Madhya Pradesh High Court
The New India Insu.Co.Divisional ... vs Smt.Rani Yadv on 16 March, 2020
Equivalent citations: AIRONLINE 2020 MP 898
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Miscellaneous Appeal No.889/2008
The New India Insurance Co. Ltd.
Vs.
Smt. Rani Yadav & Others
--------------------------------
Shri Dinesh Koshal, learned counsel for the appellant.
Shri Sanjeev Tuli, learned counsel for the respondent Nos. 1 to 3.
==================================
ORDER
Reserved on 13/02/2020 Passed on 16/03/2020 This Miscellaneous Appeal has been preferred under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter refer to as the "Act") against the award dated 04/12/2007 passed by Commissioner of Workmen's Compensation, cum Deputy Commissioner of Labour, Satna in W.C. No.21/2006 (WCF), whereby learned trial Court allowed the application filed by respondent Nos.1 to 3/claimants (the wife, father and mother of the deceased Gorelal respectively) and directed the appellant to pay Rs.3,62,368/- as compensation alongwith interest @ 12% p.m. from the date of incident i.e. 05/02/2006, to the respondent Nos. 1 to 3/applicants.
2. Brief facts of the case which are relevant for the disposal of this appeal are that the respondent Nos.1 to 3 who are parents and widow of deceased Gorelal filed an application under Section 22 of the Act seeking compensation of Rs.14,40,000/- on account of death of deceased Gorelal in a vehicle accident. It is averred that deceased Gorelal aged about 23 years was employed as driver under the employment of respondent No.4 Jag Jahir Singh, the owner of the tractor bearing registration No.MP/19-D/1480 on salary of Rs.3,000/- per month. It is further averred that on 05/02/2006, when deceased Gorelal was driving the offending tractor and was proceeding Digitally signed by ANURAG SONI Date: 17/03/2020 10:56:58 2 to Yadav Petrol Pump from Gallamandi Road to take diesel, on the way near a culvert, the tractor became uncontrolled and turned turtle, due to which Gorelal sustained injuries and succumbed to death. At the time of incident, the said tractor was insured with appellant/New India Insurance Company Ltd., hence it was prayed that compensation of Rs.14,40,000/- alongwith interest be awarded. Respondent No.4/owner of the offending tractor in his reply admitted the claim, however averred that at the time of incident the offending tractor was insured with the appellant/Insurance Company and the tractor was being driven by Gorelal according to the Policy terms, hence he is not liable to pay compensation to the respondent Nos. 1 to 3 and it is appellant/Insurance Company who is liable to pay compensation to the respondent Nos.1 to 3. The appellant/Insurance Company in its reply opposed the application. Although, appellant/Insurance Company admitted that the offending tractor bearing registration No.MP/19-D/1480 was insured with the Insurance Company, but denied its liability on the ground that at the time of incident the tractor was being driven by deceased Gorelal and he was not having valid and effective driving license to drive the said tractor, thus at the time of incident, tractor was being driven in violation of Policy terms, so appellant/Insurance Company is not liable to pay compensation to the respondent Nos. 1 to 3.
3. After recording the evidence produced by both the parties and hearing counsel for the parties, learned Commissioner for Workmen's Compensation turned down the appellant's objection and held that appellant/Insurance Company has failed to prove the fact that the tractor was being driven by Gorelal in violation of policy terms at the time of incident and allowed the application filed by the respondent Nos.1 to 3 holding that the deceased Gorelal died during the course of employment of respondent no.4 and estimating monthly income of deceased at Rs.3,750/- per month, awarded compensation of Rs.3,62,368/- after deducting Rs.50,000/- which was deposited by the Insurance Company as interim compensation (total Rs.4,12,368/-) against the appellant with the direction to deposit the amount within a period of 2 months with 12% interest from the date of accident.
Digitally signed by ANURAG SONI Date: 17/03/2020 10:56:58 3Being aggrieved from that award, appellant/Insurance Company filed this appeal.
4. Learned counsel for the appellant/Insurance Company submitted that from the evidence produced by the appellant/Insurance Company before the Commissioner for Workmen's Compensation it is clearly proved that at the time of incident deceased Gorelal was not having valid driving license and the tractor was being driven by deceased Gorelal in violation of Policy terms, as contemplated under Section 149(2)(a)(ii) of Motor Vehicle Act, so appellant/Insurance Company is not liable to indemnify the owner of the vehicle as he had violated the policy conditions to that effect. It is manifest from the materials available on record that the driving license of the deceased Gorelal was not produced before the learned Commissioner for Workmen's Compensation, either by the respondent/claimants or by the fourth respondent/owner of the offending tractor. The appellant/Insurance Company had sent a notice dated 27.02.2008 to the owner of the vehicle/respondent no.4 to disclose the details of the driving license of the deceased driver. This notice got no response from the owner of the vehicle, which clearly shows that at the time of incident deceased Gorelal was not having valid driving license and the tractor was being driven by deceased Gorelal in violation of Policy terms, so the appellant/Insurance Company is not liable to pay compensation to the respondent Nos. 1 to 3. Learned trial Court without considering the appellant's evidence wrongly assumed that the license might have been lost/destroyed in the accident and that the appellant/Insurance Company failed to prove the fact that at the time of incident the tractor was being driven by Gorelal in violation of policy terms. Likewise, while awarding the amount of compensation, the Commissioner for Workmen's Compensation awarded the interest from the date of incident i.e. 05/02/2006, but it ought to have been given from the date of filing of application i.e. 04/04/2006. On the strength of aforesaid, learned counsel prayed that the appeal be allowed and the award passed by the learned trial Court be set aside.
5. Learned counsel for the claimants/respondent Nos. 1 to 3 opposed the prayer and submitted that the learned trial Court after evaluating all the Digitally signed by ANURAG SONI Date: 17/03/2020 10:56:58 4 evidence properly, rightly held that the offending tractor was being driven according to Policy terms at the time of incident, so there is no occasion to interfere with the award. Hence, the appeal filed by the appellant has no merit and deserves to be dismissed.
6. This Court has gone through the record and arguments advanced by the learned counsel for the parties.
7. By way of filing the instant appeal, appellant/Insurance Company did not challenge the amount of compensation and also admitted the fact that at the time of incident, the offending tractor was insured with the appellant/Insurance Company. The relationship of employer & employee between the owner of the vehicle and deceased driver has not been disputed. It is not the case of the appellant/insurance Company that the driver is not covered under the policy which was marked as Ex.D-3. So, the questions for determination in this Appeal are as follows :-
1. Whether, Commissioner for Workmen's Compensation is justified in awarding the interest @ 12% p.m. from the date of accident ?
2. Whether, from the facts and circumstances of the case in the absence of producing valid driving license, the liability can be saddled on the appellant/Insurance Company under the provisions of Workmen's Compensation Act and the Commissioner for Workmen's Compensation is justified in dismissing the objection in respect of holding valid driving license by the deceased ?
8. As regards to question No.1, from the bare perusal of Sub-Section 1 of Section 4-A of the Employee's Compensation Act, 1923, it is clear that compensation shall be paid as soon as it falls due. Hon'ble Supreme Court in the case of Pratap Narain Singh Deo. Vs. Shrinivas Sabata and Another, (1976) 1 SCC 289 while dealing the issue that when compensation become due held :-
"7. Section 3 of the Act deals with the employer's liability for compensation. Sub-section (1) of that section provides that the employer shall be liable to pay compensation if "personal injury is caused to a workman by accident arising out of and in the course of his employment". It was not the case of the employer that the right to compensation was taken away under sub-section (5) of Section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due until after the Commissioner's order dated May 6, 1969 under Section 19. What the Digitally signed by ANURAG SONI Date: 17/03/2020 10:56:58 5 section provides is that if any question arises in any proceeding under the Act as to the ability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer's liability to pay compensation under Section 3, in respect of the injury, was suspended until after the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary."
9. Apex Court in the case of North East Karnataka Road Transport Corporation Vs Sujatha (2019) 11 SCC also following the above mentioned judgement held that the interest should be paid from the date of accident. So, in the light of the above mentioned decisions of the Hon'ble Supreme Court the legal position is clear that the liability to pay compensation arises on the date of accident and when it is not paid within the statutory period of 30 days, then the liability to pay interest commences, after the expiry of 30 days from the date of accident. So the learned Commissioner for Workmen's Compensation did not commit any mistake in awarding the interest from the date of incident.
10. As regard to question No.2, learned counsel for the appellant submitted that Mr. Tushar Ghos (DW-1) (witness of the appellant/Insurance Company) clearly deposed in his statement that at the time of incident Gorelal was not having a valid driving license. In this regard, appellant Insurance Company also sent the notice (Ex.D-6 & D-7) to the respondent No.4/owner of the said tractor, but he did not give any reply of those notices and did not produce the driving license of deceased Gorelal. Although, respondent No.4/owner of the said tractor Jag Jahir Singh deposed before the trial Court that deceased Gorelal was having a valid driving licence to drive the tractor and he had seen the driving license of deceased Gorelal, but he admitted in his cross-examination that he did not know the RTO office from where deceased Gorelal's driving license was issued, when it was issued and for what period. He has no photocopy of Gorelal's driving license. He did not produce Gorelal's Driving license in evidence. So, in absence of his driving license it is clearly proved that at the time of incident Gorelal was not having any valid driving license and at the time of the accident the offending tractor was being driven in violation of policy terms. Learned trial Digitally signed by ANURAG SONI Date: 17/03/2020 10:56:58 6 Court without considering the evidence, wrongly held that the tractor was being driven as per the policy terms at the time of the incident.
11. Per contra, learned counsel of the respondent no.1 to3/claimants submitted that the onus was on the appellant/insurer to prove that the driver, who was driving the vehicle at the time of the accident, did not possess a valid driving licence. The mere averment to that effect in the written statement, or a mere suggestion to a witness with regard to it in their cross- examination is not sufficient to discharge the burden on the insurer. It was further submitted that it was not enough for the insurer to have merely given notice to the owner to produce the driving licenses of the driver of the vehicle. Insurance companies ought to have approached the Road Transport Authority which issues the driving licence, keeps a record of the licences issued and renewed by it and proved on their own that the driver was not duly licensed. Respondents were under no obligation to furnish evidence so as to enable the Insurance Company to wriggle out its liability under the contract of insurance. The insurance company could have got the evidence produced to substantiate its allegation. But, appellant failed to discharge its initial burden to prove the fact that at the time of accident deceased Gorelal was not having a valid driving licence. Hence, for these reasons, the insurer could not be absolved of their liability, merely on the basis of their pleading that the driver was not duly licensed.
12. Although, initially the burden of proving the fact that the driver of the vehicle did not have a valid driving license at the time of accident rests with the person (Insurer) who takes this defence. But, what degree of proof will be required to discharge that initial burden depends upon the facts and circumstances of each case. In this regard, the Apex court in the case of Pappu v. Vinod Kumar Lamba, (2018) 3 SCC 208 following the earlier judgement of Apex Court passed in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 reiterated "the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the Insurance Digitally signed by ANURAG SONI Date: 17/03/2020 10:56:58 7 Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time.''
13. It was further observed "merely producing a valid insurance certificate in respect of the offending truck was not enough for Respondent 1 to make the insurance company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The insurance company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the written statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The insurance company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle."
14. If we examine the instant case in the light of above pronouncement of the Apex Court, the Insurance Company took the defence in its reply that at the time of the accident the offending vehicle (tractor) was being driven against the policy terms and the driver of the offending vehicle was not having a valid driving licence and also sent the notice (Ex.D-6 & D-7) to the owner of the vehicle informing him about the production of driving license of driver Gorelal and violation of Motor Vehicles Act and policy conditions. The insurer also produced Mr. Tushar Ghos (DW-1)(witness of the Insurance Company) who clearly deposed in his statement that at the time of incident Gorelal was not having a valid driving license. Appellant/Insurance Company gave the suggestions to Respondent No.1 Smt. Rani Yadav wife, respondent No.2 Mundali Yadav father of the deceased Gorelal as well as Jag Jahir Singh owner of the tractor, in their cross-examination, that at the time of accident deceased Gorelal was not having a valid driving licence.
Digitally signed by ANURAG SONI Date: 17/03/2020 10:56:58 8Admittedly, the insurer had not taken steps to ascertain from RTO, whether the driver of the offending tractor deceased Gorelal was issued with a driving license. But, neither claimants (legal heirs of the deceased Gorelal) nor respondent no.4, owner of the vehicle could give any information to the appellant/Insurance Company as from which RTO and on what date the deceased driver took the driving license. In the case, where the owner/driver of the vehicle does not give information, as from which R.T.O. did the driver obtain the driving licence. It is cumbersome for the Insurance Company to obtain the evidence from all the transport offices, throughout the State or the country to prove the fact that the driver of the vehicle was not having a valid driving licence.
15. Under these circumstances, in the considered opinion of this Court, the Insurance Company had discharged initial responsibility in proving the fact that the driver of the vehicle had no valid license and the said fact had not been discharged either by claimants or by owner of the vehicle. The Commissioner of Workmen's Compensation, cum Deputy Commissioner of Labour, Satna committed mistake in holding that the appellant/Insurance Company failed to prove the fact that at the time of incident deceased Gorelal driver of the tractor did not have a valid driving license and the offending vehicle was being driven against the policy terms. Therefore, this Court is inclined to hold that the appellant/Insurance Company had established that the driver of the tractor which is insured with the appellant, did not have a valid driving license and at the time of accident the offending vehicle was being driven against the policy terms. Therefore, the appellant/Insurance Company is absolved from its contractual obligation of indemnifying the owner of the vehicle under the insurance coverage.
16. However in the case, it is admitted fact that at the time of incident, the offending tractor was insured with the appellant/Insurance Company. The relationship of employer and an employee between the owner of the vehicle and deceased driver has not been disputed. It is not the case of the appellant/Insurance Company that the driver is not covered under the policy which was marked as Ex.D-3. Therefore, to subserve the ends of justice, the appellant/Insurance Company shall pay the claim amount awarded by the Digitally signed by ANURAG SONI Date: 17/03/2020 10:56:58 9 Commissioner of Workmen's Compensation, cum Deputy Commissioner of Labour, Satna to the claimants/respondent no.1 to 3 at the first instance, with liberty to recover the same from the owner of the vehicle/Respondent No.4 in accordance with law.
17. Accordingly, the appeal is allowed to the extent that the amount of compensation awarded by the Commissioner for Workmen's Compensation, cum Deputy Commissioner of Labour, Satna shall, be paid and satisfied by the insurer (Appellant) at the first instance, with the liberty to recover the same from the owner of the vehicle (Respondent 4) in accordance with law.
18. In the facts and circumstance of the present case, there shall be no order as to costs.
(Rajeev Kumar Dubey) JUDGE as/-
Digitally signed by ANURAG SONI Date: 17/03/2020 10:56:58