The court held that actionable evidence is necessary to establish a breach of insurance policy terms before imposing liability on the owner.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

Insurance Company is in appeal against the judgment and award of compensation in Claim Case No.10 of 2003 under Section 166 of the Motor Vehicle Act by which liability of compensation has been fixed on the Insurance Company.

2. The facts are not in dispute.

3. The main contention of the Insurance Company is that the driver was not having valid driving license at the time of accident and the offending vehicle which was a tractor with trailer loaded with sand, was plying as a commercial vehicle without any valid permit. In support of the contention, it is submitted that the Insurance Company examined his Surveyor- Kishore Kumar Jha as opposite party witness no.1, who has proved the surveyor report as Exhibit A and Exhibit B which was issued by the D.T.O., Giridih.

4. As per the report of the D.T.O., Giridih, the driving license which was issued, was fake, but it was renewed w.e.f. 29.03.2001 to 28.03.2004 by D.T.O., Deoghar.

5. It is further argued that the owner appeared in this case, but permit of the vehicle was not produced. Insurance Company contested the claim inter alia case on the ground of breach of condition of the insurance policy as no permit was issued. Since the documents regarding permit has not been adduced therefore, it can be inferred that it was being plied without valid permit, which amounted to the breach of terms under Section 149 of the Motor Vehicle Act. It has also been pleaded by the owner of the vehicle that the driver was engaged to drive the offending vehicle without verification of the license. In this view of the matter, it was incumbent on the part of the learned Tribunal to have given right of recovery to the Insurance Company.

6. It is argued by the learned counsel, Mr. Mohan Kumar Dubey on behalf of respondent no.6(a)-owner of vehicle that the original owner of the vehicle died during course of trial and his son has been substituted at the time of appeal as respondent no.6(a). The privity to contract will apply as substituted son was not a party and therefore, he will not be bound by the terms and conditions of the insurance policy. The vehicle was validly insured and as per the Exhibit B, the driver was having a valid driving license at the time of accident.

7. The argument that the original driving license was fake, is not tenable otherwise it could not have been renewed by the D.T.O., Deoghar. It is argued by the learned counsel that the accident took place immediately after the vehicle was taken from the show room and formal registration number was also not issued by the registering authority.

8. The accident admittedly took place on 04.01.2003, whereas registration fee was deposited on 06.01.2003 and was registered and registration number was issued on 04.02.2003, therefore, in this short span of time, they had no opportunity to take permit of the vehicle. Before drawing a finding of fundamental breach of the terms and condition of the policy of insurance in terms of Section 149 of the M.V. Act, there should be some actionable evidence to suggest that there were laches on the part of the owner before saddling him with liability to pay the compensation amount. Even otherwise, the permit could not have been obtained in the short span of time. In the present case, since the accident took place immediately after the vehicle was taken from the show room, therefore the breach of policy of insurance cannot be held for using the motor vehicle without a valid permit.

Under the circumstance, the Miscellaneous Appeal stands dismissed.

Statutory amount be remitted to the Tribunal for disbursement to the claimants for adjustment to the final compensation amount.Interlocutory Application, if any, is disposed of.