Gauhati High Court
Sri Uttam Kr. Saha vs Md. Ayub Ali & Anr on 23 February, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MFA No. 56 of 2009
SRI UTTAM KR. SAHA .....Petitioner
Vs.
MD. AYUB ALI & ANR. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioner : Mrs. B. Choudhury, Ms. B.S. Gogoi Advocates for the Respondent: None appears Date of hearing : 23.02.2017 Date of judgment and order : 23.02.2017 JUDGMENT AND ORDER (Oral)
1) Heard Mrs. B. Choudhury, learned counsel appearing for the appellant. None appears on call for the respondent although name is shown in the cause list even on an earlier occasion on 09.02.2017 although the learned counsel for the appellant was present but no one has appeared for the respondent. As the matter is taken up for hearing even in the absence of the learned counsel for the respondent.
MFA No. 56 of 2009 Page 1 of 52) By filing this appeal under Section 30(1) of the Workmen's Compensation Act, 1923 (now Employees' Comensation Act, 1923), the appellant has challenged the judgment and award dated 26.02.2009 passed by the learned Commissioner, Workmen's Compensation, Darrang at Mangaldai in W.C. Case No. 2/2002, awarding a sum of Rs. 25000/- as compensation to respondent No. 1, namely, Md. Ayub Ali.
3) The appellant herein is the owner of a bus bearing Registration No. AS/13/1521. It is submitted that the said vehicle was duly insured with the respondent No. 2 and the insurance was valid for the period of 25.05.2002 to 25.05.2003. While the vehicle was on army duty, it met with an accident on 14.07.2002 due to some mechanical problem with the steering, which suddenly failed, for which the vehicle fell into a pond near Kamalpur. As a result of the accident, the respondent No. 1, who was the driver of the said bus had sustained injuries. The respondent No. 1 had filed a compensation claim before the learned Commissioner, Workmen's Compensation, Darrang at Mangaldai. The said case was registered as W.C. Case No. 2/2002.
4) The respondent No. 1 examined himself as PW. 1 and as per the evidence recorded by the learned Commissioner, Workmen's Compensation, PW. 1 had exhibited prescriptions, certificate, vouchers and copy of the driving license, which was marked as exhibit No. 1 to 30. On perusal of the copy of the driving license available in page 92 to 94 of the trial court record, it appears that the said driving license was issued in the name of respondent No. 1 bearing license No. T/839/DTM/04 dated 16.12.1994 which was renewed up to 23.08.2007. As per the impugned order dated 26.02.2009, it is mentioned herein that on 21.07.2008 the PW. 1 Md. Ayub Ali examined himself, keeping the cross-examination MFA No. 56 of 2009 Page 2 of 5 reserved, but the insurer/opposite party i.e. respondent No. 2 herein did not turn up for cross-examination of PW. 1. Thereafter, the matter was heard and the learned Commissioner, Workmen's Compensation, Darrang at Mangaldai awarded a sum of Rs. 25000/- (Twenty Five Thousand only) towards compensation to the respondent No. 1, directing the appellant to pay the compensation to the victim.
5) While in the present case in hand, the driver/respondent No. 1 was holding a valid driving license, the learned counsel for the appellant by placing reliance on the case of Pepsu Road Transport Corporation vs. National Insurance Company, reported in (2013) 10 SSC 217, submits that in the said case, the insurance company was made liable indemnify the owner of the vehicle despite the driving license was found to be fake. She submits that in the present case although the PW. 1 had duly proved that he was driving the vehicle of the appellant on the strength on a valid license, the learned Commissioner, Workmen's Compensation, Darrang at Mangaldai had committed an error by directing the appellant to pay the compensation. The learned Tribunal did not consider that the appellant was duly indemnified by holding a valid insurance policy, the correctness of which was not disputed even till date. This appeal was admitted for hearing on the following two substantial questions of law:
1) Whether the learned Commissioner of Workmen's Compensation Tribunal committed an error of law in saddling with the appellant the burden of paying the entire compensation amount to the injured workmen while a valid insurance policy was in vogue.
2) Whether the Commissioner adjudicating a claim for compensation under Workmen's Compensation Act MFA No. 56 of 2009 Page 3 of 5 can legally bypass the fact of admission of the Insurer Company itself about the valid policy of the Insured/employer at the relevant time?
It is seen that the appellant had submitted his written statement before the learned Commissioner, Workmen's Compensation, Darrang at Mangaldai wherein he has disclosed that he was holding a valid insurance policy from the National Insurance Company Limited bearing policy No. 200112/31/02/63/11582 which was valid from 25.05.2002 to 24.05.2003, which was a comprehensive insurance policy and along with the written statement of photo copy of the said insurance policy was also submitted before the learned Commissioner, Workmen's Compensation, Darrang at Mangaldai. The respondent No. 2 i.e. the Insurer did not contest the same or disputed its correctness.
7) This Court is of the view that as by the evidence of PW. 1, it is duly proved that he had held a valid driving license while driving the vehicle on the date of accident, the first substantial question of law is answered in the negative and in favour of the appellant by holding that in view of the valid insurance policy held by the appellant, bearing policy No. 200112/31/02/63/11582, the respondent No. 2 is required to indemnify the appellant to the extent of the award passed by the learned Commissioner, Workmen's Compensation, Darrang at Mangaldai. In view of the decision on the above first substantial question of law, the second substantial question of law is also decided in the negative and in favour of the appellant by holding that as there is no dispute with regard to existence of a valid insurance policy held by the appellant in respect of his vehicle, the learned Commissioner was required to take cognizance of the same.
8) This court has held that the appellant had duly disclosed the existence of a valid insurance policy along with his written MFA No. 56 of 2009 Page 4 of 5 statement. Therefore, the liability of award is required to be shifted from the appellant to the respondent No. 2 i.e. insurer. This Court is of the view that it is fit case for modifying the award by directing the respondent No. 2 to pay the compensation to the victim i.e. respondent No. 1 in respect of the awarded sum of Rs. 25000/-, which was ordered to be paid as compensation by the learned Commissioner, Workmen's Compensation, Darrang at Mangaldai. The said amount shall be paid within a period of 6(six) weeks from the date of receipt of the certified copy of this order.
9) As this Court finds that victim i.e. respondent No. 1 has not contested the matter it is presumed that he was also not aware that he became entitled to receive his compensation from the respondent No. 2 in terms of the order passed by this Court. Hence the appellant is directed to serve a notice about the order passed today in this appeal to the respondent No. 1 at the last known address within a period of 7(seven) days from today and file a copy thereof before the jurisdictional Commissioner, Employees'/Workmen's Compensation, Darrang at Mangaldai along with a certified copy of this order and on receipt of the same, the learned Commissioner, Employees'/Workmen's Compensation, Darrang at Mangaldai shall do the needful in terms of the order passed by this Court.
10) The appeal stands disposed of to the extent of modification stated above.
Return back the LCR immediately.
JUDGE Mkumar MFA No. 56 of 2009 Page 5 of 5