Madras High Court
National Insurance Company Limited vs Ammu on 12 March, 2015
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12.03.2015 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.209 of 2015 and M.P.(MD) No.1 of 2015 National Insurance Company Limited Nagercoil. ... Appellant Vs. 1.Ammu 2.P.Krishnan ... Respondents Prayer Appeal filed under Section 30 of the Workmen's compensation Act, 1923, against the order dated 30.12.2011 passed in W.C.No.31 of 2008 on the file of the Commissioner for Workmen Compensation (Deputy Commissioner of Labour), Tirunelveli. !For Appellant : Mr.J.S.Murali ^For Respondents : Mr.P.Thiagarjan :JUDGMENT
The appellant is the insurance company. The first respondent herein in the mother of the deceased, who died in a road accident on 09.08.2007, while he was driving the lorry owned by the second respondent herein. At the time of accident, the deceased was 25 years. He was not married. The first respondent, who is the mother of the deceased filed W.C.No.31 of 2008 under Workmen Compensation Act, before the Deputy Commissioner of Labour, Tirunelveli for compensation due to the death of her son during the course and arising out of the employment with the second respondent herein.
2.The claim was contested by the appellant on the ground that the second respondent herein is the first son of the first respondent herein and the lorry, which involved in the accident was jointly owned by the deceased and the second respondent herein and they are brothers and they lived with their mother and there is no employer ? employee relationship between the deceased and the second respondent.
3.The appellant insurance company also took a plea that the axis of the front right wheel cut off and the same resulted in the accident and the driver lost his life. According to the insurance company, the accident was due to the poor maintenance of the vehicle and therefore, the front right wheel cut off from the vehicle and therefore, the insurance company is not liable to pay and it was solely due to the negligence on the part of the driver of the vehicle which was in a bad condition and hence, the negligence could be attributable to the deceased for the accident and the death. It was the case of the insurance company that the deceased did not posses proper license.
4.Before the Deputy Commissioner of Labour, the claimant was examined and Exs.P1 to P7 were marked. On the side of the appellant insurance company, the Assistant Manager of the insurance company was examined and Exs.R1 and R2 were marked.
5.After hearing both sides, the Commissioner rejected the contention of the insurance company and held that the lorry was owned by the second respondent and the accident took place, when the deceased worked under the second respondent and hence the appellant insurance company is liable to pay as per the policy conditions. The appellant was directed to pay Rs.4,33,820/- as compensation. The said amount was deposited since the same is a condition to prefer appeal under Section 30 of the Workmen Compensation Act and thereafter, the appeal is filed by the insurance company.
6.Heard both sides.
7.The learned counsel for the insurance company has vehemently contended reiterating the points that were taken up in the counter statement that was filed in W.C.No.31 of 2008.
8.The learned counsel for the claimants has submitted that the Commissioner for workmen compensation have given cogent reasons for his conclusions and held that the insurance company failed to prove that the lorry was jointly owned by the deceased and the second respondent and there is no employee-employer relationship between the deceased and the second respondent. He also brought to my notice that the Commissioner has categorically held that there was no bar for the brother being employed in the lorry owned by his brother. The learned counsel has further submitted that there is no question of negligence would arise in the case of the death and the plea relating to negligence would arise only in a case of injuries under the workmen compensation Act. The learned counsel has also submitted that the appellant insurance company failed to prove that the deceased did not possess proper license and they have failed to summon the RTO to prove about their version that the deceased did not posses valid licence.
9.When the appellant insurance company took a plea that the deceased was also the joint owner of the lorry, his incumbent on its part is to establish the same . But, they miserably failed to establish the same as held by the Commissioner in the following words. The relevant portion in para 10 of the award is extracted herein as follows:
?ne;j tHf;fpy; tpgj;jpw;Fs;shd thfdk; kDjhuUf;F 1tJ vjph;kDjhuUf;F kw;Wk; nwe;jtUf;F ghj;jpag;gl;l bghJr; brhj;J vd;gij epUgpf;f jFe;j rhl;rpfs; 2tJ vjph;kDjhh; jug;gpy; M$h;gLj;jg;gltpy;iy. BkYk; ne;j tHf;fpy; vf;!;.gp 6 Mf ghyprp efy; (1tJ vjph;kDjhh; thfdj;jpw;FhpaJ) kDjhh; jug;gpy; jhf;fy; bra;ag;gl;Ls;sJ. mJBghy; 2tJ vjph;kDjhh; jug;gpYk; Bkw;go thfdj;jpw;Fhpa ghyprp efy; jhf;fy; bra;ag;gl;Ls;sJ. nij ghh;f;Fk; BghJ Bkw;go tpgj;jpw;Fs;shd TN 25 B 5529 vd;w thfdj;jpw;F ghyprp jpU.gp.fpU&;zd; vd;gtUf;F (1tJ vjph;kDjhh;) tHA;fg;gl;Ls;sJ vd;gij mwpa KofpwJ. vdBt tpgj;jpw;Fs;shd thfdj;jpd; chpikahsh; 1tJ vjph;kDjhh; kl;LBk vd;gjpy; re;Bjfkpy;iy.?
10.The Commissioner has categorically held that there was no evidence adduced by the insurance company to establish that the deceased was the joint owner of the lorry and on the other hand, the policy that was issued by the insurance company to the second respondent herein would establish that he was the owner of the lorry. I do not find any infirmity with the same. If it is held that the second respondent is the owner of the lorry, then there is no impediment for the deceased to get employed in his brother's lorry as a driver. In fact, the learned Commissioner has already held that there is no impediment for a person getting employed in the establishment owned by his brother. The following passage in the same para 10 is extracted in this regard.
?BkYk; 2tJ vjph;kDjhh; jug;gpy; jhf;fy; bra;gg;gl;l cr;rePjpkd;w jPh;g;g[ kw;Wk; cah;ePjpkd;w jPh;g;g[fspy; fzth;-kidtp vd;w cwt[ tUk; Beh;tpy;, mth;fs; Kjyhsp-bjhHpyhspahf tu KoahJ vd Twg;gl;Ls;sJ. ne;j tHf;fpy; nwe;jtUk; - 1tJ vjph;kDjhUk; rBfhjuh;fBs jtpu fzth;-kidtp fpilahJ. rBfhjuh;fSf;fpilBa Btiy bra;a[k; BghJ Kjyhsp-bjhHpyhsp cwt[ Kiw tUk; vd;gjpy; re;Bjfk; fpilahJ. vdBt 2tJ vjph;kDjhh; jug;gpy; jhf;fy; bra;ag;gl;l jPh;g;g[fs; nt;tHf;fpw;F bghUe;jhJ. kw;Wk; 2tJ vjph;kDjhuUila thjkhd nwe;jtUf;Fk; - 1tJ vjph;kDjhuUf;FkpilBa rBfhjuh; cwBt jtpu Kjyhsp - bjhHpyhsp fpilahJ vd;w thjk; epuhfhpf;fg;gLfpwJ.?
11.Therefore, the learned Commissioner has categorically held that the relationship between the deceased and the second respondent herein is only as employee-employer relationship and hence, I do not find any infirmity in such a finding.
12.The second contention of the learned counsel for the appellant is that the vehicle was not maintained properly and had it been maintained properly, the accident could not have occurred. Hence, according to the learned counsel for the appellant negligence shall be attributable to the deceased driver for driving such a vehicle and therefore, it amount to violation of policy condition.
13.Just because the front wheel axis cut off from the vehicle, it could not be inferred that it was due to the poor maintenance of the vehicle. No endeavour was made by the insurance company to examine any mechanic to establish that the accident was due to poor maintenance. Making mere allegation is not sufficient to say that the vehicle was not properly maintained and therefore, the front wheel got cut off. One could not jump to such a conclusion based on allegations. The duty is cast on the insurance company to establish the allegation to escape the liabilities. They failed to discharge their duty. In fact, the appellant insurance company appointed an investigating officer to give a report on the investigation. The said report was marked as Ex.P R1. But, the officer, who conducted investigation was not produced for cross examination, but some other person, who has nothing to do with the same appeared and he could speak only about the policy and he could not speak about the accident.
14.It is not known as to why the insurance company failed to examine the investigating officer, who was appointed by them and a report was obtained. The Commissioner considered all those relevant facts in detail and recorded a finding that it is not a case of policy violation. I do not find any infirmity with such a view of the learned Commissioner and no negligence could be attributable to the driver on the facts of this case.
15.Finally, the learned counsel for the appellant has stated that the driver did not possess a valid licence to drive Heavy Motor Vehicle. Here again, the insurance company failed to discharge its burden by summoning and examining RTO or the official of RTO to prove their version. As per Ex.P7, Ex.P7 is a licence to drive Light Motor Vehicle and there is also a batch endorsement. Therefore, the learned Commissioner came to the conclusion that he was unable to come to the conclusion that the deceased did not have proper licence to drive the vehicle. The following para 11 of the award is extracted herein:
?ne;j tHf;fpy; fduf thfdk; Xl;Ltjw;F nwe;jth; Xl;Ldh; chpkk; bgw;wpUf;ftpy;iy vd;gij fhuzk; fhl;o nd;R{ud;!; fk;bgdp jdJ bghWg;g[fspdpd;W eGt KoahJ. tpgj;J rkak; nwe;jtUk; iyl; btfpf;fps; thfdj;jpid Xl;Ltjw;F iybrd;!; bgw;wBjhL Bgl;$; mDkjpa[k; bgw;Ws;w epiyapy; nwe;jth; 1tJ vjph;kDjhuh; thfdj;jpid Xl;Ltjw;F jFjpahd egh; fpilahJ vd;w Kotpw;F tuKoahJ. BkYk; new;jth; bry;yj;jf;f Xl;Ldh; chpkk; bgwtpy;iy vd;gij epUgpf;f 2tJ vjph;kDjhh; jug;gpy; Bkhl;lhh; thfd Jiw mYtyh;fs; ahUk; tprhuiz bra;ag;gltpy;iy. vdBt tpgj;J rkak; nwe;jtUf;F bry;yj;jf;f Xl;Ldh; chpkk; fpilahJ vd;w thjk; epuhfhpf;fg;gLfpwJ.?
16.The Commissioner has categorically stated that the appellant insurance company failed to examine any officials from the motor vehicle department to prove their claim and hence, they could not rely on the documents produced by the claimant, who is the unfortunate mother, who lost her son in the accident at the young age. They shall independently establish their case by letting in appropriate evidence and in the absence of the same, they could not blame the Commissioner.
17.For all the aforesaid reasons, the appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
12.03.2015
INternet : Yes/No
Index : Yes/No
Arul
D.HARIPARANTHAMAN, J.
Arul
To
1. Commissioner for Workmen Compensation
(Deputy Commissioner of Labour),
Tirunelveli
C.M.A.(MD)No.209 of 2015
and
M.P.(MD) No.1 of 2015
12.03.2015