The insurer must prove that the insured is at fault and guilty of breaching the insurance policy in order to escape from the obligation to indemnify the insured.

Rajiv Sharma and Satish Chandra, JJ.

1. The present appeal is filed by appellant, namely, United India Insurance Co. Ltd., against the award/judgment passed by the Motor Accidents Claims Tribunal, Pratapgarh on 25.4.1992 in Claim Petition No. 7 of 1990 whereby a compensation of Rs. 98,000 was awarded in favour of the claimants-respondents. The brief facts of the case are that on 3.1.1990, at about 8 p.m., at village Rajanpur, P.S. Kunda, District Pratapgarh, the opposite party No. 7 Shakiluddin was driving the tractor No. UTO 8681 while Sohrab Khan was working as labourer on the said tractor for loading and unloading of manure and was injured due to rash and negligent driving of the said tractor. Subsequently, the victim died due to the injuries caused in the accident in question. It was claimed that deceased was earning Rs. 800 per month, so the claim petition was filed for Rs. 1,60,500. However, after examining the entire evidence, the Claims Tribunal has awarded compensation of Rs. 98,000 in favour of the claimant widow and minor children and against the appellant insurance company. Being aggrieved, the appellant insurance company has filed the present petition.

2. We have heard Mr. Vinod Kumar, the learned counsel for the appellant, and Mr. Ajmal Khan, learned counsel for the opposite party No. 1, and gone through the material available on record. The factum of the accident and death of the deceased are not in dispute.

3. The sole argument advanced by the learned counsel for the appellant insurance company is that the tractor was plying by violating the terms and conditions of the insurance policy, as it was being used for the commercial purpose. So the insurance company is not liable to pay any compensation. For this purpose, learned counsel for the appellant insurance company relied upon the ratio laid down in the cases of Kapoor Chand v. Nemi Chand, 2006 ACJ 958 (Allahabad); and Jayraj v. Kaluram, 2006 ACJ 636 (MP).

4. On the other hand, learned counsel for the claimants-respondents submits that the accident was caused by the tractor and tractor alone cannot be used for commercial purpose. There was no attachment with tractor in question at the time of accident.

5. From the perusal of the record, it appears that the tractor driver was holding a valid driving licence at the time of accident. The deceased was labourer who was travelling on the tractor in question and the same was comprehensively insured by the appellant insurance company. In the night, the tractor was not engaged for the commercial purpose as no trolley was attached to it as alleged by the learned counsel for the claimants-respondents. Regarding the breach of terms of insurance policy, the Hon'ble Apex Court in the case of Skandia insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), has observed as under:

...The expression 'breach' is of great significance. The dictionary meaning of 'breach' is 'infringement or violation of a promise or obligation'. [See Collins English Dictionary]. It is, therefore, abundantly clear that insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is not duly licensed will not be in-charge of the vehicle. The very concept of infringement or violation of the promise that the expression 'breach' carries within itself induces an inference that violation or infringement on the part of the promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect, how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the insurance company that the breach was on the part of the insured