Orissa High Court
Divisional Manager, New India ... vs Pravati Kar And Anr. on 29 August, 2002
Equivalent citations: 2003ACJ2021
JUDGMENT Choudhury Pratap Keshari Misra, J.
1. This appeal is directed against the judgment and order dated 25.10.1999 passed by the Commissioner for Workmen's Compensation, Cuttack, in W.C. Case No. 424-D of 1997. By the impugned order, the Commissioner has awarded a sum of Rs. 1,90,611 under the provisions of the Workmen's Compensation Act in favour of the claimant and has directed the insurance company to deposit the amount of compensation within 30 days from the date of award.
2. The case of the claimant-respondent No. 1 is that her husband late Umesh Chandra Kar was working as a driver of Trekker bearing registration No. OR 05-B 0435 belonging to Narahari Mishra (respondent No. 2 herein and the opposite party No. 1 before the Commissioner). On 11.12.1997 at about 10 a.m., while the deceased was performing his duty as driver of Trekker, the same met with an accident, as a result of which he sustained injuries on his person and was shifted to the S.C.B. Medical College Hospital, Cuttack, where he was declared dead. According to the claimant, the accident took place in course of and arising out of the employment of her husband. At the time of the accident, the deceased was 23 years of age and was earning Rs. 2,400 per month as wages. With these pleadings, she filed the claim petition claiming total compensation of Rs. 2,00,000 from the owner as well as the insurer of the vehicle.
3. The owner of the vehicle, opposite party No. 1, respondent No. 2, filed written statement admitting the accident, the employment of the deceased under him and the accidental death of the deceased. He, however, disputed the age of the deceased as well as his monthly wages. According to him, the deceased was getting Rs. 2,000 per month as wages.
4. The insurance company, the appellant opposite party No. 2, also filed written statement denying all allegations made in the claim petition and called upon the claimant to prove the same by producing documents.
5. On the above pleadings of the parties, the Commissioner framed four issues, namely:
(1) Whether the deceased is a workman within the meaning of Workmen's Compensation Act?
(2) Whether the accident arose out of and in the course of his employment?
(3) Whether the amount of compensation claimed is due or any part thereof?
(4) Whether the opposite parties are liable to pay the compensation, if yes, by whom payable?
6. The Commissioner, after considering the evidence of witnesses and the documents filed, held that the deceased was a workman within the meaning of the Workmen's Compensation Act. He also held that the accident arose out of and in the course of employment of the deceased. As regards the quantum of compensation, the Commissioner had calculated the same at Rs. 1,90,611. Since the vehicle in question was under valid insurance covering the date of accident, the Commissioner held that the insurance company is liable to pay the compensation.
7. It is urged on behalf of the appellant that the offending Trekker was registered as a transport vehicle, which the deceased was not authorised to drive as he held a licence to drive a light motor vehicle. As such, there is a breach of the terms and conditions of the insurance policy, and the insurance company is not liable to indemnify the owner. This fact was also brought to the notice of the Commissioner, but without considering the same, he has passed the award and has made the insurance company liable to pay the amount thereof.
8. The Commissioner, while answering issue No. 4, has concluded that the vehicle in question is a light motor vehicle, and in the driving licence, the deceased is authorised to drive a light motor vehicle. Therefore, he rejected the objection raised by the insurance company.
9. There is no dispute that the vehicle in question is a Trekker, i.e., a light motor vehicle, as its laden weight is 2010 kg. Further, the vehicle has been registered as a transport vehicle. As per the driving licence of the deceased, which was issued in Form 6, he was authorised to drive a light motor vehicle. According to the learned Counsel for appellant, since the deceased was not authorised to drive a transport vehicle, there has been breach of the terms of the insurance, and so the insurance company is not liable to pay the compensation. In this connection, he relies on a decision of this Court in National Insurance Co. Ltd. v. Raisa Bibi 2000 ACJ 600 (Orissa), wherein it has been held (at p. 603 para 8):
A combined reading of the relevant provisions of the Act, particularly, Sections 3 and 10 of the Motor Vehicles Act, leave no room for doubt that unless a person is authorised to drive a transport vehicle, he cannot drive such a vehicle even though he may be authorised to drive that particular kind of vehicle. For example, a person may be authorised to drive a light motor vehicle and if such light motor vehicle is used for carrying passengers for hire, it becomes a public service vehicle and hence a transport vehicle, as defined in Section 2(47) of the Act. While driving such a transport vehicle, the driver may possess licence to drive light motor vehicle, but if the licence does not authorise him to drive a transport vehicle (which may be even a light motor vehicle), he would not be so authorised to drive the vehicle when used as transport vehicle....
Basing on the aforesaid judgment, learned Counsel for the appellant contends that the Commissioner was not correct to saddle the liability with the insurance company.
10. On behalf of claimant-respondent No. 1, reliance has been placed on the judgment of the Supreme Court in the case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. 2000 ACJ 319 (SC). In that case, after analysing different provisions of Motor Vehicles Act, particularly Section 2(21), the Supreme Court held as follows (p. 323 para 10):
Definition of 'light motor vehicle' as given in Clause (21) of Section 2 of the Act can apply only to a 'light goods vehicle' or a light transport vehicle'. A 'light motor vehicle' otherwise has to be covered by the definition of 'motor vehicle' or 'vehicle' as given in Clause (28) of Section 2 of the Act. A light motor vehicle cannot always mean a light goods carriage. Light motor vehicle can be non-transport vehicle as well.
11. After considering the evidence and other materials on record, I have no hesitation to hold that the present case is covered by the aforesaid decision of the Supreme Court. Admittedly, Trekker in question is a light motor vehicle since its unladen weight does not exceed 7500 kg. and the deceased driver was authorised to drive such a vehicle. There is nothing on record that at the time of accident, the vehicle was engaged in transport of goods so as to attract the provisions of Section 66 of the Act. Under the circumstances, I am of the opinion that the Commissioner was correct in rejecting the contention of the insurance company. It may be mentioned here that in the decision cited on behalf of the appellant, the dispute before this Court was with regard to wearing of a badge by the driver, and this Court held that issuance of a badge to a driver is not a condition precedent authorising him to drive a transport vehicle as there is nothing in the Act or Rules framed by the Central Government to that effect. Therefore, the decision is quite distinguishable.
12. For the reasons stated above, the appeal has no merit and is accordingly dismissed.