NARCINVA V. KAMAT AND ANR. ETC. versus ALFREDO ANTONIO DOE MARTINS AND ORS.

Citation: [1985] 3 S.C.R. 951 · Decided: 25-04-1985 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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951 
NARCINVA V. KAMAT AND ANR. ETC. 
v. 
ALFREDO ANTONIO DOE MARTINS AND ORS. 
April 25, 1985 
(D.A. DESAI AND RANGANATH MISRA, JJ.J 
Motor Vehicles Act: 
Accident claim-Mo._tor vehicle owned by partnersh•p firm-Driven by one 
of the partrrers-Accident occ~rs-Whether breach of _contract of insurance policy-
lnJurance company wherh"er absolved from liability-Burden ofpfoof whether lies 
on insurance conzpany. 
A 
B 
c 
In a road accident that took place tw·o ladies were injured. One succum-
D 
bfd to her injuries. The offending vehicle was a pick-up van belonging to a 
firm and was being drive·n by one of the partner~. Two claim petitions were 
filed one by the heirs of the deceased and the other by the injured. The !\1otor 
Accident Claims Tribunal held that the van was being driven at the relevant 
time rashly and negligently. "fhe Tribunal awarded Rs. 75,000 as compensation 
to the heirs of the deceased and Rs. 3,000 to injured. 
Before the Trib\lnal the Insurance company contended that according to 
the 'terms of the contract of insurance as evidenced by the policy of insurance, 
the vehicle can be driven either by a driver in tlie emplo:,.·ment of the insured or 
with the permission of the insured by one who holds a valid driving licence. 
The Tribunal found that at the time of the accident, the vehicle was being 
driven by appe11ant No. 2, the partner of the firm, which was the owner of the 
vehicle and as the driver did not produce his driving licence, held that the 
driver did not have a valid driving licence and, in the absence of a valid driv· 
ing licence. there was a breach of the contract of insurance and the insurance 
company was absolved from the liability under the policy of insurance. 
A Division Bench of the High Court confirmed the findings of the Tri-
bunal and dismissed the appeals by the firm and its partners. 
On the question whether the insurance company under the contract of 
insurance is liable to satisfy the award, partly allowing the appeals, 
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.F 
G 
, HELD : 1. The insurance company h<i.s failed to prove that there was a 
b~each of the term of the contract of insurance as evidenced by the policy of 
insurance on the ground th at the driver who was d1 ivifig the vehicle at the rele- · 
vant time did not h::ive a valid driving licence. Once the inSUrance company 
failed to prove that aspect, its liability under the cont1act of insurance remains 
H 
952 
SUPREME COURT REPORlS 
[1985] 3 s.c.R. 
A 
intact and unhampered and it was bound to satisfy the award under the com-
prehensive policy of insurance. [959B-D'l· 
· 
2. The award of the Tribunal as well as the judgment of the High Court 
are modified. The Insurance Company is to satisfy the award with interest at 
12 per cent from the date of the accident till payment. [9590-EJ 
B' 
3.- Where the pick-up van belonging to the firm is being driven by a part-
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D 
E 
F 
G 
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ner, it can be said that it is done with the permission of the owner of the firm 
or with its implied authority. [956E] 
While dealing with the question whether the partner had a valid driving 
licence at the relevant time, both the Tribunal and the High Court fell into an 
error which resulted in giving a clean chit to the insurance company. Admit-
tedly this pick up van could be used as a private carrier and the insurance 
--:ompany had issued a comprehensive insurance policy in respect of this va·n 
and at the relevant time it was in force. [9.46E-G] 
5. If a breach of a term of contract permits a party to the contract to .not 
to perfrom the contract. the burden is squarely on that party which complains 
of breach to Prove that the breach has been committed by the other party to 
the contract. The test in such a situation '\\'Ould be who would fail if no evi-
dence is led. [957B-CJ 
In the instant case, not an iota of evidence has been led by the insurance 
company to show that the second appellant did not have a valid driving licence 
to drive the vehicle. The High Court took no nvti~e of the fact that the van be-
longed to the firm and every partner for th1t reason would be the owner of the 
prope;ty of the firm. It limited its enq 1iry to a~certain whether the driver was 
in the employ of the iosurer. It completl!1y ov{'rlooked the fact that the driver 
appeltant No. 2 was driving with the permission of the insured, the firm in 
this case. [957CH; 951A-B] 
6. On a proper analysis and iuterpretation of the term of contract of 
insurance, the i

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