V.V. Kamat, J.

This appeal by the Insurance Company came up before us after its admission to consider the application for stay in the shape of C.M.P. 1163 of 1997. Hearing the learned counsel we decided to hear the appeal on merits. This was in view of determination as to whether the appellant-insurance company can avoid liability on the ground as pleaded that there is no valid driving licence. We considered the factual matrix also with the help of the record and proceedings before us.

2. The learned counsel for the appellant, we would like to record has shown her forensic ability and competence not only in regard to placing before us all necessary details of the factual matrix, but the learned counsel has taken pains to place before us all the relevant decisions, both of this court as well as of the apex court in the context. We consider that we would fail in our duty not to acknowledge and appreciate the labours of the counsel Mrs. P. A. Raziya. This is more so when the learned counsel for preparation persuaded us to accommodate her by postponing the hearing of the appeal not only on November 3,1997, but also on November 5,1997 and today we heard the counsel.

3. Initially, the necessary and relevant factual matrix would need a spread over. The incident occurred on October 30,1992 at about 7.30 pm when the" claimant was riding a cycle through Aluva- Munnar road to reach a place known as Thangalam. At this place a scooter - KL 7-A-1676 - undisputedly owned by one Jomy Paul (R1) and driven by one Kunjubava (R2) and insured with the appellant (R3) gave a dash and hit to the cycle. This was, it was averred, on account of the rash and negligent driving of the scooter. The claimant was a student of commerce and in the process suffered in his studies apart from sustaining injuries. He was aged 19 years and claimed compensation of Rs. 1,96,000/- in the petition before the M.A.C.T., Muvattupuzha.

4. As usual, the driver as well as the owner stayed away from the proceedings before the Tribunal, remaining ex parte. The appellant (R3) admitted insurance of the vehicle. It is pleaded that the driver had no valid driving licence and therefore there is no liability as a result of the violation of the terms of the policy.

5. To be precise, the pleading in the context is as follows:

"The insured ie. the 1st respondent has not so far produced the vehicular records or driving licence for verification. Hence this respondent denies the existence of valid driving licence to the IInd respondent at the material time."

It would be seen that in regard to this question in the impugned award, issue No. 3 was framed by the Tribunal as to who is liable to pay compensation to the petitioner. In paragraph 8 of the award the Tribunal, after recording a finding of rashness and negligence in driving the scooter by Kunjubava (R2), has observed that insurance of the vehicle was admitted and in regard thereto the contention is that there is no valid driving licence and therefore, the insured-the owner (R1) had violated the conditions of the policy resulting into the situation that the appellant-insurance company could not be held liable.

6. In the process of discussion of this aspect the Tribunal has observed in the following manner: -

"Insurance of the vehicle was admitted. But they contended that the 1st respondent had no valid driving licence and the insured had violated the condition of the policy and so they are not liable. Counsels for the 3rd respondent relied on the gist of the charge sheet in Ext. A-10 to the effect that police had registered a petty case against the owner of the vehicle for allowing a person who had no valid driving licence and against the driver for driving the Vehicle without driving licence and argues they are not liable."

The Tribunal has observed that it is true that the police had submitted a charge on the ground that the driver had no driving licence and the owner had allowed a person who had no valid driving licence to drive the vehicle under S.3,5 r/w Ss.180 and 181 of the Motor Vehicles Act. The Tribunal observed further that this would not discharge the burden cast on the appellant and they have to prove it independently before the Tribunal. It has also observed that it is not known as to what happened to the criminal case against the owner and the driver of the vehicle. It was because, the Tribunal continues to observe, the insurance company had filed an application (LA. 383/96) with a prayer for a direction to the 2nd respondent to produce the driving licence and the said LA. 383/96 came to be discussed for "not complying with the order made therein". We have taken care to see the proceedings of I. A. 383/96 to find that on February 24,1995 the said proceedings stood closed as stating "No step taken. Hence this application is dismissed." The learned counsel stated before us that this was a result of not taking steps in pursuance of the order dated February 15, 1996 whereby the Tribunal issued notice to the other side. It will have to be stated that this was dismissed for want of prosecution of the proceedings of LA. 383/1996.

7. The Tribunal has proceeded further on the assumption that the driver (R2) had no driving licence and then observed that this situation even will not absolve the insurer from their liability unless they further pleaded and proved that the insured had wilfully violated the condition by allowing a person who had no driving licence knowing that he had no driving licence. To reach the above conclusion the Tribunal has relied upon the decision of the apex court and also of this court. The Tribunal has observed that this fact was neither pleaded nor proved by the insurance company. On the basis of the above reasoning the Tribunal concluded that the driver would be primarily liable and the owner (R1) would be vicariously liable and in the process the appellant-insurance company as the insurer would have to be held liable to indemnify the insured owner (R1).

8. In the process of reasoning the Tribunal passed the award dated February 29, 1996 directing the appellant-insurance company to satisfy by answering issue No. 4 in the process.

9. As stated above, apart from the two decisions relied upon by the Tribunal, the learned counsel took efforts to place before us the other decisions in the context, of the apex court 5.

10. We have been taken through these decisions to find that the decision in Skandia Insurance Company has remained undisturbed. Particularly reference to Sohan Lal Passis case and United India Insurance Co. Lid. s case of 1997 would make the position crystal clear in the context. In the above context, this has been specified in Sohan Lai Passis case at page 1052 that the Bench of three judges of the apex Court therein came to be constituted to examine the correctness of the view in Skandia Insurance Co. s case. This was because of the stand of the Insurance Company therein that when S.96(2)(b)(ii) provided that the insurer shall be entitled to defend action on the ground that there has been breach of a specified condition to the policy ie., the vehicle should not be driven by a person who is not duly licensed, then the insurance company cannot be held to be liable to indemnify the owner of the vehicle. In the said Sohan Lais case the Bench of three judges of the apex Court also considered Kashiram Yadavs case *, and ultimately considering the reasons in Skandia Insurance Co.s case (supra), the apex court observed that the decision in Skandia Insurance Co. s case is held in respectful agreement with the views expressed therein. In fact it is observed that in Kashiram Yadavs case (supra) the views of Skandia Insurance Companys case are reiterated with no kind of dent in regard thereto.

11. Similarly in the latest decision in United India Insurance Co.s case (supra) the subsequent Bench of two judges has observed that the Bench of three judges in Sohan Lals case also took the same view. Particularly in paragraph 12 of the judgment dealing with the resume of the earlier decisions, it is particularly observed that the exclusion clause in the insurance policy would make it clear that the insurance company, in the event of an accident, would he liable only if the vehicle was being driven by a person holding a valid licence or a permanent driving licence "other than a learners licence". Thus, even in the latest view although on facts two distinct lines of cases were noticed in the context of factual peculiarities with regard to the observation in the Skandia Insurance Co. s case in none of the decisions we find any kind of deviation. This is also made clear in the observations in paragraph 13 of the judgment where it is observed that when the insured had handed over the vehicle for being driven by an unlicensed driver, the insurance company would get exonerated from its liability to meet the claims of third party who might have suffered on account of vehicular accident caused by such unlicensed driver. It is observed that in view of the aforesaid two sets of decisions of that court, which deal with different fact situations, it cannot be said that the decisions rendered by the apex court in Skandia Insurance Co. s case (supra) and subsequent decision of the Bench of three judges of the apex court in Sohan Lais case (supra) would be seen in any way in conflict with the decision rendered by the apex court in the other line of cases, ie. New India Assurance Company Ltd. s case (supra) and also Kashiram Yadavs case (supra).

12. It is also necessary to emphasise that the situation is further crystallised that the Bench of three judges in Sohanlals case has observed that it must be established by the Insurance Co. that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. When the insured has done everything within his power in as much as he has engaged a licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. We must state that in fact the above observations are in the nature of a quotation from the earlier judgment of the apex court in Kashiram Yadavs case in the context of a situation found by the apex court that in Kashiram Yadavs case also the views expressed in Skandia Insurance Co.s case have been reiterated.

13. Apart there from we would like to pinpoint the factual peculiarities in these decisions. In the United India Insurance Companys case, factually the situation was that the driver had no licence to drive the vehicle at the relevant time when the accident occurred. This position is also reinforced factually therein that the insured has permitted the vehicle to be driven by an unlicensed driver (R1 therein) and therefore, there was no dispute that he had committed a breach of the relevant term of the policy. If we consider the factual position in Sohanlal Vs case, the situation also is not different. In that case the bus was driven by Gurbachan Singh who was employed by the owner of the bus as a driver and who had licence to drive the bus in question and therefore, the insurance company was liable to pay the compensation. Factually, the apex court was dealing with the correctness of the earlier 1987 decision in Skandia Insurance Companys case which was also on the same factual basis. It is also seen from the judgment of the apex court in New India Insurance Co.s case that the situation was of a person holding a learners licence to enable the apex court to conclude that he would not be regarded as duly licensed. This was the factual basis for the reversal of the decision of the Bombay High Court therein. The apex court examined the use of the term "permanent driving licence" in the insurance policy emphasising that a temporary or a learners licence holder would not be covered by the Insurance company.

13 A. It is necessary to mention that in the case of Kashiram Yadavs case (supra), the factual position also presents its own peculiarity. The driver had asked the cleaner to take care of the truck and in fact the driver had left the truck in charge of the cleaner. The cleaner meddled with the vehicle and caused the accident. After carefully considering the decision cited at the Bar, we would proceed to consider the legal position hereafter.

14. It is more than elementary that the Tribunal gets concerned with the requirement of deciding the contention on the basis of pleadings in regard thereto. S.101 of the Evidence Act requires a fact to be pleaded and proved in the context of legal right. In the context of the factual requirement to consider the contention what is expected is to plead an escapement from liability on the basis of averment in pleading that there is a breach. The breach has to be pleaded in the context of violation of the terms of the insurance policy. The law gives immunity to the insurer from liability to indemnify if the breach of the terms of the policy is committed. A breach is the infringement or violation of a promise or obligation on the part of the insured. It follows therefore, from the rule of evidence that if the insurer desires the court to give judgment as his legal right to be exonerated from the liability to indemnify the insured, he must prove that those facts exist. This is in substance the legal requirement of S.101 of the Evidence Act. We have already particularised the pleadings of the appellant-insurance company in the context. The Tribunal has particularised the situation of pleading by observing that this fact was neither pleaded nor proved by the insurance company. The decision of this court has been relied upon in support. The said decision makes the position crystal clear with regard to the requirement of pleading to enable this court to observe that there is no required proof in the process. We will have to observe that the Tribunal would not be said to have been in error in regard to this aspect of pleading showing lack of necessary particulars in regard thereto.

15. The undisturbed decision of the apex court as observed above provides in the nature of a declaration of law the basis necessary for the approach of the court in accident cases in the context of the liability of the insurance company. It has been observed that the statutory provision defining the conditions of exemption which come up before the court for interpretation must be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat, the provision rather than to fulfil its life-aim.

16. In Skandia Insurance Co. s case (supra) this approach has been fortified by observing that to do otherwise would amount to nullifying the benevolent provision by reading it with a non-benevolent eye and with a mind not tuned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved.

17. Not content with this the apex court has also considered the strict doctrinaire approach and has observed that the very same conclusion would emerge in obeisance to the doctrine of "reading down" the exclusion clause in the light of the" main purpose of the provision so that the "exclusion clause does not cross swords with the main purpose highlighted earlier. The effort must be to harmonise the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The above salutary warning would have to be understood and borne in mind as a golden thread running through the web of arguments in the context of dealing with accident cases in general, applicable to provisions under consideration in the legal battle of debate by the concerned courts. In every situation, it would have to be understood to be the strength of the observation, it cannot be kept out of mind that the entire machinery constituted in regard to the proceedings of claim petitions before the Tribunal, that claimant could not be kept at a distance from the consideration in the context. Whether it is a question of the insurance company taking up a contention to avoid liability successfully, whether it is a contention taken up by the owner in regard to the liability in the absence of the insurance company being connected with it, whether it is a question of considering the right of the insurance company to recover it from the owner, the court will have to keep in mind this search light observation of the apex court not to ignore and forget that the entire system is a concern for a claimant who suffers injuries in the process of accident. This is the approach of the apex court and in our judgment this approach should be a running thread in the process of decision making.

18. Although not necessary really in regard to the question to be considered, it will have to be observed that the comparative study of the two enactments - Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 - would also show the same view in projection when several provisions exhibit a line of approach meaningfully bringing the system closer to the needs of the situation of award of compensation to the claimant. Suffice it to say that this aspect also would require consideration in the context of a proper occasion before this Court.

19. The accident occurred on October 30, 1992 and therefore, as a consequence the statutory provisions of the Motor Vehicles Act, 1988 would govern the situation. S.149 of the 1988 Act conveys regarding the duty of the insurers to satisfy judgments and awards against persons insured in respect of third party risk. S.149(2) relates to the liability of the insurer and speaks of a situation in regard to which no sum shall be payable by an insurer in respect of any judgment or award. In the context it is provided that an insurer to whom notice of bringing of any such proceeding is given, could defend the action stated in the said statutory provision. The contention in the context would be found in S.149(2)(a) in the event of a breach of a specified condition of the policy enabling the insurer to avoid liability in regard thereto. In the process in regard to the right of the insurer to recover the amount from the insured, it would have to be seen by referring to S. 149(4) as to under what circumstances this can be successfully recovered from the insured.

20. S.149(4) says that where a certificate of insurance is issued, so much of the said policy as purports to restrict the insurance of the persons insured thereby by referring to any of the conditions mentioned and it is precisely enacted in regard thereto that the liability covered by S.2(b) as are required to be covered by the policy would not be available. The position is made further clear by the proviso enacting that any sum paid by the insurer in or towards the discharge of any liability of any person who is covered by the policy by virtue of this sub-section shall be recoverable by the insurer from that person.

21. In other words, S.149(4) considers the right of the insurance company in regard to re-imbursement of the amount paid by them only in the context of a situation other than the one contemplated under S. 149(2)(b). It would mean that except under the situation provided by S.149(2)(b), the insurer would not. be in a position to avoid the liability because he has got rights against the owner under the above provision.

22. The learned counsel strenuously submitted that this would not be the correct understanding, and interpretation of the statutory provisions of S.149 of the 1988 Act. The learned counsel submitted that to read the statutory provision to understand that the insurance company could only claim from the owner situations governed by S.149(2)(b) and to have no right under the said provision with regard to other situations under S.149(2)(a) would not be the proper reading of the statutory provision. The learned counsel submitted that in fact the provision would have to be meaningfully understood. It is not possible to consider the submission of the learned counsel in the light of the plain language of the statutory provision. It is necessary to emphasise that under the new Act the burden of the insurance company has been made heavier in the context of controlling the need of taking up contentions to legally avoid the liabilities of the insurance company. It is in this process that the statutory provision makes it more than clear that except the situations covered by S.149(2)(b), the insurance company has to suffer which appears to be the plain meaning of the statutory provision. We have already observed that there are various situations in the context to be understood and appreciated in the light of the approach set down by the apex court as far back as in 1987.

23. Apart there from, we find that the approach is already taken by this court of a concurrent jurisdiction specifically laying down that the insurer can only claim reimbursement of the amount paid by them under the award to the claimants from the insured in accordance with the provisions of S.149(2)(b). It is specifically observed by this court that in cases coming under the latter category, the insurer cannot be made liable at all, even conditionally on allowing them to recover such amount from the insured. We find that there is no reason to consider the submission in the light of the above decision because we are in complete agreement in regard thereto for our additional reasons available from the approach of the apex court in Skandia Insurance Companys case. For all the above reasons the appeal stands dismissed and the award dated February 29,1996 of the M.A.C.T., Muvattupuzha stands confirmed in all respects. Ordered accordingly.

6.1996 (1) KLT 393 - Oriental Insurance Co. Ltd. v. Usha.