Orissa High Court
Divisional Manager, Boudh Commercial ... vs Janakalata Barik And Ors. on 26 March, 2001
Equivalent citations: II(2001)ACC555, 2002ACJ1187, 2001(I)OLR533
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. This appeal Under Section 30 of the Workmen's Compensation Act (in short, the "Act") has been filed by the employer . against the decision of the Commissioner For Workmen's Compensation, Cuttack (in short, the "Commissioner"), directing payment of Rs. 1,85,170/ - with interest at the rate of 12 per cent per annum with effect from 18.6.1996.
2. The claimant-respondents 1 to 4 are the dependent legal representatives of deceased Raj Kishore Barik who was admittedly working as a driver under the present appellant. While the deceased was driving a Jeep belonging to the appellant from Boudh to Bhubaneswar. there was an accident near Khandapara which ultimately resulted in the death of the deceased.
3. The appellant in its original written statement while admitting about the death on account of accident in course of employment of the deceased had subsequently taken a plea by way of amendment of the written statement that the deceased met with the accident while he was proceeding to the village of his father-in-law and as such, the accident was not in course of employment, nor did it arise out of the employment.
The Insurance Company took the plea that at the time of accident, the deceased did not have a valid driving licence and as such, the Insurance Company was not liable.
4. The Commissioner found that the deceased was a workman under the appellant and the accident had arisen out of and in course of employment and as such the employer was liable to pay the compensation. The Commissioner further found that at the time of accident, the licence of the deceased had expired and since there was no valid driving licence, the Insurance Company was not liable. The aforesaid decision is under challenge.
5. The learned counsel appearing for the appellant first contended that while proceeding from Boudh to Bhubaneswar, the deceased need not have proceeded towards Khalisahi, which is near Khandapara and could have proceeded straight to Bhubaneswar from Boudh, via Nayagarh without taking a detour towards Khandapara. He has further submitted that it cannot be said that the driver was discharging his duty at that time. Such a contention, which had been raised before the Commissioner by way of amendment, was not accepted by the Commissioner on the ground that no material had been produced to show that the place where the accident occurred was not the normal route between Boudh and Bhubaneswar. The Commissioner also highlighted the fact that in the original written statement, it had been claimed by the present appellant that the accident had arisen out of and in course of employment and as such, the compensation should be paid by the Insurance Company. The aforesaid finding is essentially a finding of fact and it cannot be said that any substantial question of law is involved. As rightly observed by the Commissioner, in the absence of any categorical material, it cannot be said that the normal route had not been followed. Moreover, even assuming that the driver had taken a detour for a few kilometres, in the. particular facts and circumstances of the case, it would be difficult to hold that the driver had violated any specific instruction keeping in view the length of the entire journey which was to be undertaken, admittedly in course of his duty, It is not abnormal while going on a long journey to have a detour of a few kilometres here and there for the purpose of some persona! necessity. The conclusion would have been possibly otherwise, if there would have been any specific instruction that the driver was to take a particular route and was to reach Bhubaneswar by a particular time. It has been contended that judicial notice can be taken of the fact . that Khalisahi, which is near Khandapara, does not come in the normal route of Khandapara to Bhubaneswar, via Nayagarh. Assuming so. as already observed, taking of such a small detour while covering such a long distance, even for the personal purpose of the driver, can be taken to be notional extension of duty. The first contention, therefore, cannot be accepted.
6. The learned counsel appearing for the appellant then contended that even though at the time of the accident the licence of the driver had lapsed, the amount should have been directed to be paid by the Insurance Company. The aforesaid contention of the appellant is also supported by the counsel appearing for the claimant-respondents. Admittedly, at the time when the accident occurred, the licence of the deceased had expired. The Commissioner has observed that since there was no effective driving licence at the time of accident, there was a violation of the conditions of the insurance policy. A copy of the Certificate of Insurance had been produced before the Commissioner. A perusal of the aforesaid Certificate of Insurance indicates under the heading "Persons or classes of persons entitled to drive" :
"(a) The Insured.
(b) Any other person who is driving on the licensee's order or with his permission, provided that the person driving holds or had held and has not been disqualified from holding an effective driving licence with all the required endorsements thereon as per the Motor Vehicles Act, 1988...."
7. The defence of the Insurance Company is obviously based upon the provisions contained in Section 149(2)(a)(ii). The relevant provisions are extracted hereunder :
"149. (2) No sum shall be payable by an insurer under Sub-section ( I) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court of, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award, so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions namely :
(i) a condition excluding the use of the vehicle -
(a) to (d)....... ....... ....
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or....."
8. The ground of defence is available if there is breach of a specified condition of the policy. The Insurance Company is authorised, to issue any policy incorporating conditions excluding driving by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining the driving licence during the period of disqualification. If such conditions are not included in the policy, there cannot be any breach of the policy. In other words, the question of exclusion of the liability of the Insurance Company would depend upon the terms and conditions of the policy. It is always open to the Insurer to incorporate conditions envisaged in the Act. The exoneration from liability would be on the ground that there is violation of a specified condition of the policy. It is, of course, true that such incorporated condition must be a condition enumerated in Section 149 and not beyond such enumerated conditions. The provisions contained in Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988, only enable the Insurance Company to take up such defences, provided that such conditions have been incorporated. From the conditions of the policy, already extracted, it is clear that any person who had held a driving licence, but is not disqualified from holding a driving licence is also permitted to drive the vehicle. In the present case, apparently, the driver had a valid driving licence, but the tenure of the licence had expired. There is no material to indicate that the time of the accident, the driver had incurred any of the disqualifications, as contemplated under the Act or the Rules. It cannot be said that he was disqualified to hold or obtain a licence. By specifically incorporating such a clause in the policy, it is apparent that the Insurer has permitted for driving of the vehicle by a person who had held a driving licence prior to the date of accident, but was not disqualified to hold a licence at the relevant time, that is to say, at the time of accident. Therefore, even though on the date of accident, there was no valid driving licence, since the driver had held a driving licence and was not disqualified to hold a driving licence, it cannot be said that there has been any violation of any specified conditions of the policy. Section 149 of the Motor Vehicles Act only contemplates restrictions which can be imposed by the Insurance Company by incorporating the conditions in the policy. The exclusion of liability is not on the basis of Section 149 itself, but on the basis of any violation of the terms and conditions which are permissible to be imposed in the policy. Since the policy itself had permitted a person who had held a driving licence, obviously in the past, but was not disqualified to hold licence at the time of accident, there is no violation of the condition. The aforesaid view taken by me gains support from the decision reported in AIR 1975 Mad. 250 (Madras Motor and General Insurance Co. Ltd. v. Madathi Animal and Anr.).
9. Learned counsels appearing for the appellant as well as the claimant-respondents raised an interesting question. It was contended that the liability in respect of the paid driver is specifically covered and as such, the question as to whether there was valid driving licence or not, is immaterial. However, in view of the opinion already expressed, it is unnecessary to deal with the aforesaid question.
10. For the aforesaid reasons, I allow this appeal in part to the extent that the compensation is payable by the Insurance Company. The amount deposited by the owner shall be disbursed to the claimant-respondents. However, the owner would be at liberty to get reimbursement from the Insurance Company by initiating appropriate certificate proceeding on the basis of this order.
There will be no order as to costs.