Madras High Court
The Bajaj Allianz General Insurance ... vs K.Shanker : 1St on 23 February, 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.02.2018
CORAM
THE HONOURABLE MR.JUSTICE A.M.BASHEER AHAMED
C.M.A(MD)No.1483 of 2012
The Bajaj Allianz General Insurance Co.Ltd.,
No.II, (Office No.6-A) People's Park,
3rd Floor, Government Arts Colleges Road,
Coimbatore. : Appellant / 2nd Respondent
Vs.
1. K.Shanker : 1st Respondent /
1st Respondent
2. K.Chandrasekaran : 2nd Respondent / Petitioner
PRAYER: Civil Miscellaneous Appeal is filed under Section 30 of Workmen
Compensation Act, against the Order, dated 30.07.2012 passed by the Deputy
Commissioner of Workmen Compensation, Dindigul in W.C.No.49 of 2006.
!For Appellant : Mr.G.Maruthiah
^For Respondent-2 : Mr.A.Theethar
:JUDGMENT
This Civil Miscellaneous Appeal has been preferred against the Order, dated 30.07.2012 passed by the Deputy Commissioner of Workmen Compensation, Dindigul in W.C.No.49 of 2006.
2. The first respondent herein is the owner of the vehicle viz., Minidor, bearing Registration No.TN-40-E-9015, which met with road accident on 03.01.2006, at about 12.00 Hrs (Night). The 2nd respondent herein is the claimant in W.C.No.49 of 2006, on the file of the Deputy Commissioner of Workmen Compensation, Dindigul / Workmen Compensation Tribunal, claiming a sum of Rs.5,00,000/-, as compensation, for the injuries caused in the above said accident, against the first respondent and the appellant herein, who are the vehicle owner and insurer of the above said vehicle respectively.
3. The 2nd respondent / claimant would contend that he was employed as a loadman, under the employment of the first respondent, and the injuries were caused in the above accident, which has arisen out of and in the course of his employment and hence, the employer-cum-owner of the vehicle / R1 and the appellant / Insurer are jointly and severally liable to pay the compensation. The first respondent in the Civil Miscellaneous Appeal and also in the claim petition before the Tribunal was set ex-parte.
4. The Appellant / Insurer alone contested the claim petition by filing counter and additional counter statement before the Tribunal. The Insurer would contend before the Tribunal that there there is no employer and employee relationship between the first respondent and the claimant, on the date of occurrence, and the claimant was not injured in the course of his employment, as a loadman, under the first respondent and the driver of the Minodor goods vehicle was not having an effective and valid Driving Licence, on the date of accident.
5. After perusing and considering the evidence on records and hearing the arguments of both sides, the Workmen Compensation Tribunal has held that the claimant was employed, as a loadman, under the first respondent, and he was injured in the accident, which has arisen in the course of employment under the first respondent and the driver of the Minidoor Goods Vehicle of the first respondent was having effective and valid driving licence, on the date of accident and the policy in respect of the said vehicle was in force, at the time occurrence and hence, the appellant is liable to pay and deposit the compensation of Rs.2,84,517/- within 30 days, after receipt of copy of that order, failing which, the insurer has to deposit the above compensation amount along with 12 % interest per annum.
6. Aggrieved by the order of the Deputy Commissioner of Workmen Compensation, Dindigul / Authority, awarding compensation by the insurer, the present Civil Miscellaneous Appeal has been preferred by the appellant Insurance Company.
7. The learned counsel appearing for the appellant would contend that the vehicle involved in the accident is a Light Motor Transport Vehicle, which requires transport endorsement Badge in addition to the Light Motor Vehicle Licence, by reling the decisions of this Court in Branch Manager, National Insurance Co., Ltd., Vs. Lakshmanan and Another reported in (2002 ACJ 1304); the Administrator, New India Assurance Co.Ltd., Vs. Abdul Karim reported in [2011 (1) TNMAC 17].
8. The learned counsel also relied on the Judgment of the Hon'ble Apex Court in Oriental Insurance Co., Ltd., Vs. Angad Kol and Others reported in [2009 ACJ 1411] ; Oriental Insurance Co.Ltd., Vs. Sivammal & Others reported in [2009 ACJ 1081] ; Selvi Vs. Alagarsamy & Others reported in [2011(2) TN MAC 328] and also the Judgment of Himachal Pradesh High Court in Prem Singh Vs. Baldasi & Others reported in [2010 (2) TN MAC 636].
9. Continuing further, he would contend that no documentary evidence is produced by the claimant, to prove the employer and employee relationship between the claimant and the first respondent and hence, the Award of the Deputy Commissioner of Labour, Dindigul, dated 30.07.2012, passed in W.C.No.49 of 2006, is liable to be set aside.
10. Perused the materials on record. Heard and considered the rival submissions made by both sides.
11. The first respondent and the driver of Minodor Goods Vehicle are the competent persons to speak about the employer and employee relationship between the first respondent and the claimant and also the accident took place in the course of employment, as a loadman, on the date of occurrence. The first respondent did not come forward to deny the employer and employee relationship between the claimant and the first respondent and also the accident, which had arisen out of in the course of his employment and the first respondent was set ex-parte in the claim proceedings and the insurer also did not take any steps to examine the driver, who has driven the vehicle at the time of accident. There is no collusion between the first respondent and the claimant pleaded in the counter and also there is no evidence on the above aspect by the insurer.
12. The claimant was examined as P.W.1 and he has also categorically stated that he was employed, as a loadman, under the first respondent and the said Minidor vehicle was driven by one Balamurugan and the accident occurred in the course of employment under the first respondent and got injuries in the accident. The First Information Report was registered on the basis of the statement recorded from the claimant, by the place, while he was admitted in the Government Hospital, Madurai, for treatment, on 04.01.2006. No contra evidence was produced by the insurer.
13. Considering the evidence of the claimant and the FIR / Ex.A1, the concerned Authority has concluded that the claimant was injured due to the accident, as a loadman, in the said Minodor vehicle, in the course of employment, under the first respondent. Ex.A2 / Registration Certificate reveals that LMV Goods Vehicle / Minidor, bearing Registration No.TN-40-E- 9015 stands in the name of the first respondent, as registered owner and unladen weight of the vehicle is mentioned as 700 Kgs.
14. According to the learned counsel for the respondent, the LMV vehicle does not require such an endorsement to drive transport vehicle, which does not exceed 7500 Kgs unladen weight and relied a recent Larger Bench Judgment of the Hon'ble Supreme Court in Mukund Dewangan Vs. Oriental Insurance Co.Ltd., reported in (2017 (2) TN MAC 145).
15. In the case on hand, the insurer has admitted that one Balamurugan, who driven the Minidor vehicle was having LMV Driving Licence, without endorsement of badge, at the time of occurrence and hence, there is no violation of policy.
16. In the above stated circumstances and also the principles laid down by the Hon'ble Apex Court in the recent Larger Bench Judgment reported in (2017 (2) TN MAC 145) (cited supra), this Court is not inclined to interfere with the findings fond in the order, dated 30.07.2012, passed by the Deputy Commissioner of Workmen Compensation, Dindigul / Authority in W.C.No.49 of 2006.
17. In the result, the Civil Miscellaneous Appeal is dismissed, by confirming the order, dated 30.07.2012, passed by the Deputy Commissioner of Workmen Compensation, Dindigul in W.C.No.49 of 2006. The Appellant Insurance Company is directed to deposit the Award amount, as directed by the Workmen Compensation Tribunal / Authority, in W.C.No.49 of 2006, if not already deposited. On such deposit, the 2nd respondent / claimant is permitted to withdraw the entire Award amount with proportionate interest and costs, on application. The interim stay already granted by this Court in M.P.(MD)No.1 of 2012 stands vacated. No costs.
To
1.The Deputy Commissioner of Workmen Compensation, Dindigul
2.The Record Keeper, Vernacular Section Madurai Bench of Madras High Court.
Madurai..