The main legal point established in the judgment is that the insurer's liability towards the insured can only be avoided if the insured was guilty of negligence and failed to fulfill the policy conditions regarding the use of vehicles by duly licensed drivers. The court also emphasized the rule of main purpose and the concept of fundamental breach in interpreting policy conditions to allow defenses available to the insurer under section 149(2) of the Act.

H.G. Ramesh, J.

This appeal by the claimants is against the judgment and award passed by the learned Third Additional Senior Civil Judge & M.A.C.T., Bangalore, in M.V.C. No. 4344 of 2009, dated 15.6.2010 seeking enhancement of compensation and challenging the finding of the Tribunal fastening liability to pay compensation on the owner while absolving the liability on the insurance company. Claimants are the parents of deceased Vinodkumar who died in the accident that occurred on 23.9.2008. It is the case of the claimants that on 23.9.2008 at about 9.45 p.m. when Vinodkumar was crossing Tumkur Road, a lorry bearing registration No. KA 21-A 4297 came in a rash and negligent manner and dashed against him due to which he sustained grievous injuries all over the body. He was taken to Premier Sanjeevini Hospital, Bangalore and during the course of treatment, he died on account of injuries. As such, claimants filed claim petition before the Tribunal seeking compensation.

2. On the matter being contested by the respondent insurer, the Tribunal raising relevant issues for consideration, after inquiry, holding that the accident was due to negligence of the driver of the lorry in question, awarded total compensation of Rs. 1,80,000 with interest at 6 per cent per annum from the date of petition till the date of deposit. So far as fastening of liability is concerned, The Tribunal held that driver of the vehicle in question did not possess valid and effective driving licence to drive the vehicle as on the date of accident and there was no endorsement authorising the driver to drive vehicle carrying hazardous goods as the vehicle involved in the accident was a vehicle carrying hazardous goods and accordingly fastened the liability to pay compensation on the owner-insured of the vehicle. Challenging the same, the claimants are before this court.

Heard the learned counsel representing the parties.

3. Learned counsel for the respondent insurance company has relied upon the decision of Madras High Court in the case of Nagamani and Venkatesan Vs. Singaravelu and National Insurance Company Limited, to contend that, in the absence of such an endorsement, as the driver had no valid driving licence to drive vehicle carrying hazardous goods involved in the accident in question and as there is violation of policy conditions, the liability is on the owner of the vehicle and the Tribunal is right in exonerating the insurance company from payment of compensation.

On the other hand, the learned counsel appearing for the claimants submitted that in the case of National Insurance Co. Ltd. Vs. K. Ramasamy, Dhanalakshmi, K. Narayanasamy and K. Kaliyamourthy, (2008) ACJ 516 it is held that the main purpose of the qualification and training prescribed in rule 9 of the Rules seems to equip the driver of the tanker lorries transporting hazardous substances to meet certain emergencies and to make him aware of certain basic emergency procedures, in case of any spillage of hazardous substances transported in the vehicle is caused due to an accident. Further it is held in the said case that the evidence discloses that the tanker lorry was driven rashly and negligently by its driver and hit the deceased who was attending to the tyre of the lorry in which he was working as a cleaner near the lorry which was parked on the side of the road. The failure on the part of the driver of the tanker lorry to undergo the training prescribed under rule 9 of the Rules does not seem to have in any way contributed to the cause of the accident. In that circumstance, it is held that the insurer is not entitled to avoid its liability to indemnify the insured.

4. In the present case, what is being seen from driving licence, Exh. R3, is that the driver was authorised to drive heavy goods vehicle with goods of hazardous nature from 1998-99 and the same was renewed from time to time up to 2006 and thereafter up to 29.12.2009. Of course, there was suspension of licence for 90 days from 3