N.I.C.Ltd vs Uda And Ors. (2024:Rj-Jd:33188) on 8 August, 2024

[Cites 11, Cited by 0]

Rajasthan High Court - Jodhpur

N.I.C.Ltd vs Uda And Ors. (2024:Rj-Jd:33188) on 8 August, 2024

1. By way of the present misc. appeal, the appellant-Insurance Company challenges the mendacity of the judgment/award dated 18.01.2012 passed by the Workmen's Compensation Commissioner, Chittorgarh in Case No.WCC/F/51/09 whereby the appellant-Insurance Company has been held liable to make payment of compensation to the tune of ₹3,42,810/- to the respondents Nos.1 to 6.

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2. The factual matrix of the case is that respondents Nos.1 to 6 filed a claim petition under the Workmen's Compensation Act, 1923 ('the Act of 1923') before the Workmen's Compensation Commissioner, Chittorgarh ('the Commissioner') against the appellant-Insurance Company and respondents Nos.7 and 8 inter alia stating therein that on 20.02.2009 at 5.00 AM, respondent No.7 (driver of the tractor bearing registration No.RJ-09-RA- 3233), was moving from Makanpura to Bharbada for loading sand/ soil and Narain (since deceased) was sitting on the tractor as labourer but due to rash and negligent driving of respondent No.7, Narain fell down and came under the wheel of the tractor, resulting in his death on the spot. The deceased was allegedly 16 years of age at the time of incident and used to earn ₹4,000/- per month and therefore, the family members (claimants) claimed for compensation.

3. A reply came to be filed by the Insurance Company denying the contention in the claim petition regarding age of the deceased as 16 years and submitted that he was a child aged 13-14 years and was traveling on the aforesaid tractor as an unauthorized occupant. It was also submitted that driver of the offending vehicle was not having valid and effective driving licence and therefore, the Insurance Company is not liable to pay any compensation. It was also contended that the said tractor was insured under a Farmer Package Policy under which, an owner can use the tractor for his own agriculture purposes, but at the time of accident the said tractor was being used as a commercial vehicle which is violative of the terms and conditions of the policy and therefore, craved dismissal of the claim petition. (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (3 of 14) [CMA-673/2012]

4. As per pleadings of both the parties, the Commissioner framed four issues which are as follows:-

"1. vk;k e`rd ukjk;.k vizkFkhZ la[;k 2 ds okgu VsªDVj ftldk uEcj 09vkj, 3233 Fkk ij cgSfl;r etnwj fu;ksftr Fkk rFkk fnukad 20@2@2009 dks fu;ksftr ds nkSjku o fu;kstu ds dkj.k ?kfVr nq?kZVuk esa mldh e`R;q gqbZ\

2. vk;k e`rd dh ekfld etnwjh 4000@& :i, izfrekg Fkh rFkk mldh mez 16 o"kZ Fkh\

3. vk;k chek dEiuh viuh vkifRr;ksa ds vk/kkj ij {kfriwfrZ vnk djus ds fy, mRrjnk;h ugha gS\

4. vuqrks"kA"

5. In support of the claim petition, 3 witnesses were examined and some documents were exhibited. On behalf of the Insurance Company, statement of one Vijay Kumar Bandi was recorded and one document i.e. Insurance Policy (Ex.A/1) was produced in evidence. Besides this the Insurance Company also examined one Lalit Singh and one more document was exhibited in evidence.

6. After hearing the parties, the Commissioner, Chittorgarh passed the judgment/award dated 18.01.2012 while entitling claimants an amount of compensation to the tune of ₹3,42,810/- along with interest @ 9% per annum, ₹2,500/- under Funeral Expenses and ₹50,000/- as penalty upon the respondent No.7- Pratap Singh. Thus, being dissatisfied of the same, the respondents/claimants have preferred the present misc. appeal.

7. Learned counsel representing the appellant-Insurance company submits that the Commissioner, Chittorgarh has seriously erred in passing of the impugned judgment/award and also in allowing the claim petition of the claimants as the above numbered tractor was insured with the appellant-Insurance company under Farmer Package Policy for owner's agricultural work only but at the time of the untoward incident, the tractor was used as a commercial vehicle, which is violative of the (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (4 of 14) [CMA-673/2012] conditions of the Insurance Policy. He further submits that while issuing the insurance policy, premium of risk of driver was charged and the appellant is responsible to pay at that extent only, but at the time of the accident, the deceased was travelling in the tractor as an unauthorized occupant whose risk was not covered under the policy and no premium was charged in this respect. He also submits that as per registration certificate, only one person i.e. driver, is allowed to sit on the tractor and not any other passenger. He also submits that the deceased was employed as labour on the tractor and was not employed by the owner of the tractor as a labour, nor he was in his employment. Lalit Singh (NAW-1), who was examined and he also stated on oath that he never employed Narain, nor any salary was being paid to him. He also submits that at the time of accident, driver of the offending vehicle was not having valid and effective driving licence and the said fact was within knowledge of the owner of the tractor and despite that, the tractor was given to the driver. He also submits that income of the deceased was not assessed properly i.e. ₹3,000/- per month merely on the basis of statements of Prakash and Savra whereas, father of the deceased i.e. respondent No.1-Uda has specifically admitted in his cross-examination that the deceased was earning ₹50-60 per day and he used to work for 10-15 days in a month. Learned counsel for the Insurance Company, thus, urges that the impugned judgment/award dated 18.01.2012 passed by the Workmen's Compensation Commissioner, Chittorgarh, deserves to be dismissed with costs.

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8. Learned counsel representing the respondent No.7 submits that the deceased Narain was never employed on his tractor and the said fact is confirmed by the statement of Lalit Singh (NAW-1).

9. Learned counsel representing the respondents/claimants on the other hand, vehemently objects and submits that the instant misc. appeal deserves dismissal. He submits that the deceased was a child aged 13-14 years and was not working as a labour. He prayed for the dismissal of the appeal on the ground of lack of primary evidence.

10. I have heard and considered the submissions advanced at Bar by the learned counsel for the parties and have gone through the material available on record.

11. The appellant, in the instant appeal, has suggested the following questions of law, which reads as under: -

"(I) Whether the learned Commissioner has committed grave error of law in failing to consider that the tractor in question was insured under Farmer Package Policy for agriculture purpose of the owner, whereas at the time of accident, the said tractor was being used as a commercial vehicle?

(II) Whether the learned Commissioner has committed grave error of law in not considering that at the time of accident, the driver of the tractor was not having a valid and effective driving license?

(III) Whether the learned Commissioner has committed grave error of law in not considering that the deceased was not in employment of owner of the tractor at the time of the accident. Therefore, the (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (6 of 14) [CMA-673/2012] claimants are not entitled for compensation under the Workmen's Compensation Act?

(IV) Whether the learned Commissioner has committed a grave error of law in not considering that the appellant has charged premium for the risk of driver only and not in respect of any unauthorized occupant on the tractor?

(V) Whether at the time of the accident the deceased was earning ₹3,000/- per month?"

12. Insofar as the first question of law as suggested by the appellant in the present appeal is concerned, this Court finds that the said question of law has already been adjudicated by the Commissioner and while deciding the said issue, the Commissioner held that as per the Insurance Policy (Exb.1), the word 'driver' is not mentioned anywhere in the Policy and thus the contention of the appellant insurance company has been rightly rejected by the Commissioner that they cannot be held liable for paying compensation incase of an occupant of the vehicle, inasmuch as the policy does not make any such distinction. Thus, in the considered opinion of this Court, the Commissioner has rightly held that the insurance company is liable for risks and losses incurred to one person, i.e. the deceased, Narain in the present case who died during the course of employment under respondent no. 7.

13. Insofar as the third question of law as suggested by the appellant in the present appeal is concerned, this Court finds that the said question of law has already been adjudicated by the Commissioner and while deciding the said issue, the (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (7 of 14) [CMA-673/2012] Commissioner held that the respondent No.7 herein paid a sum of ₹50,000/- to the dependents of the deceased vide Settlement Letter (Exhibit A/2). It is also seen that as per the depostion made by Lalit Singh (NAW-1), the deceased Narain died because he came in front of the tractor of respondent No.7 and due to the pressure of the villagers as well as the ongoing election, the respondent No.7 paid a sum of ₹50,000/- to the dependents of the deceased. Thus, this Court finds that in the absence of the respondents no. 1 and 2 being able to demonstrate before the Commissioner that under which law the said settlement has been made, and further while taking into consideration the deposition made by Lalit Singh, the Commissioner has rightly held that the deceased was under the employment of respondent no. 7.

14. Insofar as the second question of law as suggested by the appellant in the present appeal is concerned, this Court finds that the said question of law has already been adjudicated by the Commissioner and while deciding the said issue, the Commissioner held that the statement made by NAW-1, Lalit Singh was also substantiated by the deposition made by Prakash and Savra given to the police before the Commissioner that the deceased Narain was the employee of the respondent No.7 herein and he died during the course of employment under the respondent No.7. It is also seen that as per Postmortem Report (Exhibit-2) age of the deceased was proved to be 16 years and as per the statements of Prakash and Savra, the deceased used to earn ₹3,000/- as a monthly income. Thus, this Court finds no perversity in the observation of the Commissioner with regard to (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (8 of 14) [CMA-673/2012] the age of the deceased and the income earned by him under employment of respondent no. 7.

15. Insofar as the fourth question of law as suggested by the appellant in the present appeal is concerned, this Court finds that the said question of law has already been adjudicated by the Commissioner and while deciding the said issue, the Commissioner held that as per the Insurance Policy (Exb.1) the vehicle was insured only for the agricultural purposes and the Commissioner has rightly observed that carrying bajri for construction of stable and storage facilities for the animals and storing grains respectively, would fall under the ambit of agricultural purposes and thus, the contention of the appellant insurance company would not survive that at the time of the accident, the said vehicle was being plied for other purposes than agriculture.

16. Moreover, this Court observes that once the employee- employer relationship has been established under the Act of 1923, the insurance company cannot be exonerated from the liability to pay on the ground of invalid permit being held by the employee, i.e. deceased Narain in the present case and thus, the Commissioner rightly held the appellant insurance company liable to pay the compensation.

17. Further, the question no. (V) suggested by the appellants/claimants in the instant appeal, is question of fact, wherein the Court will have to re-appreciate the findings given by the Commissioner, which in the instant appeal cannot be gone into, inasmuch as per proviso to Section 30 of the Act of 1923, which inter-alia provides that no appeal can lie against any order (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (9 of 14) [CMA-673/2012] unless a substantial question of law is involved. Section 30 of the Act of 1923 reads as under:

"Section 30. - (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:--

(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;

(aa) an order awarding interest or penalty under section 4A;

(b) an order refusing to allow redemption of a half-monthly payment;

(c) an order providing for the distribution of compensation among the dependants of a deceased *[employee], or disallowing any claim of a person alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or

(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than ten thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify:

Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:

Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. (2) The period of limitation for an appeal under this section shall be sixty days.

(3) The provisions of section 5 of the Limitation Act, 1963 (36 of 1963)], shall be applicable to appeals under this section."

In the light of express provisions mentioned in the Act of 1923, wherein the proviso to Section 30 clearly limits the scope of jurisdiction for an appeal only to the substantial questions of law, this Court finds that the appeal is not maintainable under the said proviso.

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18. This Court also finds that the controversy regarding the interest to be applied on the award passed by the Commissioner has also been settled by the express provision of the Act of 1923 as well as the judgment passed by the Hon'ble Apex Court in the case of Ajaya Kumar Das & Anr. Versus Divisional Manager & Anr. [Civil Appeal No 447 of 2022 decided on 24 Janaury 2022], wherein it was upheld that Section 4A clearly prescribes the rate of interest to be applied from the date of the accident and not the date of adjudication of the claim. The relevant provision is reproduced as under:

"4A. Compensation to be paid when due and penalty for default.-

(1) Compensation under section 4 shall be paid as soon as it falls due."

Furthermore, the relevant para of the judgment passed by the Hon'ble Apex Court in the case of Ajaya Kumar Das (supra.) is reproduced as under:

"5. The judgment of the High Court is inexplicable. Having dismissed the appeal of the insurer on the ground of limitation, there was no occasion for the High Court to interfere on merits with the award of interest on compensation under the Workmen's Compensation Act, 1923. When the appeal was dismissed on the ground of limitation, the High Court could not have entertained it on merits. The error on the part of the High Court has led a labourer and his spouse to travel all the way to this Court. Though the accident took place in 2000, the course of litigation would now end only with the present judgment. To set the record straight, the High Court has erred on merits as well. Section 4A of the Workmen's Compensation Act 1923 stipulates that the Commissioner shall direct the employer to pay interest of 12% or at a higher rate, not exceeding the lending rates of any scheduled banks specifed, if the employer does not pay the compensation within one month from the date it fell due. In Saberabibi Yakubhai Shaikh v. National Insurance Co. Ltd; (2014) 2 SCC 298 this Court held that interest shall be paid on the compensation awarded from the date of the accident and not the date of adjudication of the claim in view of the (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (11 of 14) [CMA-673/2012] decision of this Court in Oriental Insurance Co. Ltd. v. Siby George, (2012) 12 SCC 540 where it was held that compensation would fall due from the date of the accident. Further, in the recent decision in P. Meenaraj v. P. Adigurusamy & Anr; Civil Appeal No 209 of 2022, decided on 6 January 2022 this Court reiterated that the applicant is entitled to interest from the date of accident while rejecting the submission that the award of interest should be after the expiry of 30 days from the date of accident. Thus, there was no legal basis for the High Court to delete the order of payment of interest."

Thus, this Court concurs with the findings of the Commissioner whereby the interest of 12% has been accrued on the award granted by the Commissioner, from the date of the accident.

19. This Court also finds that in the case of C. Manjamma & Anr. v. The Divisional Manager, The New India Assurance Co. Ltd. : 2022 (6) SCC 206, the Hon'ble Apex Court has followed the decision rendered in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali & Anr. : 2007 (11) SCC 668 and held that question of law would arise when the same is not dependent on examination of evidence and which does not require any fresh investigation of fact. It was also observed that a question of law would arise, when the finding is perverse or when no legal evidence is adduced to establish the jurisdictional facts and, therefore, in the present case this Court finds no substantial question of law for consideration. The relevant paragraph of the decision of the Hon'ble Apex Court in the case of C. Manjamma (supra) reads as under:

"12. Even in paragraph 42 of the decision in Shakuntala Chandrakant Shreshti (supra), this Court has made it clear that a question of law would arise when the same is not dependent on examination of evidence and which may not require any fresh investigation of fact. A question of law would arise, of course, when the finding is perverse or when no legal evidence is adduced to establish the jurisdictional facts. The observations made by the High Court in the present case in paragraph 21 appear to be rather of assumptive nature than of specific conclusion on (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (12 of 14) [CMA-673/2012] perversity. In other words, the view as taken by the Commissioner was the one based on the material placed on record, which basically established that the deceased was indeed employed as a driver on the vehicle; he was 30 years of age; and he died while on duty and his demise due to cardiac arrest was attributable to his job of driver. There had not been shown any other background aspect or any other clinching feature because of which death of the workman, a 30-year-old person, could be attributed to any other cause. That being the position, the view taken by the Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to interfere with the same, particularly when the case did not involve any substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933."

The relevant discussion made by the Hon'ble Apex Court in the case of Shakuntala Chandrakant Shreshti (supra) reads as under:

"A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record. We are not oblivious of the proposition of law as was stated by Frankfurter, J. in J.J.O' Leary, Dy. Commnr., Fourteenth Compensation Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that the court will not disturb a finding of an Administrative Tribunal when two views are possible and only because the appellate court can take a contrary view. But in the instant case, the Commissioner did not go into the jurisdictional facts not arrived at any finding based on any legal evidence in regard to the causal connection between the employment and the death."

Taking into account the above-mentioned judgments, this Court finds that the question no. (V) suggested by the appellants/claimants in the present appeal is not involving substantial questions of law, and therefore, require no indulgence from this Court.

20. This Court also finds that the High Court has limited jurisdiction under Section 30 of the Act of 1923 to grant indulgence in an appeal against an order passed by the Commissioner, Workmen Compensation Act, to the extent of there (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (13 of 14) [CMA-673/2012] being a substantial question of law involved. This court also takes into consideration the judgment passed by the Hon'ble Apex Court in the case of Golla Rajanna Etc. Etc. v. The Divisional Manager and Another, Etc. : CIVIL APPEAL NOS. 11114-11119 OF 2016 decided on 23.11.2016, wherein it has been held under:

"Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act "

Thus, this Court finds that the question no. (V) as suggested by the appellant is purely a question of fact and therefore need not be reappreciated by this Court. Furthermore, the Commissioner in its award dated 18.01.2012, has rightly observed that firstly, upon perusal of the evidence produced, the deceased was working under the employment of respondent no. 7 when he died; secondly, he being an occupant of the offending vehicle was covered by the said Insurance Policy (Exb.1) since the policy did not mention 'driver' anywhere and thus, the appellant was rightly held liable to pay compensation; thirdly, when the employee- employer relationship is established, the insurance company cannot be exonerated from its liability and lastly, the offending vehicle was used for agricultural policy only inasmuch as at the time of the accident, it was being used to carry bajri which was in turn being used for the construction of stable and storage facility under the directions of the employer, respodnent no. 3. Thus, this Court in the light of the judgment passed by the learned Apex (Downloaded on 23/08/2024 at 09:19:03 PM) [2024:RJ-JD:33188] (14 of 14) [CMA-673/2012] Court in the case of Golla Ranjan (supra.), finds that the questions suggested by the appellant require no further consideration.

21. Therefore, this Court observes that the contention raised by counsel for the appellant regarding perverse finding given by the Commissioner is not acceptable because the Commissioner considering the documentary and oral evidence available on record like the post-mortem report (Exb.2), Insurance Policy (Exb.1) as well as the deposition of NAW-1, Lalit Singh along with Prakash and Savra to establish the existence of the employee- employer relationship between the deceased and the respondent no. 7, the age of the deceased and the liability of the appellant insurance company. This Court also observes that the Commissioner has rightly awarded the compensation in light of express provisions and the judgments passed by the Hon'ble Apex Court and therefore, deems it fit not to grant indulgence in the present matter.

22. Accordingly and in view of above discussion, this Court finds no force in the instant appeal, the same is, therefore, dismissed. No costs.

(DR. NUPUR BHATI),J 39-/Devesh Thanvi/-

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Rajasthan High Court - Jodhpur