Madras High Court
M/S.Reliance General Insurance Co. Ltd vs P.Naveen on 25 February, 2020
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.M.A.No.4266 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 25.02.2020
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.A.No.4266 of 2019
M/s.Reliance General Insurance Co. Ltd,
2nd Floor, PLA Kanagu Towers,
No.15-A, Thillai Nagar Main Road,
11th Cross, Trichy. ... Appellant
Vs.
1.P.Naveen
2.S.Periyasamy
3.Sri Venkateswara Traders ... Respondents
Civil Miscellaneous Appeal is filed under Section 30 of the
Workmens Compensation Act 1923, against the Order made in
E.C.No.642 of 2015(OLD WC NO: 765 of 2014) dated 16.10.2017
on the file of the learned Commissioner for WorkMens
Compensation/Deputy Commissioner of Labour, Coonoor at Nilgris
District.
For Appellant : Mr.N.Vijaya Raghavan
For Respondents : Mr.MA.P.Thangavel
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http://www.judis.nic.in
C.M.A.No.4266 of 2019
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside an order was passed in E.C.No.642 of 2015(OLD WC NO:
765 of 2014) dated 16.10.2017 by the Commissioner for Workmen's Compensation/Deputy Commissioner of Labour at Coonoor, Nilgiris District.
2. The case of the 1st respondent/ claimant is that he was working as a load man in a load auto belonging to the 2 nd respondent, bearing Registration No.TN 28 AM 9327, which was driven by the 2nd respondent itself. On 28.04.2014, while taking glasses to Chennai from Namakkal around 11.10 p.m., at Kancheepuram District, near Singaperumal Koil, Melrosapuram, near I.O.C. Petrol bunk, the above said auto tyre got burst, and they stopped the vehicle and the 1st respondent helped the 2nd respondent to change the auto tyre. At that time, a lorry bearing Registration No.TN 31 AY 8205 dashed the above said auto in a rash and negligence manner and the 1st respondent sustained greivous injuries. Thereafter, 2/14 http://www.judis.nic.in C.M.A.No.4266 of 2019 the 1st respondent was admitted in the Chengalpet Government Hospital and later, he was admitted in Namakkal Akshaya Hospital as inpatient and he spent Rs.1 lakh for his medical expenses. The 1st respondent was working as a load man in the 2nd respondent vehicle. At the time of accident, the 1st respondent was aged 24 years and he was earning Rs.7,500/- as salary and as Rs.50/- as daily batta. Due to this accident, the 1st respondent sustained permanent disability and permanent loss of income. He was not able to go to any other work. The 2nd respondent insured his vehicle with the appellant/insurance Company for a period from 03.09.2013 to 02.09.2014. The injured/1st respondent herein, has filed a petition for compensation for a sum of Rs.5,00,000/-, as against, the said claim petition, the learned Commissioner for Workmen's Compensation/Deputy Commissioner of Labour, Coonoor, Nilgris has awarded a sum of Rs.2,27,154/-, as total compensation.
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3. Denying the averments of the 1st respondent / claimant, the appellant has filed a counter affidavit stating that there was no employer and employee relationship between the 1st and the 2nd respondents and the 1st respondent was not worked under the 2nd respondent at the time of the accident. The 1st respondent is put to strict proof of the same through documentary evidence like Trip sheet, Invoice Bills, Wages/Salary Bills etc., The 2nd respondent has wilfully committed breach of policy condition by permitting an unlicensed driver to drive the vehicle on the date of the accident. Since the act of 2nd respondent constitutes deliberate, wilful violation of policy condition, the appellant insurance company is not liable to indemnify the owner of the vehicle. If any compensation is awarded to the 1st respondent it is only the 2nd respondent, owner of the vehicle, who is liable to pay the same and prays for dismissal.
4. The counter of the appellant proceeds to state that the 1st respondent is the load man and no premium was paid to 4/14 http://www.judis.nic.in C.M.A.No.4266 of 2019 the load man. There is no policy coverage for the load man. Hence, this claim application is liable to be dismissed against the appellant and the 2nd respondent alone is liable to pay the compensation. The 2nd respondent was not having RC, FC and Permit at the material time of the accident and the FIR was registered against the lorry driver for his rash and negligent driving of the vehicle. Hence, the lorry driver alone is liable to pay compensation and claim by the 1st respondent in the Workmen's Compensation Act, is not correct and they ought to have file a MACT before the concerned Tribunal and therefore, it has liable to be dismissed. Further, the policy does not cover the incident narrated in the petition, however, the burden is on the 1st respondent to prove the same. There is no permit to the 2nd respondent vehicle and he has violated the permit and policy condition and MV Act.
5. The learned Deputy Commissioner for Employees Workmen Compensation, Labour II, Chennai, after considering the pleadings, counter affidavits and the materials placed on 5/14 http://www.judis.nic.in C.M.A.No.4266 of 2019 record, had awarded a sum of Rs.2,71,154/- to the 1st respondent/claimant with interest at 12% per annum. Aggrieved over the same, the appellant / insurance company has come up with the present appeal before this Court.
6. The appellant has raised the following substantial questions of law and seeks a direction to the learned Commissioner for Workmen's Compensation/Deputy Commissioner of Labour, Coonoor at Nilgris District to withheld the payment of Rs.2,71,154 /-, which was deposited pursuant to the order passed in E.C.No.642 of 2015(OLD WC NO: 765 of 2014) dated 16.10.2017.
a).Whether the Commissioner has jurisdiction to pass Pay & Recover order in a case where the victim was not covered under the policy?
b). Whether the Commissioner could direct the Appellant to pay compensation for an employee who is not covered by the Policy?
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7. The learned counsel for the appellant submits that the Deputy Commissioner of Labour had failed to consider that the policy did not cover the cleaner as no premium was paid for the same by the owner of the vehicle, the appellant has no liability for such persons and hence pay and recovery order cannot be passed in such cases and the 2nd respondent/deceased, driver cum owner of the vehicle in TN 28 AM 9327 has not endorsed his driving licence along with the badge at the time of accident and thereby pleaded to set aside the order passed in E.C.No.642 of 2015(OLD WC NO: 765 of 2014) dated 16.10.2017 by the learned Commissioner for Workmen's Compensation, Coonoor, Nilgris District.
8. The learned counsel for the 1st respondent submits that the 2nd respondent insured his vehicle with the appellant/insurance company and 1st respondent is also the employer of the 2nd respondent. After the accident, the 1st respondent had suffered 20% of disability and loss of permanent income.
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9. On perusal of the records, it is seen from the findings of the said Commissioner that, On 28.04.2014 at 23.10 hrs a lorry which came in a rash and negligent manner had dashed against the auto, at Kancheepuram District, near Singaperumal Koil, Melrosapuram, near I.O.C. Petrol bunk, when the respondents 1 and 2 trying to change the burst tyre, of the load auto. Due to the said accident the entire load of glasses were broken and the 2nd respondent, who was working as a driver died on the spot and 1st respondent had sustained grievous injuries and the examination was conducted on 29.04.2014 at 9.00 p.m, and the following injuries were found
1.Rt.Chest 4th rib fracture, 2.Right Chest Contusion, 3. Cervical spine contusion, 4. abrasion would right forearm.
10. Further, while cross examination, the 1st respondent had admitted that he was working as a loadman and the lorry driver is rash and negligent, who had caused the accident. Upon perusal of the disability certificate, it is seen 8/14 http://www.judis.nic.in C.M.A.No.4266 of 2019 that the 1st respondent was admitted in hospital on 29.04.2014 and discharged on 03.05.2014. Further, from the discharge summary and wound certificate produced, it is clear that the 1st respondent cannot do hard and heavy work. It is highly strainful to do the work because of right chest 4th rib fracure, right chest contusion, cervical spine contusion, except abrasion in the right forearm. These are all permanent disabilities and he is physically handicapped amounting to loss of functional capacity with permanent disability of 20 %. The disability is calculated based on the order from Government of India, Ministry of Welfare Uniform Definitions of the Physically handicapped code Annexure V, year 1986. The claimant had marked documents from Ex.P1 to Ex.P10 and two persons were examined, viz., 1st respondent and the Doctor. At the time of accident, though it is pleaded by the 1st respondent that he was drawing a salary of Rs.9,309/- Tribunal by taking into account the minimum wage fixed in the Workmen's Compensation Act under Section 4(1B) and G.O., S.O.No.1258 (E) dated 31.05.2010, has fixed salary Rs.8,000/-. The 9/14 http://www.judis.nic.in C.M.A.No.4266 of 2019 appellant has marked documents from Ex.R1 to Ex.R6 and examined two witnesses i.e., Durai and Sekar. The vehicle was insured for the period from 03.09.2013 to 02.09.2014. The insurance premium paid not only for the vehicle but also for the driver along with the seating capacity of the vehicle (1+1) (i.e) the cleaner. The 1st respondent is a loadman cum cleaner and therefore, he is entitled for compensation. While cross examination of the appellant's witness, namely, one sekar who had stated that the deceased Periyasamy/2nd respondent was having licence for driving light goods vehicle and though he was not having his badge endorsement, by following the Judgement reported in 2015(2)TN MAC(274), wherein it is held that “Ramu and others Vs. S.Venkatachalam, Branch Manger, National Insurance Company Ltd., Karaikudi” “Non possession of valid driving licence – Breach of terms and conditions of policy – effect- deceased, Driver of Mini lorry possessing licence to drive light motor vehicle without any badge – not a valid licence to drive mini lorry – 10/14 http://www.judis.nic.in C.M.A.No.4266 of 2019 W.C.Commissioner directing owner to pay compensation – If proper -Driver of Mini Lorry since possesed a valid drivng licence to drive LMV, ought to have obtained additional endorsement for driving licence to drive any class of vehicles – In absence of such endorsement, driver cannot be said to be in possession of valid driving licence – Breach of Terms and conditions of policy of Insurance- Insurer is liable to pay compenstion to the claimants and recover the same from Insured / Owner -SC followed – Order of W.C.Commissioner accordingly modified.” the Tribunal has followed the above said decision and awarded a sum of Rs.2,09,731/- along with interest at 12% per annum to the workman. The Tribunal has passed a reasonable order on the facts of the case on hand.
11. Hence, this Court is of the view in the above circumstances that there is no error in the order passed by the Court below warranting interference. The final award dated 11/14 http://www.judis.nic.in C.M.A.No.4266 of 2019 16.10.2017 passed by the learned Workmen's Compensation, Coonoor, Nilgiris District in E.C.No.642 of 2015(OLD WC NO:
765 of 2014) is hereby confirmed.
12. At this stage the learned counsel for the 1st respondent submitted that the entire awarded amount has been deposited in the bank and the same has been withdrawn by the claimants.
13. In view of the above observations, the present Civil Miscellaneous Appeal is dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.
25.02.2020 rri Index : yes/no Internet : yes/no 12/14 http://www.judis.nic.in C.M.A.No.4266 of 2019 To
1.The Commissioner of Workmen Compensation / Deputy Commissioner of Labour, Coonoor, Nilgiris District.
2.The Section Officer, V.R. Section, High Court, Madras.13/14
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