act in a such a way that the vehicles get available to unlicensed drivers for being driven by the latter and which get involved in vehicular accidents by the driving of such unlicensed drivers. In such cases the insurance company cannot bet benefit of the exclusionary clause and will remain liable to meet the claims of third parties for accident injuries. Whether fatal or otherwise the decisions of this Court in [PRECEDENT] and in [PRECEDENT] represent this second line of cases while the decision of this Court in [PRECEDENT] and in [PRECEDENT] represent the first line of cases.
The Supreme Court has further observed as follows:
'In view of the aforesaid two sets of decisions of this Court, which deals with different fact situations, it cannot be said that the decisions rendered by this Court, in [PRECEDENT] and the decision of the Bench of three Judges in [PRECEDENT], in any way conflict with the decisions tendered by this Court in the cases of [PRECEDENT] and [PRECEDENT]"
14. The Supreme Court in the case of [PRECEDENT], .observed as under:
"We are thus in agreement with what is laid down in the aforesaid cases viz., that in order to avoid liability, it is not sufficient to show that the person driving at the time of accident was not duly licensed, The insurance company must establish that breach was on the part of the insured."
(underline supplied).
15. Keeping in mind the established principles laid down by the Apex Court, it is obligatory on the part of the insurance company to establish that the insured was guilty of an infringement or violation of promise, it also has to satisfy the MACT that such infringement or violation on the part of the insured was willful.
16. In the context of the evidence of the respondent with regard to the breach of terms of conditions of policy, it is noticed that RW-1 did not place any material covered by [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT] in order to substantiate disqualification to hold the licence. The specific contention of disqualification taken by the appellant, the burden is also on the appellant to adduce the evidence that the driver was not duly licensed and was disqualified, no material evidence is adduced in this direction.
17. Since on facts, the appellant has not been able to establish willful breach of terms of policy by the insured, it cannot escape from the liability to pay the compensation.
18. Having regard to the principles laid down by the Apex Court and the evidence on record, no exception can be taken to the finding of the MACT fastening liability on the insurance company to pay the compensation. The appeal is misconceived and is dismissed at the stage of admission. No order as to cost.
The registry is directed to transmit the sum of Rs. 25,000/- in deposit before this Court, in this appeal to the MACT, forthwith.