Uttarakhand High Court
United India Insurance Company Ltd vs Smt. Basanti Devi on 6 April, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN HIGH COURT OF UTTARAKHAND
AT NAINITAL
Appeal From Order No.68 of 2010
United India Insurance Company Ltd. .....Appellant
Vs.
Smt. Basanti Devi ...Respondents
Advocate: Mr. K.K. Sah, Advocate for the appellant.
Mr. Tarun Pande, Advocate for the respondents.
Hon'ble Sharad Kumar Sharma, J.
The appellant Insurance Company has preferred this appeal from order by invoking the provisions contained under Section 30 of the Workmen's Compensation Act, putting a challenge to the judgment and award as it has been rendered by the Workmen Compensation Commissioner/District Magistrate, Pithoragarh, in Workmen Compensation Case No.11 of 2008 Smt. Basanti Davi vs. Ramesh Chandra Punatha and another. Though the initiation of the argument of learned counsel for the appellant was from the perspective, that the impugned award suffers from apparent vices of non-compliance of the provisions contained under Rule 9(3) and 9(4) of the Central Motor Vehicle Rules 1989 and on that count, the impugned award is vitiated.
2. Before answering the arguments, which had been extended by the learned counsel for the appellant, the factual backdrop, under the circumstances, under which the case has fallen for consideration before the Workmen Compensation Commissioner is required to be dealt with by this appellate court. The claimants/respondent had filed a Claim Petition on 06.06.2008 contending thereof that late Mr. Laxman Ram, who was the husband of the claimant no.1 and the father of the claimant nos.2, 3 & 4, he was employed as a driver, by the owner of the vehicle Mr. Ramesh Chandra Punatha, who was a registered owner of the Tanker bearing Registration No.U.A.05/4288. It was contended that when the driver of the vehicle late Mr. Laxman Ram was driving the vehicle on 16.03.2008 and was taking the vehicle from Kathgodam via Tanakpur to Dharchula, when the tractor reach at a place near "Vasaan" the tanker met with 2 an accident. As a consequence of the accident, since the vehicle fell into the gorge the deceased had met with serious injuries and had died on the spot. It was contended by the claimant that the deceased on the date of the accident was of 45 years of age and was profitably employed by the owner of the vehicle opposite party no.1 to the claim petition and was drawing a salary of Rs.4000 per month. Hence, it was contended that based upon the said income accruing to the deceased, the dependents of the deceased would be entitled for the grant of compensation under the provisions of Workmen Compensation Act.
3. In response to the Claim Petition preferred by the claimant, the written statement was filed by the opposite party no.1 i.e. the owner of the vehicle on 27.6.2008 and by the present appellant that is opposite party no.2, before the court below on 25.07.2008. Based upon the pleadings raised by the opposite parties to the proceedings of Workmen Compensation Case No.11 of 2008, the learned Workmen Compensation Commissioner, by an order of 19.08.2008, had framed the following issues:-
^^1- okn fcUnq&1 D;k e`rd y{e.k jke dh e`R;q crkSj pkyd foi{kh&1 ds ;gkW lsokdky ds nkSjku fnukad 16-03-2008 dks Vudiqj&/kkjpwyk ekxZ esa olku ds ikl gqbZ VSadj nq?kZVuk esa gqbZ\ 2- okn fcUnq&2 oDr nq?kZVuk e`rd dh mez D;k Fkh vkSj mldk ekfld osru D;k Fkk\ 3- okn fcUnq&3 D;k oDr nq?kZVuk foi{kh&1 dk okgu la[;k ;w-,-05@4288 foi{kh&2 chek dEiuh ls chfer Fkk vkSj D;k oDr nq?kZVuk okgu ds leLr dkxtkr~ oS/k Fks rFkk D;k chek ikWfylh dh 'krksZa dk mYya?ku gqvk Fkk ;fn gkW rks mldk izHkko\ 4- okn fcUnq&4 D;k oknhx.k e`rd ds vkfJr gS\a 5- okn fcUnq&5 oknhx.k D;k&D;k vuqrks"k ikus ds vf/kdkjh gSa vkSj fdl foi{kh ls\^^
4. If the issues itself are taken into consideration they were limited to the extent:-
(1) Whether the death of the employee has been caused during the course of employment?3
(2) As to what was the age of the deceased and the monthly income accruing to him?
(3) As to whether on the date of the accident the vehicle was validly insured or not?
(4) Fourth issue was limited to be considered by the Workmen Compensation Commissioner it was to the effect, as to whether the claimants were the dependants of the deceased or not?
5. The learned trial court heard the matter at length and ultimately while considering the rival contentions partially allowed the Claim Petition by the impugned award of 13.10.2009, whereby it had assessed the compensation to be made payable to the tune of Rs.3,12,940/- along with the interest payable on it @ of 12% from the date of institution of Claim Petition i.e. with effect from 06.06.2008. In order to answer the question, which has been raised by the counsel for the appellant, has drawn the attention of this Court to the provisions contained under Rule 9(3) and 9(4) of Rules of 1989, which are extracted hereunder:-
"9(3) The licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving licence of the applicant to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life.
9(4) A licensing authority other than the original licensing authority making any such endorsement shall communicate the fact to the original licensing authority.] Learner's licence"
6. What he contends to argue is that on the date of the accident when the vehicle was being driven, though even if the license, which was held by the deceased was bearing an endorsement as contemplated under Sub Rule (3) of Rule 9 of the Rules and as per the procedure provided under Sub Rule (2) of Rule 9 of the Rules, but he contends that the said endorsement cannot be taken as to be a valid endorsement on the pretext that it was fraudulently obtained and the said endorsement was mandatorily required to be made, because he was carrying goods, which was dangerous and hazardous to the nature and to human.
47. In order to answer the argument of learned counsel for the appellant from the perspective of the effect of Sub Rule (2) of Rule 9 of the Rules, it is an admitted case of the appellant that the license which was produced before the learned Court below, did bear an endorsement of the competent licensing authority, but in case if the appellant doubted the propriety of the said endorsement made by the competent authority, it was he who was supposed to discharge the burden of the proof; that the endorsement obtained in the license was as a consequence of a fraud having being played upon by the deceased driver of the vehicle or even by the owner of the vehicle, but since no such plea was ever raised by the appellant in the written statement nor any effort was made by the appellant to prove the same to the contrary, it was a burden which was casted upon to be discharged, because it was under this plea that the appellant was trying to shy away from its liability to pay the compensation, the burden was to be discharged by him and that could have been possible only when there was pre-existing pleading in the written statement, which could have been later on elaborated to be established by leading the evidence. In the absence of there being a principal basis and the pleading with regards to the effect of Sub Rule (2) of Rule 9 of the Rules of 1989, the appellant has utterly failed to establish the fact that the endorsement which appeared in the license of the driver, was obtained fraudulently and at this stage of appeal, this ground is not available to the appellant, to be argued, because as per the opinion of this Court when it is a plea of fraud raised by the Insurance Company qua the documents relied by the tribunal for the purposes of determination of compensation, in order to validate the authority of the driver, to drive the vehicle on the date of the accident, it was all the more necessary for him to have endeavour to establish the fact by leading evidence to establish a fraud and once a ground is not established by a prior pleading supported by an evidence, the plea of their being fraudulent endorsement, having being obtained fraudulently in order to derive the benefit of the impact of Sub Rule (3) of Rule 9 of the Rules, is not available to the appellant at this stage.
8. The learned counsel for the appellant had further argued that even for the moment, if it is taken that the license did bear an endorsement of competent Transport Authority of Roorkee, if that be the situation, his submission was that no credibility could be attached to the said endorsement in 5 the absence of there being a compliance of the provision contained under Sub Rule (4) of Rule 9 of the Rules of 1989. The provisions of Sub Rule (4) of Rule 9 of the Rules of 1989, has been extracted above. On a simplicitor implication to Sub Rule (4) of Rule 9 of the Rules, in fact the burden which is casted upon therein under Sub Rule (4) is a duty which is casted on the licensing authority as taken under the Act and the Rules framed thereunder.
9. If a responsibility has been casted upon the licensing authority, to communicate the fact of endorsement having being made on the license under Sub Rule (3) of Rule 9 of the Rules, at least on this pretext because of in action on part of the licensing authority and because of in action on part of the Insurance Company to establish the fact, to the contrary with regards to the endorsement made under Sub Rule (3) of Rule 9 of the Rules, the claimants cannot be deprived of the compensation due to inaction on part of the licensing authority of making its communication, to the original licensing authority. If the two connotations under Sub Rule (4) of Rule 9 of the Rules, are taken into consideration, the endorsement made by the licensing authority of Roorkee was not absolutely barred under the provisions of the Motor Vehicle Act. The legislature has only taken a precaution, that the licensing authority as defined under the Act, which he makes an endorsement under Sub Rule (3) of Rule 9, it has to be communicated the same to the original licensing authority only. The provision of Sub Rule (4) of Rule 9 of the Rules, is not a substantive provision, which either creates or deprives a right of a claimant, who raises a claim for payment of compensation due to the loss suffered to an employee or the death caused to the employee, for the purposes of assessment of damages.
10. In that view of the matter, I am of the view that if the licensing authority has not informed the original licensing authority, about the endorsement under Sub Rule (3) of Rule 9 of the Rules, the Insurance Company cannot derive any benefit out of it, because the provisions of Sub Rule (4) of Rule 9, has to be harmoniously and logically construed in favour of the claimants, under a welfare legislation, particularly when it is only a procedural law and not a Substantive law.
611. On the contrary it has been argued by the counsel for the claimant/ respondent that the argument extended by the counsel for the appellant with regards to the implications of Rule 9 of the Rules, is absolutely misconstrued by him, in view of the facts involved in the instant case and finding which has been recorded on Issue No.3 by the Workmen's Compensation Commissioner and he contends that in view of the findings, which has been recorded pertaining to the validity of the license, which a deceased possessed on the date of accident and with regards to the finding recorded pertaining to the implications of Rule 9, as it has been argued since it stands answered in the finding recorded on Issue No.3, the argument of learned counsel for the appellant is not sustainable and the amount as determined to be made payable by the Workmen Compensation Commissioner was absolutely justified.
12. Apart from the above grounds, no other ground was pressed by the counsel for the appellant. The two questions argued by the counsel for the appellant is answered against the appellant. Consequently, the appeal fails and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) 06.04.2022 Arti