NOORUL ARFIN, J.----This first appeal arises on an insurance policy covering a commercial vehicle, that is, Bus No. KAP-4762, for the period from 4th June 1958 to 3rd June 1959. This vehicle met an accident at the crossing of Frere Road and Hasan A.I Effendi Road between 7 and 8 a.m. On 19th January 1959, the accident being caused, according to the statement of the driver, P. W. Himmat Yar KJhan, when the bus ran over a traffic island when this witness turned the bus to avoid collision with an auto rickshaw which had suddenly appeared in front of the bus. In consequence, the front bumper, axle, spring, column axle, steering brakage and other parts suffered serious damage. The respon--dent insurance company was informed of this accident by the appellant's letter dated 20th January 1959. The bus was also inspected by the representative of the insurance company, to whom the appellant duly submitted his claim. However, no reply was received from the company, with the result that the appellant had the bus repaired himself at a cost of Rs. 4,500, to recover which sum, as well as another sum of Rs. 1,500 on account of loss of profit for the period from 20th January 1959, to 16th March 1959, the appellant filed a suit before the Additional District Judge, Karachi. The defence of the respondent insurance company was that the bus was not in a roadworthy condition as its hand brake, according to the report of Motor Vehicles Inspector (Exh.
10), was defective, and, further, that P. W. Himmat Yar Khan, was driving the bus negligently and recklessly.
2. As many as 10 issues were framed on the pleadings of the parties, but the trial Court disposed of the suit only on the basis of its findings on issues Nos. 1, 6, 8 and 10. Issue No. 1 raised the question whether the damage to the bus was caused due to the negligence of the driver, and was the bus roadworthy at the material time. Both parts of the issue were decided against the appellant. Issue No. 6 concerned the criminal prosecution of the driver of the bus. The trial Court, however, held that the acquittal of the driver by the criminal Court was not a bar so as to preclude the Civil Court from deciding the questions which were at issue before the Criminal Court. Under issues Nos. 8 and 10, the Court held that the appellant had no cause of action as he was in breach of condition No. 5 of the policy of insurance. On these findings, the suit was dismissed with costs against the appellant.
3. At the hearing before us, the only question which was argued by the learned Advocates for both the parties was whether the appellant was in breach of condition No. 5 of the policy of insurance (Exh. 5-M), so that the respondent-company was absolved of liability by reason of the provisions of condition No. 9. The condition No. 5 reads as follows :- "The insured shall take all reasonable steps to safeguard the Motor Vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the Motor Vehicle or any part thereof or any driver employee of the insured. In the event of any accident or breakdown the Motor Vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the Motor Vehicle be driven before the necessary repairs are effected any extension of the damage or further damage to the Motor, Vehicle shall be entirely at the insured's own risk."
The condition No. 9 runs as under "The due observance and fulfillment of the terms conditions and endorsements of this policy in so far as they relate to any thing to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy."
4. The case has therefore to be decided according to the construction we place on condition No. 5, particularly as to the meaning of the words "the insured shall take all reasonable steps to safeguard the Motor Vehicle from loss or damage and to maintain it in efficient condition . . . ." Now, as to the construc--petition of an insurance policy, like the one before us, the rule is that the policy, being prepared by the insurance company, should be construed against them, and if there are ambiguous expressions, the Court should lean in favour of the insured-See Macgilivray on Insurance Law (paragraphs 944 and 945, Vol. j, 5th Edition), Preston and Colinvaux on the Law of Insurance (second Edition, pp. 30, 31), Oriental Government Security Life Assurance Company Ltd. v.
Narasimha Chari (I L R 25 Mad. 183) and Co-operative Assurance Co. Ltd., Lahore v. Sachdev and another (AIR 1936 Lah. 685). Another rule is that, the burden of proving that a warranty (that is, a condition) hash been broken lies upon the insurers-See Stebbing v. Liverpool and London and Globe ((1917) 2 K B 433, 438) and Bond Air Services v. Hill ((1955) 2 Q B 417).
5. The contention raised before us is whether the finding of the Motor Vehicles' Inspector, that the hand brakes of the bus were ineffective, should lead to the conclusion that the insured was in breach of Condition No. 5 of the insurance policy. Mr. Riazul Hasan, the learned Advocate for the insurers, very fairly placed before us two decisions, one of which goes against the insurers, and the other in their favour. In Barrett v. London General Insurance Company, Ltd. ((1935) L R 1 K B 238) the condition of the policy of insurance was in these words This policy does not cover or insure against liability in respect of any accident while driving the car in an unsafe or unroadworthy condition."
The insurers claimed exemption from liability on the ground that at the time of the accident and at all material times the car was being driven in an unsafe and unroadworthy condition, in that the brakes were defective and dangerous. Goddard, J., (as he then was), compared this condition with the condition of seaworthiness in marine insurance policies, with regard to which the Courts have accepted the rule that while there is warranty that the ship is seaworthy at the time of sailing, there is no warranty that she shall continue seaworthy throughout the voyage. This rule was applied by the learned Judge to the condition of the motor insurance policy which came up for his interpretation, and he held that this condition meant that the vehicle must be roadworthy when it sets out on its journey, and not that it should be roadworthy throughout the journey, and that the onus was on the insurers to prove that the vehicle was not safe or roadworthy at the commencement of the journey, and since they had failed to discharge this onus, they were liable for the payment of clsim. This decision was considered by the Privy Council in an appeal-from the Court of Appeal of New Zealand, namely, Tricket v. Queensland Insurance Company Ltd. And others ((1936) L R A C 159) in which case the insurance policy provided that "No liability shall attach to the Company under this policy in respect of any loss, damage or liability occurring or any personal accident to the insured occurring :-(i) While any motor vehicle in connection with which indemnity is granted under this policy is :-(e) Being driven in a damaged or unsafe condition."
The motor vehicle in this case met with an accident while it was being driven without lights. The Judicial Committee held that the insured was in breach of this condition, as the vehicle, being without lights, was being driven in an unsafe condition. Referring to Goddard, is judgment in the decision just referred to above, the Judicial Committee, while agreeing with the conclusion reached in that case, expressed its dissent from the view that the position of a ship at sea should be assimilated with that of a motor-car.
6. The insurers before us placed reliance on the Privy Council's decision, but the insured contended that the correct view is the one taken by Goddard, J. In Barret v. London General Insurance Company Ltd. On my part, I am of the view that the decision of the Privy Council does require re- examination. But in the present case it is not necessary to decide as to which view is correct, for the words in which the condition exempting the insurers from liability was expressed in these two cases are diffe--rent from the language of Condition No. 5 before us. Both, in the case decided by Goddard, J., and that which came before the Judicial Committee, it may be said that the responsibility of the insured was expressed in absolute terms, in that the policies in both the cases provided that the insurers would be exempt from liability for loss arising out of an accident while the motor-car was being driven in an unsafe or unroadworthy candition. But Condition No. 5 in the present case required that the insured should take all reasonable steps to safeguard the motor vehicle from loss or damage and to maintain it in efficient condition.' The construction which 1 would place on this condition is that the insured was required only to see, so far as possible, or so far as sight and provision would allow him, that the motor vehicle remained in efficient condition.
The burden then was on the insurers to prove that the insured failed in this duty, that is, that he did not take reasonable steps to maintain the motor vehicle in c efficient condition. In other words, what the insurers had to prove was that the motor-vehicle was being driven in an inefficient condition, to the knowledge of the insured, when it met with accident. If this construction is accepted, as in my view it should be accepted, then in the present case the onus was on the insurers to prove, not merely that the hand-brakes were ineffective when the bus met with the accident,' but, further, that the bus was being driven with ineffective hand-brakes to the knowledge of the insured. Since this onus was not discharged by the insurers in the present case, it cannot be said that the insured was in breach of Condition No. 5.
7. Mr. Riazul Hasan, however, referred to two English decisions in which the exception in the insurance policy was expressed in the same words as Condition No. 5 of the policy before us. The first case is Jones and James v. Provincial Insurance Company Ltd. ((1929-30) 46 T L R 72). The other case is Brown v. Zurich General Accident and Liability Insurance Company Ltd. ((1954) 2 Lloyd's LLR 243).
But both these cases are distinguishable. In Jones and James v. Provincial Insurance Company Ltd., the insured had himself removed the foot-brakes from the vehicle before it met accident, and, therefore, the insured was driving the vehicle in an inefficient condition to his knowledge when the vehicle met the accident in Brawn v. Zurich General Accident and liability Insurance Company Ltd., the motor-car was damaged as a result of skid on icy surface. It was found that the front tyres were worn smooth and that this stage of tyres caused the skid. In this case also, the smooth state of tyres must have been known to the insured, who was, therefore, driving the vehicle in a condition which was not efficient to his own knowledge when the vehicle skid and suffered damage. Thus, in both these cases, the facts showed that the insured had pre-knowledge of the defects in the vehicles. The same view cannot be taken in the present case. The hand-brakes of the bus may have been in efficient condition when it set out on its journey, and may thereafter have failed due to the condition of the roads without the insured, or his driver, P. W. Himmat Khan, coming to know of this failure. The insurers .Did not show that the insured or his driver had pre-knowledge of the defective condition of the hand-brakes, and, therefore, they failed to L discharge the onus placed on them to prove that the insured did not take all reasonable steps to maintain the vehicle in efficient condition. Thus, in my view, it cannot be held that the insured was in breach of Condition No. 5 of the insurance policy.
8. The finding of the trial Court that the bus was being driven negligently by P. W. Himmat Khan is itself based on the trial Court's conclusion that the bus was being driven without effective brakes.
But there is no evidence that P. W. Himmat Khan drove the bus in this condition knowingly. In the absence of such knowledge, no negligence can be attributed to this witness. Moreover, in my opinion, the accident in the present case cannot be said to have been caused by ineffective hand- -brakes. These brakes are normally used for parking of vehicles or for driving on inclines. There is no incline at the place where the accident happened, and accordingly there could have been no occasion for P. W. Haimmat Khan to use hand-brakes. There is no other evidence on record showing negligence on the part of this witness. As such, the lower Court erred in holding that this witnesses was negligent or reckless in driving the bus.
9. For these reasons I would set aside the judgment of the trial Court. Since the case was decided in the Court below on preliminary issues, the matter will have to go back there for decision on the remaining issues, particularly the issues which relate to the assessment of damage and the quantum of compensa--petition to which the appellant may be found to be entitled. It is, therefore, ordered accordingly.
M. A. ZULLAH, J.-----I agree.