- (1.) While in some States1 a widow of victim of a motor vehicle accident can recover the amount of compensation awarded to her from the Insurance Company. in a precisely similar fact-situation she would be-unable to do so, in other States2, conflicting views having been taken by the respective High Courts. The unaesthetic wrinkles from the face of law require to be removed by settling the law so that the same law does not operate on citizens differently depending on the situs of the accident. The question is whether the insurer is entitled to claim immunity from a decree obtained by the dependents of the victim of a fatal accident on the ground that the insurance policy provided '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," and that such exclusion was permissible in the context of Section 96(2)(b)(ii)1 for claiming immunity against the obligation to satisfy the judgments against the insured in respect of third party risks. 1 Andhra Pradesh, Gujarat. 2 Assam, Madhya Pradesh, Orissa. 1 "96. Duty of insurers to satisfy judgments against persons insured in respect of third party risks - (I) 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, judgments in respect of any such liability 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) x x x (b) that there has been a breach of a specified condition of the policy, being one of the following conditions namely :- (i) x x x x (a) to (d)x x x x x x (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 ; or xx x x x x x 2. The facts are not in dispute. The Claims Tribunal as also the High Court have concurred with the findings which are recorded in the following passage : "The accident in question took place on November 14, 1964. The truck had come from Barejadi and had been unloaded at Baroda. The driver had gone for bringing snacks from the opposite shop leaving the engine running. The ignition key was in the ignition lock and not in the cabin in the truck as alleged by the driver. The driver had handed over control of the truck to the cleaner. On these facts the driver having been grossly negligent in leaving such a truck with its running engine in the control of the cleaner. This being the immediate cause of the accident, the owner of the car viz. the insured was held vicariously liable along with the driver and the cleaner."
(3.) The view taken by the High Court has been summed up as under:- "In the present case there is not an allegation even that the insurer had at any time committed a breach of this condition. The insured has never permitted the cleaner to drive on the fatal occasion. The insured has permitted only the driver who is admittedly the licenced driver. It is the driver's negligence in leaving the vehicle with its engine running with the ignition key in the ignition lock that resulted in this accident. But for this gross negligence of the driver, the cleaner would not have been able to interfere with this vehicle. Once a finding is that the driver in the course of the employment or the master's agent in the course of that agency, he negligently left the vehicle with the cleaner, the vicarious liability would immediately be fastened to the owner of the truck Even if vicarious liability arises because of this principle of social justice and not because the owner committed any breach of the policy condition. The owner in the present case never gave permission to this cleaner to drive and, therefore, the owner even though he had become liable by reason of his vicarious liability he could not be held guilty of the breach of the contractual condition embodied in the policy of insurance. Therefore, the insurer cannot plead any exemption on the ground that the owner had committed breach of the specified condition ......";