Himachal Pradesh High Court
United India Insurance Company Ltd vs Prakasho Devi & Others on 27 June, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO (WCA) No. 86 of 2009.
Decided on: 27th June, 2016 .
United India Insurance Company Ltd. .......appellant.
Versus Prakasho Devi & Others .......Respondents.
Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
of Whether approved for reporting?1Yes.
For the appellant : Dr. Lalit K. Sharma, Advocate.
For the Respondents rt : Mr. Ajay Sharma, Advocate for respondent No.1.
Mr. Amit Jamwal, Advocate for respondents No.2 and 3.
Dharam Chand Chaudhary, J. (oral).
The Insurer, United India Insurance Company, is in second appeal before this Court. The Company is aggrieved with the order passed by learned Commissioner under Workmen's Compensation Act, Hamirpur on 15.12.2008 in case No.01/2003 allowing thereby the petition filed for 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:41:25 :::HCHP 2award of compensation by respondent No.1 (hereinafter referred to as the 'petitioner') and awarded her the compensation to the tune of .
`2,85,973/- against the appellant-insurer (hereinafter referred to as 'respondent No.2').
2. Rakesh Kumar son of the petitioner was employed as driver with tractor No.HP 22-6983 of belonging to respondents No.1 and 3. The tractor met with an accident on 23.3.2002 near Pratap Nagar, rt Hamirpur. Its driver Rakesh Kumar was driving the tractor at the relevant time. He died on the spot.
3. The petitioner has claimed the compensation amounting to `5,00,000/- on account of the loss she sustained due to the death of her son in the accident. She has claimed his age at the relevant time 30 years and the wages `2000-`2500 per month.
4. In reply, the insured, respondents No.1 and 3 have not denied the factum of deceased Rakesh Kumar was employed as driver by them with ill-fated ::: Downloaded on - 15/04/2017 20:41:25 :::HCHP 3 tractor. They admit the wages of the deceased as `2000/- per month. It is also their stand that the deceased was having a valid and effective driving .
licence when employed as driver and at the time of accident. The ill-fated tractor, according to them, was insured with respondent No.2. At the time of its accident sand was being transported therein.
of
5. The insurer-respondent No.2 has not disputed the insurance of the tractor with it, however, rt in preliminary, the following submissions were made:-
"A That the Driver/deceased was not having valid Driving License to drive the impugned tractor at the time of accident B. That the tractor being plied against the insurance contract, hence the insurance company is not liable.
C. That in case the Court comes to the conclusion that Prakasho Devi is entitled for the compensation the replying respondent can not be ::: Downloaded on - 15/04/2017 20:41:25 :::HCHP 4 ordered to deposit either interest or penalty."
6. It is also denied that the wages of the .
deceased was `2500/- per month.
7. On the pleadings of the parties, the following issues were framed:-
"1. Whether the applicant is a workman of within the meaning of the Act?
OPP rt 2. Whether the accident arose out of or in the course of the deceased Employment? OPP
3. Whether the opposite party is liable to pay such compensation as is due?
OPR
4. Whether the driver is not having any valid or effective driving licence, as alleged? OPR
5. Relief
8. The petitioner has herself stepped into the witness box as PW-1 and also examined Shri Jiwan Lal in support of her case. Respondent No.1 has also ::: Downloaded on - 15/04/2017 20:41:25 :::HCHP 5 stepped into the witness box as RW-1 and Shri Rattan Singh, respondent No.3 as RW-2.
9. Learned Commissioner on appreciation of .
the evidence available on record has assessed the compensation payable to the petitioner as `2,85,973/-
however, declined the interest. Taking into consideration, the submissions made on behalf of the of insurer-respondent No.2, that the claims could not be settled within time on account of the petitioner and rt respondents No.1 and 3 failed to produce the driving licence and source of issuance of driving licence to them.
10. Since it is the insurer, who has been held liable to pay the compensation to the petitioner, hence this appeal on the ground inter alia that neither the deceased was having a valid and effective driving licence at the time of the accident nor the tractor was being used for agriculture purposes at the relevant time and as such there being breach of ::: Downloaded on - 15/04/2017 20:41:25 :::HCHP 6 conditions of the insurance policy Ex.RX, no compensation could have been awarded to the petitioner against the respondent-insurer.
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11. On hearing Dr. Lalit Sharma, Advocate learned counsel for the respondent-appellant and Shri Ajay Sharma, Advocate for claimant respondent No.1 whereas Shri Amit Jamwal, Advocate for respondents of No.2 and 3 and appreciating the evidence available on record, admittedly the tractor has met with an rt accident near Pratap Nagar at Hamirpur on 25.3.2002.
The tractor fell into a muddy and slushy rivulet (Nallah), as a result thereof, the person on its wheel namely Rakesh Kumar, the son of the petitioner, has died on the spot itself. The perusal of the FIR Ex.PW-
2/A reveals that sand was being carried into the tractor at the time of accident. The driving licence of course has not been produced in evidence by the petitioner, however, not only she, but the owner RW-1 and RW-2 have stated, while in the witness box, that ::: Downloaded on - 15/04/2017 20:41:25 :::HCHP 7 the deceased was holding a valid and effective driving licence, however, since the tractor fell into a muddy and slushy rivulet, therefore, its documents i.e. .
Registration Certificate and driving licence of the deceased could not be traced out. They all have stated in one voice that the licence was issued by a Licencing Authority at Delhi to the accused. RW-1 has of further stated that when the deceased was employed as driver with the tractor he had an opportunity to see rt his driving licence, which, according to him, was issued by some Licencing Authority at Delhi and was valid and effective. The petitioner and the ensured respondents No.1 and 3 have, therefore, satisfactorily proved that the deceased though was having a valid and effective driving licence, however, the same could not be traced out, in view of the documents of the tractor and the same submerged in the slushy and muddy rivulet. They by producing such evidence had shifted the onus to prove otherwise on the ::: Downloaded on - 15/04/2017 20:41:25 :::HCHP 8 respondent-insurer. It was for the respondent-insurer to have inquired into through its evaluator from the office(s) of Licencing Authority situate at Delhi as to .
whether the driving Licence was issued to deceased Rakesh Kumar or not. However, no such effort has been made and as such it would not be improper to conclude that the deceased driver of the tractor was of having a valid and effective driving licence at the time of accident.
rt
12. Now if coming to the question that the tractor was being used for the purpose other than agricultural, no doubt, the FIR reveals that sand was being carried in the trolley of the tractor at the time of accident. There is, however, no evidence that the sand was being transported for commercial purposes.
A specific suggestion made to RW-2 Rattan Chand in this regard on behalf of the insurer-respondent No.2, has been denied by the said witness being wrong.
Merely that the sand was being transported in the ::: Downloaded on - 15/04/2017 20:41:25 :::HCHP 9 trolley of the ill-fated tractor is not enough to arrive at a conclusion that the same was being plied for commercial purposes for the reasons that the sand .
sometime is required to carry out agricultural operation also such as construction of tube well, tunnel, underground tank etc. etc.
13. The apex Court in Fahim Ahmad vs. United of India Insurance Company Ltd., 2014 ACJ 1254, a case having more or less similar facts has held that without rt there being any proof that the sand was being transported in the ill-fated tractor for commercial purpose, there is no question of breach of the insurance policy.
14. Therefore, in view of what has been said hereinabove, I find no merits in this appeal and the same is accordingly dismissed. Pending application(s) if any shall also stand disposed of.
June 27, 2016 (Dharam Chand Chaudhary),
(ps) Judge.
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