Jammu & Kashmir High Court
Bajaj Allianz General Insurance Co. ... vs Raj Kumari And Ors. on 28 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CIMA No.205/2015 & MP No.1/2015
Date of decision:28.10.2017
Bajaj Allianz General Insurance Co. Ltd. V Raj Kumari & ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the appellant (s) : Mr. Jugal Kishore Gupta, Advocate
For the respondent(s) : Mr. Anil Gupta, Advocate.
(i) Whether to be reported in
Press, Journal/Media : Yes/No
(ii) Whether to be reported in
Journal/Digest : Yes/No
1. In this Civil Ist Miscellaneous Appeal preferred under Section 30 of Employees Compensation Act/Workmen's Compensation Act, the appellant has assailed the validity of the judgment/Award 30.06.2015 passed by the Commissioner under Employees Compensation Act 1923 (Assistant Labour Commissioner), Jammu.
2. The facts leading to filing of this appeal are that respondent Nos.1 to 3 filed a claim petition before the Commissioner under Employees Compensation Act 1923 (Assistant Labour Commissioner), Jammu for grant of compensation on account of death of Sh. Ashok Kumar, who had allegedly died on 18.06.2010 while driving the Tipper bearing temporary registration No.JMU-9483 near Dalwas National Highway 1-A. Respondent No.4 was also impleaded as party respondent in the claim petition filed by respondent Nos.1 to 3 before ALC Jammu along with the appellant company being the insurer of the said Tipper. It is further stated that the appellant company CIMA No. 205/2015 Page 1 of 10 after its service filed an objections to the claim petition by taking various defences available to it. The company has raised specific defences that the deceased driver was not holding a valid and effective driving licence at the time of accident and further the vehicle was being driven in violation of terms and conditions of the insurance policy. In order to prove that the deceased driver Ashok Kumar was holding a fake and forged Driving Licence, the appellant company produced its official Mr.Vikas Rana and Sr. Assistant Mr. Bal Krishan from the office of Licensing Authority, Solan (H.P) as witnesses in the case. These two witnesses produced by the appellant company prove that the driving licence held by the deceased driver Ashok Kumar was a fake and forged document. It is further stated that the Commissioner under Employees Compensation Act 1923 (Assistant Labour Commissioner), Jammu vide his judgment dated 30.06.2015 rejected the defences raised by the appellant company and passed an award of Rs.10,09,936/- in favour of respondent No.1 to 3 and against the appellant company.
3. The appellant company being aggrieved of the judgment/award impugned challenges its legality, validity and correctness on the following amongst other grounds:
a) That the judgment/award impugned is ex facie bad, contrary to the facts of the case and law on the point and the same therefore deserves to be set aside.
b) That the award impugned is without jurisdiction and is liable to be set aside.
The award impugned has been passed by Assistant Labour Commissioner in the capacity of Commissioner under Employees Compensation Act 1923. It is submitted that no notification has been issued by the government appointing Assistant Labour Commissioner, Jammu as Commissioner under the Employees Compensation Act, 1923. Otherwise also, as per Section 20 of the Employees Compensation Act, the Government may by notification in the official gazette appoint any person who is or has been a member of State Judicial Service for a period not less than five years or is or has been for not less than five years an Advocate or Pleader or is or has been a Gazetted Officer for not less than five years having education qualification an experience is personal management, Human Resource Development and Industrial relation to be a Commissioner for Employees Compensation for such area as may be specified in the notification. The present Assistant Labour Commissioner, Jammu who has passed the award impugned does not fall in any of the categories provided in Section 20 of Employees Compensation Act.
CIMA No. 205/2015 Page 2 of 10The Award impugned thus having been passed by an incompetent person, is without jurisdiction an nullity in the eyes of law and the same therefore, deserves to be set aside and quashed.
c) That the award impugned holding the appellant company to be liable to satisfy the award amount is wholly illegal and erroneous and the same is liable to be set aside.
d) That though the claim petition was filed by the respondent's No.1 to 3 on the ground that the deceased Ashok Kumar was driving the insured Tipper at the time of accident but neither the copy of the license was produced along with the claim petition nor at the time of leading their evidence. Respondents No.1 to 3 knowingly that the deceased was holding a fake and forged DL, withheld the same from the Hon'ble Court. On the contrary, the company by leading cogent evidence has proved beyond any doubt that the deceased driver Mr. Ashok Kumar was holding a fake and forged driving license, the copy of which was furnished to the appellant company by the owner for settlement of own damage claim. The own damage claim of the insured vehicle was also rejected by the company as the deceased driver was holding a fake driving license. Despite the appellant company having proved that the deceased was holding a fake and forged driving license, the commissioner below fastened the liability of satisfying the award amount on the appellant company. The judgment/award impugned is thus wholly illegal and deserves to be set aside.
e) That the finding of the commissioner below that the company apart from proving that the driver was holding a fake driving license, was also required to prove that the owner was having the knowledge that driver is holding a fake license but still permitted him to drive the vehicle by relying upon the judgment cited in the award impugned. It is submitted here that the judgment relied upon by the tribunal had arisen from an award passed under M.V.Act and therefore, the principle laid down therein was not applicable to the case in hand. Further it is submitted that after the appellant company led its evidence and proved that the deceased driver was holding a fake driving license, the company had discharged its onus and the commissioner below could not fastened the liability on the appellant company particularly when the owner had not led any evidence in rebuttal. On this score also, the judgment/award impugned is bad in the eyes of law and same deserves to be set aside.
f) That the respondent No.4 had failed to produce the route permit and fitness certificate of the vehicle involved in the accident despite having been demanded by the appellant company. It is submitted that the deceased driver had no authority to use the vehicle other than permitted in the route permit. The vehicle was thus being driven in violation of the policy terms and conditions and the M.V.Act as the vehicle did not possess the route permit and the fitness certificate and therefore no liability could have been fastened upon the appellant company.
g) That the claimants/respondent Nos.1 to 3 have failed to prove the relationship of employee and employer between the deceased and the respondent No.4. Thus the death of the deceased driver having not taken place while being under the employment of respondent No.4, the claim petition was not maintainable and deserves to be dismissed.
h) That no notice as envisaged under Section 10-B of Employees Compensation Act was served upon by the claimant or the employer on the appellant company. In the absence of compliance of provisions of the E.C. Act and the CIMA No. 205/2015 Page 3 of 10 Rules framed there under, the Commissioner could not have entertained the claim petition and passed award against the appellant company.
4. The appeal involves the following substantial questions of law:
i) Whether the commissioner under E.C. Act can allow a claim petition without establishing the relationship of employee and employer between the deceased and the owner of the vehicle?
ii) Whether the insurance company can be held liable to satisfy the award when the vehicle was admittedly being driven by a driver holding a fake driving license.
iii) Whether in a claim petition under Employees Compensation Act, the insurance company apart from proving that the driver was holding a fake driving license, is also required to prove that the owner had the knowledge of the same.
iv) Whether in the absence of any evidence in rebuttal to the evidence led by the insurance company, the condition of wilful breach could be restored to by the commissioner under Employees Compensation Act to fasten the liability of the award amount on the insurance company.?
v) Whether the legal heirs/representatives of a deceased driver who was holding a fake driving license, entitled to claim any compensation under Employees Compensation Act from the insurance company.
vi) Whether the insurance company can be made liable to satisfy the award amount when the vehicle was being driven without Route Permit and Fitness Certificate.?
vii) Whether the Commissioner under E.C.Act can entertain a claim petition in the absence of compliance of the provisions of Section 10-B of E.C.Act and the Rules framed there under.?
viii) Whether the commissioner below could arbitrarily assumed the wages of the deceased driver as Rs.8,000/- per month in the absence of there being any wage certificate issued by the employer or any other cogent/documentary evidence in this regard.?
ix) Whether the commissioner below on the solitary statement of the widow of the deceased could assess the wages of the deceased driver as Rs.8000/- per month without being corroborated by any other independent witness.
x) Whether the commissioner below in the absence of any claim having been lodged by the claimants or owner can penalize the insurance company for the payment of interest @ 12% per annum that to from the date of accident.CIMA No. 205/2015 Page 4 of 10
5. Heard learned counsel for the parties and perused the record.
6. From the perusal of file of court below, it is evident that respondents Nos.1 to 3 herein filed a claim petition before the Commissioner under Employees Compensation Act 1923 (Assistant Labour Commissioner), Jammu for grant of compensation on account of death of Sh. Ashok Kumar, who had allegedly died on 18.06.2010 while driving the Tipper bearing temporary registration No.JMU-9483 near Dalwas National Highway 1-A. This claim petition was filed against Insurance Company-appellant herein and owner of offending vehicle. Appellant- company after its service, filed objections to the claim petition by taking various defences available to it. Court below framed following issues of facts;-
1. Whether deceased Ashok kumar falls under the definition of employee as defined under the EMPLOYEES COMPENSATION ACT ?
2. Whether deceased met with an accident arising out of and during the course of employment ?
3. What was the age of and wages of deceased at the time of accident:
4. Relief ?
7. Bare perusal of issues, it is evident that these all are pertaining to facts.
Court below after holding trial, decided all issues in favour of claimants and passed the impugned award thereby directing the insurance company to pay Rs.6,39,200/- under section 4 (1)(a) of the Act and Rs. 3,70,736/- as delay payment in terms of section 4A(3)(a) of the Act.
8. The objective of the Employee Compensation Act, 1923, as defined in the Act to provide for the payment of compensation by certain employers to their employees or to their legal heirs ( in case of his death ) on account of injury caused to them by accident while in employment. If an employee contracts an occupational disease while in employment, it is also treated under the Act as injury caused by accident.
9. The real purpose behind the enactment of such a law can be understood as CIMA No. 205/2015 Page 5 of 10 follows:
Huge number of the young human resource of the country is employed in factories, manufacturing units and various menial jobs It is the responsibility of the employers of this workforce, to provide a safe and healthy work environment for these workers If a worker is injured or dies on the job due to the hazards related to the occupation his dependents or the worker him/herself is not in a position to fight the employer for compensation The employer and worker may not reach a reasonable amount when it comes to compensation in such cases The employer's liability cannot be unlimited, thus to limit the employer's liability
10. Thus, the Act provided a mediator between the employee and the employer for resolution of employment-related disputes arising due to accidents in the workplace. This Act enshrines complete procedure for providing compensation to employees or dependants, who suffer injury or fatal injuries during course of employment. Order of compensation passed by officer under this Act is appealable in terms of section 30 of the Act. Section 30 of the Act reads as under:-
"Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:--
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
(aa) an order awarding interest or penalty under section 4A;
(b) an order refusing to allow redemption of a half-monthly payment;
(c) an order providing for the distribution of compensation among the dependants of a deceased *[employee], or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:CIMA No. 205/2015 Page 6 of 10
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:
Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.
(2) The period of limitation for an appeal under this section shall be sixty days.
11. Bare perusal of this provision, it is manifest that appeal is maintainable only on the substantial question of law.
12. Learned counsel for appellant has framed in memo of appeal ten questions of laws.
13. Bare perusal of these law points formulated in memo of appeal, it is evident that those are not at all substantial questions of law, but are questions of facts. Questions of facts cannot be treated as substantial question of law. So cannot be appreciated in this appeal. The proper test for determining whether a question of law raised in the case is substantial would, mean whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.
14. The points for discussion raised by appellant are, whether Commissioner can allow a claim petition without establishing the relationship of employee and employer between the deceased and the owner of the vehicle; Whether the insurance company can be held liable to satisfy the award when the vehicle was admittedly being driven by a driver holding a fake driving license; Whether the insurance company can be made liable to satisfy the CIMA No. 205/2015 Page 7 of 10 award amount when the vehicle was being driven without Route Permit and Fitness Certificate; Whether the commissioner below could arbitrarily assumed the wages of the deceased driver as Rs.8,000/- per month in the absence of there being any wage certificate issued by the employer or any other cogent/documentary evidence in this regard, are dependants upon appreciation of evidence. These findings can be arrived after appreciating evidence produced by parties during course of trial.
15. With regards to defences taken by insurance company, court below has neither framed any issue nor was any efforts made by company to ask the court below to frame such issues. In terms of section 101 of Evidence Act, burden of proof lies on the person who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. In terms of section 102 of Evidence Act the burden of proof in proceeding lies on that person who would fail if no evidence at all were given on either side.
16. In present case, company has desired that its liability to indemnify the owner to pay compensation be not fastened on it, on the grounds that deceased was holding fake driving licence; that vehicle was being driven without valid R/P and F/C. So burden was exclusively lies on company to prove these facts, because these cannot be treated as law point initially.
17. Even company has produced two witnesses namely Bal Krishan Sr. Assist of RTO Solan (HP ) and Vikas Rana Legal officer of company. Court below has held that both witnesses failed to pass cross examination test. I have gone through the statements of these witnesses. RW Bal Krishan has stated in cross examination that he cannot say as to whether deceased was holding the licence at the time of accident or not because they are in possession of record and whether the deceased was holder of licence issued by Licensing authority of Jammu or HP. Similarly RW Vikas Rana, Legal officer of company, has stated that owner has not provided to the company CIMA No. 205/2015 Page 8 of 10 R/P and F/C despite notice sent to him. But in cross examination stated that he has not seen D/L and he has not seen letter which was sent to the owner; he cannot say whether notice was received by the owner or not.
18. The company has not discharged its burden to prove these facts cogently.
Because for proving these facts, company would have called owner of offending vehicle as its witness with direction to produce documents of vehicle, because burden was upon company.
19. So finding of court below in this regard is not perverse in nature. One can see that insurance companies in all claims cases, used to take stereotypes all defences including fake licence, violation of R/P and F/C etc. But during trial, they do not take any cogent steps to prove these defences. Even in some cases, issues are not framed by Court in these regard, but insurance companies do not make any efforts to ask Court for amendment of issues or file any such application.
20. Another ground has been taken that Commissioner below has arbitrarily assumed the wages of the deceased driver as Rs.8,000/- per month in the absence of there being any wage certificate issued by the employer or any other cogent/documentary evidence in this regard. I have gone through the evidence for limited purpose in this regard. Claimant Raj Kumari has stated the income of her husband, who was driver by profession, Rs.10-12 thousands per month and used to pay Rs. 8000/- pm to home; PWs Nasib Singh and Darshan Singh has also stated the same. There is no rebuttal to this fact. So court below has taken monthly wages as 8000/- . In this way, I do not find any infirmity of facts in this regard.
21. The purpose of section 30 of the Act, thereby maintainability of appeal only on substantial question of law, is that poor employees should not suffer in getting compensation due to prolonged litigation of appeal like in civil case where 1st appeal is maintainable on facts also. In view of above, I do not CIMA No. 205/2015 Page 9 of 10 find any substantial question of law in appeal. This appeal is dismissed. Copy be sent to court below for information.
( Sanjay Kumar Gupta ) Judge Jammu 28.10.2017 Pawan CIMA No. 205/2015 Page 10 of 10