Insurer must establish breach to avoid from paying liability.

(Civil Miscellaneous Appeal filed against the judgment and decree dated 28.08.1997 made in M.A.C.T.O.P. No.271 of 1996 on the file of the Motor Accident Claims Tribunal (Sub-Judge), Kallakuruchi.)

National Insurance Company Limited, Villupuram, aggrieved by the judgment and decree dated 28.08.1997 made in MACTOP No.271 of 1996 on the file of the Motor Accident Claims Tribunal (Sub-Judge), Kallakuruchi, has filed the above Civil Miscellaneous Appeal.

2. In respect of grievous injuries sustained in a motor accident that took place on 19.04.1993, the claimant/first respondent herein prayed for a compensation of Rs. 2 lakhs for the injuries assessed as 100% disability. In support of his claim, he himself was examined as P.W.1, one Manian who was the eye-witness to the accident was examined as P.W.2, Dr. Angamuthu, Senior Civil Surgeon, Government Hospital, Cuddalore, was examined as P.W.3 and one Dhanalakshmi, the wife of the injured was examined as P.W.4. In addition, Exs.P.1 to P.12 were marked on the side of the injured claimant. Since the injured Govindasamy is bedridden, his wife has Dhanalakshmi has filed the Claim Petition on his behalf.

3. On the side of the Insurance Company, one Srinivasa Gopalan was examined as R.W.1 and one Damodaran, the Inspector of the Insurance Company was examined as R.W.2 besides marking Exs.R.1 to R.6 to their defence.

4. The Tribunal, after analyzing the materials, holding that the accident was caused due to the negligence of the driver of the lorry in question, passed an award for Rs.1,70,000/- with 12% interest per annum from the date of the petition till the date of deposit. Since the appellant Insurance Company obtained permission to contest the Claim Petition under Section 170 of the Motor Vehicles Act, I permit the learned counsel for the Insurance Company to advance arguments on the quantum determined by the Tribunal as well as the liability.

5. Heard Mr. S. Vadivelu, the learned counsel for the appellant Insurance Company and Mr. A. Thiagarajan, the learned counsel for the first respondent/claimant represented by his wife and guardian Dhanalakshmi.

6. Mr. S. Vadivel, the learned counsel for the appellant Insurance Company, after taking me through the award of the Tribunal and all other materials placed has submitted that the appellant Insurance Company who is the second respondent before the Tribunal had resisted the application for compensation and inter-alia contended that the driver had no valid licence to drive the lorry and that the claimant himself was negligent and the cause for the accident and denied the injuries sustained by the claimant and death caused to another bullock and further contended that on any event, the amount claimed as compensation is highly excessive.

7. He also contended that the Tribunal has mis-directed itself in law holding that in order to escape the liability, the Insurance Company was not only required to prove that the driver was not holding licence at the time of the accident but also should prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. He also contended that the Tribunal has failed to see that the appellant had also filed the report in Ex.R.2 regarding the investigation conducted and had also examined the investigator as R.W.2 to prove that the driver of the lorry did not hold any licence to drive the lorry and should have therefore accepted the defence raised by the appellant that the appellant was not to liable in law to indemnify the owner of the lorry inasmuch as the owner had wilfully disobeyed the terms ad conditions of the policy, thereby committing breach of the warranties specified under the policy. The learned counsel for the appellant Insurance Company has not seriously questioned the quantum but has mainly attacked the Tribunal’s finding in respect of the liability.

8. On the other hand, Mr. A. Thiagarajan, the learned counsel for respondent/claimant has contended in the