Orissa High Court
National Insurance Co. Ltd. vs Tara Bewa And Anr. on 17 February, 1997
Equivalent citations: I(1998)ACC161, 1998ACJ572
Author: Deepak Misra
Bench: Dipak Misra
JUDGMENT Deepak Misra, J.
1. The insurer is the appellant against an award passed by the Commis- sioner for Workmen's Compensation- cum-Deputy Labour Commissioner at Cuttack, in W.C. Case No. 16-D of 1987.
2. Respondent No. 1 filed an application under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') claiming compensation amounting to Rs. 65,000/- for the death of her son Brajendra Kumar alias Chagala Jena. Her case before the Commissioner is that on 27.11.1985 at about 5 a.m. her son Bra- jendra was going in a Trekker bearing registration number WNF 1148 as helper, to Puri with some passengers and the said Trekker met with an accident as it dashed against a truck near Gopalpur Check-Gate. Due to the accident Brajendra received injuries on his body and he was removed to the hospital at Cuttack, where he succumbed to the injuries. It was also stated in the application that she was dependent on her son, the deceased, who was aged 20 years at the time of the accident and was receiving monthly wage of Rs. 700/- from opposite party No. 1 (respondent No. 2 herein), the owner of the Trekker. The present appellant, the insurance company was arrayed as opposite party No. 2.
3. The owner filed his written statement admitting the accident, but disputed about the employment of the deceased and payment of wages to him.
The insurance company filed a written statement disputing the allegations in the claim petition in a general manner.
4. The claimant to substantiate her case examined herself and two other witnesses, whereas the owner examined himself as OPW 1. The Commissioner framed four issues and on consideration of the oral and documentary evidence on record came to hold that the deceased was a workman under the owner, opposite party No. 1; the death had occurred in the course of his employment on account of the accident; the claimant was entitled to get compensation of Rs. 63,061.60 and the insurance company, the present appellant, was liable to pay the awarded amount.
5. Mr. S.D. Das, the learned Counsel appearing for the appellant, has assailed the award on the ground that the claimant is not entitled to get compensation, inasmuch as deceased was a helper in a private car and the policy of insurance did not cover him. It is also contended by him that as the vehicle was carrying passengers in violation of the policy condition there has been a breach of the condition of the policy and, therefore, the insurer is not to be saddled with the liability.
The learned Counsel for the claimant-respondent No. 1 refuting the aforesaid submissions, has contended that in the written statement filed by the insurance company there is no denial of the liability on the ground that the deceased was a helper and the policy did not cover him. It has also been put forth by the learned Counsel that every breach of condition does not absolve the insurer from its liability and in the instant case, even for the sake of argument if it is conceded that some passengers were being carried in the Trekker, that would always not amount to such a breach of condition which would entitle the insurance company to claim absolution.
6. On a perusal of the impugned award, I find that the Commissioner on detailed discussion of the evidence adduced by the claimant has accepted her version that the deceased was a workman under the owner, opposite party No. 1. Though the owner had taken the plea to the contrary, in his cross-examination has clearly admitted that the deceased was under his employment as a helper. The said aspect has not been seriously disputed before me. The finding that the accident took place in the course of employment cannot be found fault with, inasmuch as the deceased was assisting/helping the driver while the vehicle was in the run. The amount determined/quantified on the basis of monthly salary of Rs. 700/- and on consideration of the School Transfer Certificate of the deceased which indicated the age to be 19 years, cannot be regarded as fallacious as the finding on that score is, in fact, unexceptionable.
7. So far as liability of the insurance company is concerned, the Commissioner has noted that the insurance policy covers the date of accident, i.e., 27.11.1985. The insurance was valid up to 20.5.1986. The owner has deposed before the Commissioner that the vehicle was validly insured with the appellant company and the risks in question are covered according to the conditions of the policy. On a perusal of the evidence of OPW 1, I find that the insurance company has cross-examined him only in relation to employment and salary component of the deceased. There is no cross-examination with regard to the risks covered under the policy, breach of condition of policy or anything ancillary thereto. The certificate granted by the insurance company has been brought on record. Nothing has been produced by the insurance company to indicate that a helper was not covered. On a perusal of the certificate of insurance, I find that the insurer has taken the risks in respect of the vehicle. If the insurance company was desirous of contesting the specific risk part covered under the policy, it should have produced the policy and other relevant documents to indicate that the terms of the policy did not cover the risk in question. There is no bar that a helper cannot be covered under the policy. In fact, it would depend upon the conditions of the policy and the premium/consideration paid for the policy. This court in the case of New India Assurance Co. Ltd. v. Haradhan Panda 1991 ACJ 863 (Orissa), has laid down as follows:
Liability of the insurer depends upon terms of the policy. It is not possible for the claimant to prove the terms. Insurer could have explained the terms when certificate granted by it was produced by the owner. When the insurer never sought to produce the policy and even while preferring this appeal did not prefer to produce the policy as an additional evidence, I am inclined to draw adverse inference that in case policy would have been produced, it would have indicated the liability of the insurer.
Again in the decision of Jibanananda Mohanty v. Artatrana Misra 1992 ACJ 851 (Orissa), this Court has held as under:
In respect of passengers in a private car, the terms of the policy shall determine the question of liability of the insurer.
Testing the present factual matrix on the touch-stone of the aforesaid enunciation of law, I have no hesitation to hold that the Commissioner has justifiably held that the insurer was required to indemnify the risk in question.
8. The learned Counsel for the appellant submitted that there is averment in the claim petition that the Trekker was carrying passengers and under the policy it was not permitted to do so. As already indicated, the insurer has not brought on record the policy to this case to show the exact condition. Quite apart from that every breach of condition does not amount to a fundamental breach. I may refer to the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd. 1996 ACJ 1178 (SC), wherein the Apex Court has held as under:
...Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident.
The presence of passengers being not contributory for causation of the accident so as to establish that either the driver or the helper was so negligent that any injury sustained by them was not to be compensated with. Keeping this in view, and in absence of any specific material on record as to the breach and whether such a breach is so fundamental that it affected the contractual relationship so as to absolve the insurance company from the liability cannot be concluded. In this context, I may refer to the decision in the case of Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), wherein the Apex Court observed thus:
...The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract to not perform 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 would be who would fail if no evidence is led....
9. In view of preceding analysis, I find no substance in the contentions raised by the learned Counsel for the appellant. The appeal, being devoid of merit, is dismissed. However, there will be no order as to costs.