Karnataka High Court
The New India Assurance Company Limited vs Dhondiram Ganpat Motipowale And Anr. on 17 April, 2002
Equivalent citations: 2003ACJ1450, [2002(94)FLR1068], ILR2002KAR2568, 2002(5)KARLJ40, 2002 AIR KANT HCR 2340, 2002 A I H C 2848, (2002) 94 FACLR 1068, (2003) 3 ACJ 1450, (2002) 5 KANT LJ 40, (2002) 3 TAC 370, (2002) 3 CURLR 370, 2002 LABLR 812, (2002) 3 ACC 141
Author: A.M. Farooq
Bench: A.M. Farooq
JUDGMENT A.M. Farooq, J.
1. This is an appeal filed by the Insurance Company against the award made by the Commissioner for Workmen's Compensation awarding a compensation of Rs. 1,69,056/- together with interest at 12% p.a.
2. Brief facts of the case are that the claimant filed an application under the Workmen's Compensation Act contending that he was the driver in motor vehicle bearing No. MH 12/708 of the first respondent, Sri Kailasa Shankar Pandarkar on a salary of Rs. 3,000/- and daily bhata of Rs. 30/-. That on 26-3-1997 when he was driving the vehicle from Belgaum to Madras and when the vehicle came near Mangutti Cross on P.B. Road, due to mechanical defect the vehicle dashed against a tamarind tree as a result of which the applicant sustained grievous injury on his right eyebrow, fracture of right leg and right knee and he also suffered other multiple injuries all over the body. He was shifted to District Hospital, Belgaum and despite best medical treatment, he could not recover from the disabilities suffered by him in the accident and he could not work as a driver any more. The claimant therefore, contended that being a worker under the respondent 1 and the accident having occurred in the course of his employment, the respondent 1 has not paid him the compensation. The claimant has also made the appellant herein as the respondent 2 on the ground that the vehicle in question was insured with the respondent 2.
3. The respondent 1 has remained ex parte and the respondent 2-ap-pellant filed statement of objections disputing the relationship of the applicant with the respondent 1 as workman and employee. It also disputed the age and wage received by the claimant. It also disputed about the accident having occurred during the course of employment and out of employment. It further contended that presuming that the vehicle in question was insured and the accident occurred during the course of employment then the liability of the Insurance Company is strictly covered by the terms, conditions and limitations of the policy under the Motor Vehicles Act and Rules.
4. The Court below on consideration of the pleadings of the parties, framed the following issues:
1. Whether the applicant is a workman as defined under Section 2(1)(n) of the Act?
2. Whether the accident occurred during the course of employment and out of employment?
3. What was the age of the applicant at the time of accident?
4. What was the wage of the applicant at the time of accident?
5. Whether the applicant has proved that he is entitled for the compensation as claimed by him? If not, to what amount he is entitled for?
6. Whether the applicant is entitled to receive the interest and penalty?
7. Whether the respondent is liable to pay the amount of compensation, interest and penalty?
8. To what order?
The records further show that the appellant who was a party before the Commissioner did not raise his little finger to see that any issue is raised as regards its contentions and as to its liability to pay the compensation in accordance with the insurance policy.
5. The Court below answered all the issues raised in favour of the applicant. While answering Issue No. 7, the Commissioner has observed that the claimant in his cross-examination has stated that he was taking the vehicle and the vehicle belongs to Tata Telco and that respondent 1 is the contractor for that company who has undertaken contract for transportation of the vehicles. As per the document, Ex. P. 2, the vehicle in question stands insured and the insurance company has issued certificate to that effect. The Commissioner has observed that even though the Insurance Company denied its issuing the policy in respect of the vehicle but under Ex. P. 2, the vehicle in question is found insured with the appellant-company. It has held that since the company has insured the vehicle with respondent 2-appellant ultimately, it is the appellant who has to indemnify the company on its behalf and directed the appellant-insurance company to pay the compensation awarded.
6. Sri O. Mahesh, learned Counsel appearing for the Insurance Company contended before me that the award made by the lower Court is clearly wrong. It is submitted by him that admittedly, the respondent 1 is not the owner of the vehicle and it is the Tata Telco which is the owner of the vehicle and when the owner has not been impleaded by the claimant in his claim petition, the Commissioner had no jurisdiction to make the Insurance Company liable to pay the compensation.
7. The learned Counsel cited before me the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited v. Sunita Rathi and Ors., and a judgment of this Court in National Insurance Company Limited, Bangalore v. Prakashchand Hanuman Bhugale and Ors., 1997(1) Kar. L.J. 739, 1997 ACJ 960 (Kar.) and another unreported judgment in M.F.A. No. 1947 of 1998, DD: 1-1-2001. What I could see from those decisions is that the facts of those cases are quite different from the facts of this case, Here, the materials on record disclose that even though the respondent 1 is not the owner of the vehicle which is involved in the accident and which is insured with the appellant-insurance company, but respondent 1 is a person who was in possession of the vehicle in question as a contractor with the owner Tata Telco. The definition of owner as con-tained under Sub-section (30) of Section 2 of the Motor Vehicles Act reads as follows:
" 'Owner' means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement".
When the vehicle in question even though belong to Tata Telco, Tata Telco under an agreement with the respondent 1 has given possession of the vehicle to the respondent 1. Under the agreement the respondent 1 was in possession of the vehicle and he should be construed as a owner under the definition. In such circumstances, the same divine policy will hold good.
8. The claimant is the driver of the vehicle and the facts and circumstances show that he is an illiterate person and innocently he has impleaded the respondent 1 as the owner in view of the fact that it was the respondent 1 who was in possession of the vehicle under the agreement with Tata Telco. From the objection taken by the Insurance Company it appears that the only intention of the Insurance Company is to escape from the liability to pay the compensation. Initially it denied that it has given the policy but when the policy was produced it had no other go but to admit the same. Thereafter, the appellant did not take up any further contention. It is only in the appeal the appellant is contending that apart from respondent 1 the real owner should have been impleaded.
9. In none of the judgments cited by the learned Counsel appearing for the appellant, the facts are similar to this case. Those cases pertain to facts where the owner was not at all made party but in this case the owner as defined under Motor Vehicles Act is made a party even though he is not the registered owner of the vehicle. But he is the owner as defined under the Motor Vehicles Act.
10. In similar circumstances, this Court in Oriental Insurance Company Limited, Bangalore v. S. Savitha, has held that where the pleadings specifically point to a liability and a passing denial is put into the written statement but nothing is done in furtherance thereof and more so, in a situation where at the stage of framing of issues, at the stage of evidence and at the stage of the arguments, the liability is not specifically disputed, the Court would be justified in holding that the original claim has gone uncontroverted and would be justified in ignoring the passing denial merely recorded in the objection statement. It further held that in a given situation where the respondent contends that he has wrongly been made a party to the proceedings, it is his duty to apply to the Court to dismiss the proceedings as against him and if he does not do this merely by taking a contention that a denial that has been made in the written statement would not in the least bit benefit the respondent because it is well-known that all sorts of denials are put in written statement, sometimes even absurd ones. Further, this Court has held that in such circumstances, this Court is required to take a very practical and down to earth view of these cases, the first of them being that in situations where the claimant is an illiterate villager and is heavily handicapped as far as resources and other aspects including legal assistance is concerned, that there are many lapses in the discharge of the duties. Under these circumstances, a corresponding obligation is cast on the respondents who are made parties and they cannot be heard to contend that they were required to do nothing. It was held that the obligation on the part of the claimant in the circumstances is therefore co extenso with the obligation of the Insurance Company to perform its part during the course of the trial. That the Insurance Company must effectively and adequately contest a false claim if it is made and when there is absolutely no contest at all, the claimant would undoubtedly succeed virtually by default.
11. The observation made by this Court is clearly applicable to the facts and circumstances of the present case. The Insurance Company took up a false contention at the initial stage to contend that the vehicle in question was not at all insured with them. It did not tell or contend before the Claims Tribunal that an issue has to be framed as to the question of the first respondent being the owner when the real owner is another person. It also did not argue this point before the Claims Tribunal when the award was passed and after years later, the appellant comes up with a new plea which is not borne out from the pleadings or arguments. Therefore, I do not find any merit in this appeal.
12. This appeal is dismissed as having no merits. The amount in deposit before this Court shall be transferred to the account of the Workmen's Compensation Commissioner.