Madhya Pradesh High Court
Mumtajbi And Ors. vs Noor Mohammad And Ors. on 24 July, 1997
Equivalent citations: II(1998)ACC665, 1999ACJ1547
Author: Shambhoo Singh
Bench: Shambhoo Singh
JUDGMENT R.D. Shukla, J.
1. This appeal is directed against the judgment and order dated 13.11.1995 of the Commissioner for Workmen's Compensation, Ujjain, passed in Case No. 5 of 1993 W.C. Fatal whereby while allowing the application of the applicant, he granted compensation of Rs. 83,192 with no order as to penalty and interest, in favour of the appellants; with further direction that payment has to be made by the owner of the vehicle and not by the insurance company.
2. Undisputed facts of the case are that deceased Bhuru alias Salim, who was working as driver on Eicher truck No. 7109 has died. The respondent No. 1 was registered owner of the vehicle and the vehicle was in possession of respondent No. 2 who was taking work from the deceased on behalf of the respondent No. 1. Respondent No. 2 employed deceased Bhuru alias Salim.
3. Respondent No. 3 is the insurance company with which vehicle was insured. There was a comprehensive insurance policy.
4. Originally Satyanarayan was arrayed as respondent No. 2 as he died, his son Manish Kumar was brought on record as respondent No. 2.
5. It is also not disputed that the Eicher truck met with an accident and Bhuru alias Salim died in consequence thereof. The accident occurred between the night of 3-4.4.1993.
6. The claimants-appellants are the wife and four minor children, born out of wedlock of deceased Bhuru alias Salim and Mumtajbi. Claim on behalf of minor children has been filed through their next friend and guardian mother Mumtajbi.
7. Case of the claimants-appellants is that notice was issued through their counsel Mr. Sharma on 25.5.1993, the same was received by the insurance company, respondent No. 3, while the respondent Nos. 1 and 2 avoided service of notice. Thereafter, the owner of the vehicle and the insurance company failed to deposit compensation, therefore, the application under Section 10 of the Workmen's Compensation Act, 1923 (hereinafter 'the Act') was filed before the Commissioner, Workmen's Compensation.
8. The respondent No. 3 contested the claim. Respondent Nos. 1 and 2 were ex pane before the Commissioner. Respondent No. 3 contested the claim with the assertions that the deceased himself was a driver and he has no valid licence for driving heavy motor vehicle, i.e., Eicher truck and, therefore, insurance company is not bound to pay the compensation.
9. Learned Commissioner, Workmen's Compensation, accepted the claim and directed payment of Rs. 83,192 but the payment was directed to be made by the owner of the vehicle, who was ex parte, thus insurance company was exonerated, interest pendente lite was not awarded holding that notice was not given and for this reason penalty also was not awarded. Hence this appeal by claimants.
10. Contention of learned Counsel for the appellants is that the finding as to deceased not having a valid licence is perverse. Second contention of learned Counsel for the appellants is that the notice, in fact, was given on 25.5.1993 after about a month which was received by the insurance company and, therefore, finding as to non-receipt of notice is per verse also, even otherwise the owner of the vehicle must have had knowledge of the accident as vehicle itself got damaged.
11. As against it, learned Counsel for the respondent No. 1 has submitted that in fact plying of the vehicle was managed by the respondent No. 2, the vehicle was insured with the respondent No. 3 at the instance of respondent No. 1, who is the owner of the vehicle.
12. Contention of the learned Counsel Mr A.H. Khan, appearing for the respondent Nos. 2 and 3 is that the deceased fraudulently obtained a licence of heavy motor vehicle from Jhansi and it was within his knowledge and therefore, the learned Commissioner was justified in not saddling the responsibility of payment on the respondent No. 3, insurance company.
The second contention of the learned Counsel is that it has not been proved that the respondent No. 2 had employed the deceased at the instance of the respondent No. 1.
13. We were taken to the evidence on record.
14. The learned Commissioner has in answer to issue No. 3 given a positive finding that the deceased was an employee of the respondent Nos. 1 and 2. Even otherwise it is difficult to believe that a person would be allowed to work on the truck without the permission of the owner and the agent thereof.
15. Claimants have examined Suleman, PW 1 and Mumtajbi, PW 2. Both of them have stated that the deceased was employed by the respondent No. 2 with permission of the respondent No. 1. There is no rebuttal. Thus we have nothing to hold against the finding of the Commissioner with respect to the fact of employment by the respondent Nos. 1 and 2.
16. We have perused the licence Exh. P/2 and also Exhs. D/4 and D/5 filed by the insurance company. In ail the three documents it has been shown that the deceased had a licence from Ujjain, of course, the licence was for a light motor vehicle. Endorsement probably indicated that the licence was endorsed for heavy motor vehicle from Jhansi. Firstly, no evidence was collected to show (as nobody has been examined from the Office of Licensing Authority) that no licence was issued to Salim from Ujjain and, therefore, this contention of the insurance company cannot be accepted that the licence was forged. In consequence thereof this can also be not accepted that he had no licence for driving heavy motor vehicle.
17. However, for the sake of arguments if it is accepted that deceased had licence only for driving light motor vehicle it will have to be seen that whether the Eicher truck would come within the definition of light vehicle. Section 2(21) of the Motor Vehicles Act, 1988 (hereinafter 'the Act, 1988') defines 'light motor vehicle' means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which does not exceed 6,000 kilograms. It is noteworthy that there has been amendment in the Act with effect from 14.11.1994 and this unladen weight has been increased to 7,500 kilograms.
18. Section 2(16) of the Act, 1988, defines 'heavy goods vehicle' which reads as follows:
'heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a tractor or a roadroller the unladen weight of either of which exceeds 12,000 kilograms.
'Medium goods vehicle' has been defined to be any goods carriage other than a light motor vehicle or a heavy goods vehicle.
19. On perusal of Exhs. D/4 and D/5, 'report of the insurance company', it is evident that unladen weight of Eicher truck was 5,950 kg. which is below 6,000 kg. Therefore, Eicher truck would be treated to be a light vehicle. There is no dispute that Salim had a valid licence of driving light motor vehicle and in that case also it will be deemed that the deceased had valid and proper licence and finding of learned Commissioner to that extent is perverse and deserves to be set aside. We, therefore, hereby set aside it.
20. The next point that arises for determination is as to whether rejection of the claim of interest pendente lite and refusal to award penalty is proper?
21. There is no dispute that notice was received by the insurance company. It was impossible to believe that the owner of the truck and the manager of the truck, respondent No. 2 had no knowledge of the death of Bhuru alias Salim, who had died while driving the truck owned by respondent No. 1 and managed by respondent No. 2 and, therefore, this finding that respondent Nos. 1 and 2 had no notice, is perverse and deserves to be set aside and we set aside it.
22. The claim petition was filed on 17.8.1993, as is evident from the first order-sheet. The evidence of claimant was closed on 17.8.1994. Order-sheet does not show that the delay in disposal was wholly because of claimants, in such a situation claimants are entitled for interest pendente lite.
23. Section 4A(3) of the Workmen's Compensation Act, 1923, provides that the employer should normally pay the compensation within one month from the date of receipt of the notice. Commissioner may also direct for payment of the same and if the delay is caused and no justification for the delay is given, penalty to the extent of 50 per cent of the amount can be awarded. The claim was filed as observed earlier on 17.8.1993.
24. Direction for payment of interim compensation was issued on 25.8.1993. Here owner and the insurance company contested liability of the payment and, therefore, there was dispute about making of payment by owner or the insurance company, in such a situation they are liable to pay penalty at the rate of 30 per cent of amount of compensation only.
25. In view of the discussion above, the appeal succeeds and is allowed. The claimants-appellants are allowed compensation of Rs. 83,192 plus the interest from one month after the accident, i.e., 4.5.1993 till realisation of the same at the rate of 6 per cent per annum. Claimants are further entitled to penalty at the rate of 30 per cent of the principal amount of compensation with interest at the rate of 6 per cent per annum as directed above. The respondents shall bear their own costs and costs of the claimants of this appeal. Amount paid (if any) shall be adjusted. Compensation shall be paid within three months from today or else the claimants would be entitled to interest at the rate of 18 per cent per annum on whole amount from the date of this judgment.