Himachal Pradesh High Court
United India Insurance Co. Ltd. vs Seema Devi And Ors. on 10 May, 2005
Equivalent citations: IV(2005)ACC39, 2006ACJ1357
Author: Deepak Gupta
Bench: Deepak Gupta
JUDGMENT Deepak Gupta, J.
1. This appeal under Section 30 of the Workmen's Compensation Act (hereinafter referred to as 'the W.C. Act') is directed against the award passed by the Commissioner, Workmen's Compensation, Nahan, District Sirmour in Case No. 2 of 1996, decided on 30.8.1997.
2. When this appeal was admitted on 27.4.1998 the substantial questions of law arising in the appeal were not framed in the appeal. Appellant insurance company has framed four substantial questions of law. In my view none of those questions of law are properly framed. The two questions of law which arise in this appeal are:
(1) Whether the appellant has proved on record that the driving licence of deceased driver, Gurnam Singh, was a fake driving licence?
(2) In case the first question is decided in favour of the insurance company, whether the dependants of a driver who holds a fake driving licence are entitled to get compensation under the W.C. Act?
3. The facts necessary for the decision of this case are that Gurnam Singh was a driver of truck No. HRO 5952 owned by respondent No. 6. Admittedly, Gurnam Singh died in an accident of the said truck on 7.8.1993 while on duty. Claimants who are the widow and minor sons and daughters of the deceased had filed an application for grant of compensation under the W.C. Act. In this claim it was alleged that the deceased was getting monthly wages of Rs. 1,550 plus expenses of Rs, 450, i.e., total amount of Rs. 2,000 per month. It was also alleged that since the owner had not paid the compensation in time, claimants were also entitled to penalty of 50 per cent. The owner did not file any reply and was proceeded ex parte. Insurance company filed reply and took the plea that the deceased did not have a valid driving licence. It was averred that the insurance company had got investigated the driving licence No. 713/9, dated 11.12.1973 allegedly issued by the District Transport Officer, Ropar in favour of the deceased. On investigation, it was found that licence was not a valid driving licence, but was a fake one. It was urged that the insurance company was not liable to pay any compensation. Petitioners in their rejoinder controverted these allegations. The Commissioner, Workmen's Compensation, framed the issues. One of the issues framed was: "Whether Gurnam Singh was having a valid driving licence".
4. Thereafter the evidence of the parties was recorded and Commissioner, Workmen's Compensation, awarded Rs. 53,824 as compensation to be paid by the insurance company and Rs. 15,765 to be paid as penalty by the owner. Simple interest at the rate of 6 per cent per annum was also ordered to be paid. This interest has to be paid by the insurance company. Hence this appeal.
5. Seema Devi, the petitioner, appeared as her own witness and stated that the deceased was getting a salary of Rs. 2,000 per month. She proved copy of the F.I.R., Exh. PW1A and copy of the post-mortem report, Exh. PW1B. She also proved the driving licence, Exh. PW1C. This driving licence purports to have been issued in the name of deceased Gurnam Singh by the Licensing Authority, Ropar on 11.12.1973 and permits him to drive a heavy transport vehicle also. This licence has been renewed from time to time by various licensing authorities. She also proved on record the notice sent to the owner for payment of compensation despite which the payment was not made.
6. Suresh Kumar, PW2, is the President, Gram Panchayat, Patroli. He has stated that Gurnam Singh died on 7.8.1993 and has stated that the claimants are the widow and children of the deceased.
7. Insurance company has examined two witnesses. Jagdish Narang, A.D.M. of the insurance company, RW 1, has proved the policy of insurance, Exh. RW1A. According to him the licence of the deceased driver, Exh. PW1C, was got investigated and report, Exh. RW1B, was given to show that Gurnam Singh did not have a valid driving licence. He has also produced the document, Exh. RW1C which is a copy of the statement of one Gurcharan Singh, clerk from the District Transport Office, Ropar, recorded in a motor accidents claims case arising out of the same accident.
8. Gurcharan Singh, RW 2, is clerk in the office of D.T.O., Ropar (Punjab). He states that he has brought the summoned record. He also states that he is posted as a licensing clerk in the office of D.T.O. since 1995. He states that he has brought the registers from the year 1973 to 1974. According to him the registers are maintained properly. As per this witness the driving licence, copy of which is Exh. PW1C, was not issued from their office as per record. He states that in fact licence No. 713 was issued in favour of one Gur-dev Singh, son of Ajaib Singh, village Badosi, Tehsil Sirhind on 20.3.1974 which was valid for motor cycle only. He further states that according to the record, on 2.3.1974 no driving licence had been issued from their office. He further states that according to the record in the year 1974 prefix 'G' was not being put in the driving licence. In cross-examination he admitted that in the register which he has brought the first three pages are torn. He also admits that there is no paging of the registers. He also admits that 5-6 pages of the register are empty, but volunteered that after closing the register, last 4-5 pages were kept empty. He states that register was maintained serialwise. The same serial numbers occur twice in the register. He explains this by saying that every year the serial numbers are started afresh from one. He has also admitted that in the middle of the register two pages have been kept blank. He has volunteered that after the completion of the year and before starting the new year, two pages were kept blank, but they have been scored across. He further states that the aforementioned register is both, the issue and renewal register for driving licences and there is no other register maintained in the office.
9. A perusal of the statement of this witness clearly shows that the original driving licence was not issued from the office of D.T.O., Ropar. The finding of the Commissioner, Workmen's Compensation that the insurance company has failed to prove that the driving licence was fake is not correct. He has relied upon Exh. RW1C that there were separate record of issuance of licence and separate register for renewal of licences. When witness Gurcharan Singh was in the witness-box, he was not confronted with the earlier statement made by him. Even the case-law relied by him is no longer good law. A fake licence will not become genuine by reason of it having been renewed.
10. The next question which arises is what is the effect of a fake licence. The claimants are the heirs of the deceased driver. The employer's liability under the W.C. Act arises under Section 3. The relevant portion of Section 3 reads as follows:
3. Employer's liability for compensation.--(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable--
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to-
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.
11. The compensation has to be assessed according to Section 4. The W.C. Act does not make it necessary for the employer to get insurance. The insurance is made compulsory in view of the provisions of Section 146 of the Motor Vehicles Act. The requirements of an insurance policy are mentioned in Section 147 of Motor Vehicles Act. Section 147 makes it incumbent upon the insurance company to indemnify the insured with respect to the employees insofar as liability under the W.C. Act is concerned.
12. Mr. Deepak Bhasin, learned Counsel appearing on behalf of appellant, states that if an employee obtains employment on the basis of a fake driving licence, then in case of injury, it would be inequitable and unjust to permit him to get compensation. He further submits that in this case since the employee has died, the claimants who are his heirs, should not be granted any compensation since the deceased was not having a valid driving licence.
13. On the other hand, Mr. Negi, Court Guardian and Mr. Bimal Gupta, learned Counsel, have submitted that the liability under the W.C. Act is absolute. According to them the insurance company cannot raise the plea that the deceased workman had no valid driving licence. They further submit that the W.C. Act is a socially beneficial piece of legislation and should be interpreted in favour of the workman. Various judgments have been cited by both sides.
14. Karnataka High Court in Oriental Insurance Co. Ltd. v. Hazira Begum , has held as follows:
(9) A scan of various decisions of the High Court will disclose that where a workman was engaged in the employer's business and who was doing the very thing he was employed to do, then the mere fact that he was not acting strictly by the letter of law will not make the accident any the less 'arising out of and in the course of employment'. It follows, therefore, the owner and insurance company are both liable in such an event.
(10) Hence, the contention of the insurance company that it is not bound to pay the amount awarded cannot be sustained. The compensation under the Act is paid to the worker and the genesis of the claim, as stated earlier, is the existence of employer-employee relationship. The award made is not to the 'driver' of the vehicle but to the worker of the employer as defined under Section 2(1)(n) of the Act. That apart, all that the relevant clause in the insurance policy requires is that the person driving the vehicle should have a valid driving licence. That the deceased admittedly had. If so, it is settled principle that the terms of the contract of policy being the language of the company must be construed contra proferentum. Hence, unless there are clear terms in the contract of insurance excluding its liability, it is not open to this Court to accept the plea of the insurance company by a process of judicial interpretation of the provisions of the Motor Vehicles Act.
15. A Division Bench of Madhya Pradesh High Court in Chhote Khan v. Rajesh Kumar Agrawal , took a different view and held as follows:
(2) When the deceased had himself endangered his safety and life by inviting unnecessary calamity, by unnecessary adventure, by engaging in driving of that vehicle, when he was not having a valid licence, neither the employer nor the insurance company can be asked to pay compensation to the heirs-claimants of such deceased. It is expected that every citizen should behave in such way which would not endanger his safety of life. Public authorities or persons who have committed no wrong, cannot be compelled to pay compensation to legal heirs-claimants of such reckless and adventurous persons.
16. A single Judge of Orissa High Court in Divisional Manager, National Insurance Co. Ltd. v. Rabi Sahoo 2001 ACJ 538 (Orissa), was concerned with a case where the driver did not have a valid driving licence to drive a tractor. The heirs of the driver filed a claim petition. The insurance company took up the plea that since the deceased did not have a valid driving licence the insurance company cannot be made liable. This plea was accepted and it was held that the insurance company is not liable to pay compensation.
17. The High Court of Gauhati in Anil Chandra Sharma v. Alka Rani Ghosh 2000 ACJ 307 (Gauhati), has held that both the provisions of the W.C. Act and Motor Vehicles Act should be read together and, therefore, the insurance company is liable.
18. In Oriental Insurance Co. Ltd. v. Jimmy , Kerala High Court has held as under:
(3) The employer and employee relationship cannot be disputed by the appellant. The accident also is not disputed. In such circumstances, whether the workman did have a proper licence or not, whether he is a wireman, a boiler operator or driver as the case may be, is not a matter for the concern of the insurer. When the insurer had undertaken the liability which had fallen upon the insured, necessarily the insurer has to discharge that burden. If there is violation of the policy conditions, the insurer can seek appropriate remedy.
19. High Court of Orissa in Oriental Insurance Co. Ltd. v. Rajani Parida , has held as under:
(10) In the instant case though the appellant took a specific plea in the written statement that the deceased driver had no valid driving licence, from the impugned judgment it would be seen that in spite of an opportunity being given to the insurer it has not discharged the said onus which lay heavily on it to establish that there has been a wilful breach of the policy condition on the part of the insured. I, therefore, hold that absence of an endorsement in the licence to drive a transport vehicle in the instant case, does not amount to breach of any of the policy conditions and the appellant on that ground is not absolved from its liability to pay the awarded amount.
20. This is the entire law on this point which has been placed before me. There can be no manner of doubt that the W.C. Act is a legislation meant to ameliorate the suffering of the workman and the heirs of a deceased workman. If two interpretations of a provision are possible, then the interpretation which benefits the workman or his heirs should be preferred. Section 3 which has been quoted above makes the employer absolutely liable to pay the compensation in case an employee dies in an accident arising out of and in the course of employment. The W.C. Act does not provide any exception except those in the proviso. The negligence of a workman is no defence.
21. However, the legislature in proviso to Section 3(1) of W.C. Act has exempted the employer in certain cases. The most important factor to be noted is that this exemption is not applicable in the case of death or permanent total disablement, but only in cases of injury. In cases of injury, if the employer proves that workman was under the influence of drink or drugs or that he had wilfully disobeyed any express order or specific rule with regard to securing the safety of the workman or the workman has wilfully removed or disregarded any safety guard or other devices which he knew were provided for the purpose of securing the safety of a workman, then the employer can avoid his liability. However, even in such cases the employer is liable to pay compensation in case death or permanent disablement results from the injury. The intention of the legislature is thus very clear. In cases of death or permanent total disablement even if the employee has wilfully disregarded the safety aspects then also the employer would be liable.
22. The W.C. Act does not deal with the question raised in the present appeal. There is nothing in the Act to show whether an employer is liable in case the employee has taken employment on the basis of a forged or fake document, like the driving licence in the present case. The employer when he gave the employment had no reason to believe that the licence produced before him was a fake one. The contention raised on behalf of the insurance company is that no person can derive benefit from his own fraudulent act. The driver of the vehicle obtained the employment on the basis of the fake licence. This violates the provisions of the law, especially Motor Vehicles Act. It is a criminal offence.
23. Mr. Bhasin submits that in case such a person is granted compensation, it would amount to giving a premium for his illegal activities. On the other hand, it has been contended by Mr. Bimal Gupta and Mr. B.C. Negi, Advocates, that even if it be presumed that there was some fault on the part of the deceased, why should his minor children or his widow suffer. It is also contended that the principles of Motor Vehicles Act should also be applied to the W.C. Act and the liability of the insurance company should be made absolute.
24. So far as applying the principle of Motor Vehicles Act is concerned, I am not in agreement with this contention. I also respectfully disagree with the judgment of Orissa High Court in Oriental Insurance Co. Ltd. v. Rajani Panda . The two Acts are entirely different Acts. The Motor Vehicles Act only provides that any insurance policy issued under the Act (in common parlance known as an 'Act policy') must cover the liability under the W.C. Act to the employees employed on the vehicle. However, the rights and the procedure shall be governed under the W.C. Act and not under the Motor Vehicles Act. In this regard reference may be made to a judgment of Apex Court in National Insurance Co. Ltd. v. Prembai Patel 2005 ACJ 1323 (SC), wherein it has been held as follows:
(12) ...The effect of this provision is that an insurance policy, which covers only the liability arising under the Workmen's Compensation Act in respect of death of or bodily injury to any such employee as described in Sub-clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) of the Act is perfectly valid and permissible under the Act. Therefore, where any such policy has been taken by the owner of the vehicle, the liability of the insurance company will be confined to that arising under the Workmen's Compensation Act.
25. In my opinion, the insurance company can raise all defences available to it in claims under the W.C. Act. It cannot be argued that insurance company is restricted to raise only those defences available to it under Section 149 of Motor Vehicles Act. Therefore, it can raise question whether the employee had a licence or not. However, the insurance company has agreed to indemnify the employer for his liability under the W.C. Act and if the employer is liable then the insurance company has to be held liable unless it can show that there has been breach of the policy on behalf of the insured. This view is in consonance with the judgment of the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh . Though that was a case under the Motor Vehicles Act, the general principle of law laid down is that it is for the insurer to prove that the insured has breached the policy.
26. Taking a cue from Section 3 quoted supra it is my considered view that when an employee dies or suffers permanent total disablement in an accident arising out of and in the course of his employment, then the fact that such employee had obtained employment on the basis of false qualification would not be a defence open to the employer and consequently the insurance company. However, in case the employee only suffers injury which does not disable him permanently, then the employer can take up a defence that the employee has obtained employment on the basis of false qualifications and, therefore, wilfully disregarded the law and in such an eventuality the employer and the insurance company may not be liable. This is in consonance with the intention of the legislature that when a person dies or suffers permanent disablement then it is not only he who suffers, but his dependants suffer with him. In the case of other injuries the employee alone suffers and, therefore, he has not been given the benefit. The intention appears to be that the dependants of the employee should not be denied compensation.
27. In the present case, there is nothing to show that the employer knew that the licence in question was fake. Ostensibly on the face of it, the driving licence appears to be valid. When the owner of a vehicle employs a driver he is only expected to see the driving licence. He is not expected to go to the registration and licensing authority to verify the genuineness of the licence. In the present case also, there is no breach on the part of the owner. No doubt, it is true that in the present case the deceased himself endangered his safety and life by inviting unnecessary calamity by engaging in driving of vehicles when he knew that he did not have a valid driving licence. In view of the provisions of proviso (b) to Section 3(1) of the Act, when a workman dies or is permanently disabled then even if it is proved that he acted recklessly or endangered his life by illegal means would, in my humble opinion, not be a defence open to the employer and consequently the insurance company. In case the employee only receives injuries, this would be a valid defence.
28. In view of the above discussion, I answer the two substantial questions of law raised herein as follows:
(1) The insurance company has proved on record that the driving licence issued in favour of driver Gurnam Singh, was a fake driving licence.
(2) The employer and consequently the insurance company is liable to pay the compensation to the dependants of the deceased, even if it is proved that the driver had a fake driving licence.
29. The appeal of the insurance company is, therefore, dismissed with no order as to costs.