ORIENTAL INSURANCE CO. LTD Vs. SARWANI DEVI

JUDGEMENT

(1.) THESE two appeals have been preferred against the judgment/award dated 31.5.1996 of the Motor Accident Claims Tribunal, Jhunjhunu. The facts in brief are that Maruti Car No. DL/2CB-1763, driven by respondent No.2 Dharam Pal overturned at around 12:30 PM on 6.6.1991 on Pilani-Luharoo Road. Jai Prakash and Naresh Kumar who were travelling in the car died in the accident. Legal representatives of the deceased filed two separate claim petitions, which were disposed of by the learned Tribunal by the aforementioned judgment. In claim petition No. 180/91 an award of Rs. 1,29,600/- was passed whereas in claim petition No. 186/91, an award of Rs. 1,08,000/- was passed in favour of the claimants. The Oriental Insurance Company Ltd. has filed two appeals against the above judgment of the learned Tribunal.

(2.) LEARNED counsel for the appellant Shri Virendra Agarwal has assailed the finding of the learned Tribunal only on issues Nos. 4 and 5 and had contended that by evidence on record, it is proved that the driver of the Maruti car was intoxicated at the time of the occurrence, which is a breach of the policy and, therefore, the appellant is not liable. His second contention is that the Maruti car was a private vehicle and it was being used as a taxi for hire or reward and this also is a breach of policy condition and, therefore, the appellant is not liable. Learned counsel for the appellant placed reliance on 1998 ACJ 67, 1378.

(3.) THERE is no evidence on record to show that the insured had any knowledge of the drunken state of the driver. There is, therefore, no willful infringement of any condition of the policy, it is only when the insured himself places the vehicle in charge of a person who is drunk, he can be said to be guilty of breach of condition of the policy, but when insured is not at fault, then the insurer cannot escape from obligation to indemnify the insured. As regards the second argument of the learned advocate of the appellant though there is no specific issue to the effect that the car was used for hire or reward and a part of issue No. 4 is that respondent No. 1 did not possess any permit to run the car on hire. The question now is whether it is established by evidence on record that the car was being used for hire or reward. Shakuntala, PW-1, Suraj Kaur, PW-2 and Pawan Kumar, PW-4 say that the fare paid was Rs. 1,150/- whereas Jagveer, PW-3 says that the fare paid was Rs. 1,100/-. Suraj Kaur, PW-2 says that the fare of Rs. 1,150/-. It is very interesting that the fact of paying fare has not been suggested to the driver Dharampal DW-2 at the time of his cross-examination. It is an admitted fact that Krishna Kumar DW-1 was also travelling by the same car, but he says that nothing transpired regarding the fare. Dharampal DW-2 and Om Prakash DW-3 deny in their statements to have received any fare. No receipt of fare has been produced. Thus by the evidence available on record I do not think that the fact of payment of fare has been proved. The insurer cannot, therefore, be exonerated from its liability.