Himachal Pradesh High Court
Bajaj Allianz General Insurance vs Smt. Gulab Devi Gopen & Others on 29 May, 2020
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (WC) No.359 of 2010 Reserved on: 27.05.2020 Decided on: 29.05.2020 Bajaj Allianz General Insurance Company Limited ....Appellant.
Versus Smt. Gulab Devi Gopen & others ...Respondents.
Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No For the appellant : Mr. Aman Sood, Advocate.
For the respondents : Mr. Raman Sethi Advocate, for respondents No.1 and 2.
Mr. Parmod Thakur, Advocate, for respondent No.3.
Ajay Mohan Goel, Judge By way of this appeal, the appellant herein i.e. Bajaj Allianz General Insurance Company Limited has challenged the order passed by the Court of learned Commissioner, Workmen's Compensation Act, Shimla (Rural), District Shimla, H.P. in case No.4/2008, titled Smt. Gulab Devi Gopen and another Versus Suresh Gopen and another, decided on 23.07.2010, vide which learned Commissioner allowed the Claim Petition preferred by 1 Whether reporters of the local papers may be allowed to see the judgment?
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the petitioners before him, under Section 22 of the Workmen's Compensation Act, 1923.
2. This appeal was admitted on 29.09.2010. As record demonstrated that at the time of admission of the appeal, this Court did not frame any substantial question of law, on which the appeal was to be heard, accordingly, when the matter was taken up for consideration on 11.04.2019, this Court framed the following substantial question of law for the purpose of adjudication of this appeal:-
"Whether the learned Workmen commissioner below was justified in passing the impugned award/ judgment, especially when the claimants have failed to establish that the deceased died during the course of employment and further failed to produce the documentary proof to establish the contract of employment coupled with the fact that no independent witness to prove the factum of employment has been produced by the claimants?"
3. Brief facts necessary for the adjudication of the present appeal are that respondents No.1 and 2 herein filed an application under Section 22 of the Workmen's Compensation Act, before the learned Workmen's Commissioner at Shimla, H.P., stating therein that they were mother and father of deceased Dinesh Gopen, who was employed by his brother Suresh Gopen as a driver on his vehicle bearing registration No. HP03C-1332. It was the case of the claimants that on ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 3 .
21.07.2007, deceased Dinesh Gopen was deputed by employer Suresh Gopen to go towards Mashobra (District Shimla) and in the discharge of his duty, while he was on his way back from Mashobra to Shimla, the vehicle being driven by Dinesh Gopen, met with an accident, in which Dinesh Gopen died at the spot.
Accordingly, F.I.R. was lodged at Police Station Dhalli, District Shimla, H.P. i.e. F.I.R. No.156/07, on 22.07.2007. As per the claimants, the age of the deceased at the time of his death was 27 years. The claimants were totally dependent upon the earning of the deceased, who was earning a net amount of Rs.4,800/-
per month. Prayer was thus made that compensation be paid to the claimants in accordance with law.
4. In the said application, Suresh Gopen was impleaded as respondent No.1 and the present appellant was impleaded as respondent No.2.
5. Independent replies were filed to the claim application by both the respondents before learned Commissioner. In the reply filed by respondent Suresh Gopen, he took a preliminary objection with regard to the maintainability of the claim application. It was also mentioned in the preliminary objection that the vehicle in issue was duly insured with the Insurance ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 4 .
Company, i.e. the present appellant and that the Insurance Company had paid compensation (O.D. Claim) of the vehicle to him and therefore, it was the duty of the Insurance Company to pay compensation to the legal heirs of the deceased driver of the vehicle. On merit, contents of the claim application were admitted by the said respondent. He admitted the deceased to be his paid driver and stated that the deceased was being paid an amount of Rs.3,000/- per month as salary and another amount of Rs.1,800/-
as diet money in addition to the salary. It was further mentioned in the reply that the driver of the vehicle was insured at the time of the accident and therefore, it was the duty of the Insurance Company to compensate the claimants and that necessary documents pertaining to the deceased driver already stood supplied to the Insurance Company in petition filed under Section 163-A of the Motor Vehicles Act.
6. In its separate reply filed to the said claim application by the appellant herein, the claim was contested inter alia on the ground that there was no relationship of employer and employee between the deceased and Suresh Gopen, who were real brothers and at the time of the accident, Dinesh Gopen was driving the vehicle not in his capacity as an employee, but in his ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 5 .
capacity as brother of Suresh Gopen. It was further the stand of present appellant before the learned Commissioner that the deceased was not a workman as defined under the Workmen's Compensation Act and the claim stood filed by the claimants in collusion with the owner of the vehicle. Alternative stand taken in the reply by the present appellant was that in the event of learned Commissioner coming to the conclusion that deceased was a workman, even then the claimants were not entitled for any compensation as the deceased was not holding an effective and valid driving licence at the time of alleged accident and the owner of the vehicle had willfully violated the terms and conditions of the Insurance Policy.
7. On the basis of the pleadings of the parties, learned Commissioner framed the following issues for determination and adjudication:-
" 1. Whether the petitioners are entitled for compensation as claimed? If so, to what extent and from whom? OPP.
2. whether the present petition is non-maintainable in the present form? OPR-1 & 2
3. Whether there was no relation of employee and employer between the deceased and respondent No.1? OPR-2
4. Whether the claim application has been filed by claimant in collusion with respondent No.1? OPR-2
5. Whether there is any violation of terms and conditions of Insurance Policy as alleged by respondent No.2? If so, what is the effect? OPR-2
6. Relief".::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 6
.
8. On the strength of the pleadings of the parties as well as the evidence which was led in support of their respective stands, the issues so framed were answered as under by the learned Commissioner:-
"Issue No.1 : Yes.
Issue No.2 : No.
Issue No.3 : No.
Issue No.4 : No.
Issue No.5 : No.
Relief : The petitioners are entitled to
get the compensation amounting to
Rs.5,80,910/- (Five Lacs Eighty
Thousand Nine Hundred Ten
Rupees only) and this amount is
awarded against respondent No.2,
with whom the vehicle in question
was insured".
9. After referring to the respective stands of the parties before it, learned Commissioner held that it stood proved on record that the deceased was engaged as a driver by Suresh Gopen to drive vehicle bearing registration No. HP 03C-1332 on a monthly wages of Rs.4,800/-. Learned Commissioner held that claimant Gulab Devi who entered the witness box as PW-1, stated that deceased Dinesh Gopen was her son and was engaged as a driver with vehicle bearing registration No. HP 03C-1332, which was owned by Suresh Gopen. She deposed that on 21.07.2007, deceased was deputed by the owner of the vehicle to go to Mashobra in connection with some work and on ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 7 .
its way back from Mashobra to Shimla, the vehicle met with an accident, resulting in the death of Dinesh Gopen in the course of his employment. She deposed that the age of Dinesh Gopen at the time of his death was 27 years as per copy of the Matriculation Certificate (Mark-A) in which his date of birth was 02.11.1980. This witness also stated that the deceased Dinesh Gopen was being paid an amount of Rs.4,800/- per month by the employer and a case filed by her before the Fast Track Court stood withdrawn due to technical issues. In her cross-
examination, she denied that she and her husband were not dependent upon the earning of Dinesh Gopen. Learned Commissioner referred to the copy of the F.I.R. bearing No.156/07 which stood exhibited as Ext.PW2/A by Constable Manish Mehta No.1265 of Police Station Dhalli. It took note of the fact that RW-1 Suresh Gopen, owner of the vehicle had stated that Dinesh Gopen was his brother who was engaged by him as a driver to drive the ill-fated vehicle on monthly wages of Rs.4,800/- and that on 21.07.2007, he had deputed Dinesh Gopen, driver of the vehicle to go to Mashobra in connection with some work and while its way back the vehicle met with an accident in which the driver died on the spot. Learned ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 8 .
Commissioner took note of the fact that this witness also stated that the ill-fated vehicle was duly insured with the Bajaj Allianz General Insurance Company Limited and the copy of the Cover Note was Ext.RW1/A, as per which the insurance was valid up to 06.10.2007. Learned Commissioner also observed that the deceased driver was having a valid driving licence (Mark-ZX).
Learned Commissioner also observed that RW-1 had disclosed that he had received the O.D. Claim of the ill-fated vehicle from the Insurance Company. Learned Commissioner observed that RW-2 Prempreet Gujral, Senior, Executive Legal of the Insurance Company had stated that O.D. Claim of the vehicle stood paid to the owner vide Ext.PW2/A and that the owner had disclosed in the O.D. claim papers that deceased driver was his brother.
10. Learned Commissioner held that it stood proved that the deceased was engaged as a driver by Suresh Gopen and he died in the course of his employment and that the claimants were solely dependent upon the deceased for their livelihood.
Learned Commissioner also held that though the owner of the vehicle had admitted that Dinesh Gopen was his real brother, but in law there was no bar that a brother could not be engaged as a ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 9 .
driver. Learned Commissioner further held that the Insurance Company had failed to prove non-maintainability of the petition especially as the Insurance Company had sanctioned the O.D. Claim, in which this fact stood disclosed by the owner of the vehicle that the deceased who was engaged as a driver with the ill-fated vehicle was his real brother. Learned Commissioner further held that the owner of the vehicle had admitted the deceased to be his driver and that he was being paid an amount of Rs.4,800/- per month as salary etc, whereas the Insurance Company had failed to prove otherwise. Learned Commissioner also held that the Insurance Company had failed to demonstrate that there was any violation of terms and conditions of the Insurance Policy and it was evident from the terms of the Insurance Policy that the same was valid upto 06.10.2007. It also held that the O.D. Claim Ext.RW2/A as well as certificate of policy schedule Ext.PW2/B demonstrated that there was no violation of the terms and conditions of the Insurance Policy.
11. On these basis, learned Commissioner allowed the claim application by awarding total compensation of Rs.5,80,910/- in favour of the claimants therein by applying the following formula:-
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"1. Date of accident 21-7-2007
2. Compensation felled due 21-8-2007
3. Date of birth of the deceased 2-11-1980
4. Age at the time of accident 27 years
5. Wages of the deceased Rs.4800/- but restricted to 4000/- as per the provision of section-4(a) read with explanation-2 of W.C. Act
6. Relevant factor 213.57
7. Principal Compensation 213.57X2000=4,27,140=00
8. Interest @ 12% w.e.f.
21-8-2007 to 31-7-2010
i.e. 3 years 1,53,770=00
9. Total Compensation 5,80,910.00
(Rs.Five Lakh Eighty Thousand Nine Hundred & Ten) only"
12. Feeling aggrieved, the Insurance Company has filed this appeal.
13. As I have already mentioned above, on 11.04.2019 the following substantial question of law was framed by this Court for the adjudication of this appeal:-
"Whether the learned Workmen commissioner below was justified in passing the impugned award/ judgment, especially when the claimants have failed to establish that the deceased died during the course of employment and further failed to produce the documentary proof to establish the contract of employment coupled with the fact that no independent witness to prove the factum of employment has been produced by the claimants?"
14. Learned counsel for the appellant vehemently argued that the order passed by the learned Commissioner is not sustainable in the eyes of law as the learned Commissioner ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 11 .
erred in not appreciating that there was nothing on record to demonstrate that the deceased was engaged as a driver by owner of the vehicle. He further argued that the deceased being real brother of the owner of the vehicle, was driving the same otherwise than in his capacity as an employee/ workman and this extremely important aspect of the matter was ignored by the learned Commissioner. He also argued that the learned Commissioner erred in not appreciating that the Claim Petition was collusive and in the absence of there being any evidence to demonstrate that there was a relationship of employer and employee between the deceased and the owner of the vehicle, the claim could not have been allowed by the learned Commissioner. No other point was urged.
15. On the other hand, learned counsel appearing for the respondents/ claimants submitted that there was nothing wrong with the order passed by the learned Commissioner, as once the relationship of employer and employee stood accepted by the employer, who was impleaded as a respondent in the Claim Petition, nothing more was required to be proved by the claimants to demonstrate the fact that the deceased was an employee of the employer. They further argued that the claim ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 12 .
petition was not collusive as was evident from the fact that in the O.D. Claim, the factum of the deceased driver being his real brother was duly disclosed by the insured and the O.D. Claim was honoured by the Insurance Company knowing fully well the relationship of the deceased driver with the owner of the vehicle.
application filed
r to
They further argued that not only this, even the claimants in the under Section 22 of the Workmen's Compensation Act, had categorically mentioned therein that the deceased was employed with his vehicle as driver by Suresh Gopen, who was his real brother. They also submitted that as it was the allegation of the Insurance Company that the claim was collusive, therefore, onus to prove the same was upon the Insurance Company, which it had failed to discharge. On these basis, they prayed that the appeal being devoid of any merit be dismissed.
16. I have heard learned counsel for the parties and have also gone through the record of the case as well as the order impugned.
17. I have already discussed the facts of the case in detail hereinabove. Similarly, I have also discussed in detail the ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 13 .
findings which were returned by the learned Commissioner in the order which stands impugned by way of this appeal.
18. It is not in dispute that deceased Dinesh Gopen was driving the ill-fated vehicle on 21.07.2007, when the same met with an accident in which he lost his life. It is also not in dispute r to that the vehicle in issue was duly insured with the present appellant/Insurance Company. The Certificate-cum-Policy Schedule of the vehicle in issue is on record as Ext.RW1/A. Perusal thereof demonstrates that the Policy was valid from 07.10.2006 to 06.10.2007. In other words, as on the date when the accident took place, this Policy was in existence. Contents thereof further demonstrate that the Policy included the legal liability to the driver.
19. Though it was the stand of the Insurance Company before the learned Commissioner that in case it stood proved that the deceased was an employee of the owner of the vehicle, then also the Insurance Company was not liable to compensate the claimants as there was breach of the conditions of the policy by the insured as the deceased was not possessing a valid driving licence to drive the vehicle, however, record demonstrates that no evidence was lead by the Insurance ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 14 .
Company to demonstrate and prove that (a) the deceased was not possessing a valid driving licence to drive the vehicle in issue as on the date when the accident took place and/ or (b) the conditions of the Policy were willfully breached by the insured.
20. Thus, it is evident from the record that on the date when the accident took place, the deceased was driving the ill-
fated vehicle in his capacity as its paid driver, which vehicle was duly insured with the appellant/Insurance Company and there was no breach of the conditions of the Insurance Policy by the insured.
21. The owner of the vehicle i.e. respondent No.1 before the learned Commissioner admitted in his reply so filed before the learned Commissioner that the deceased was engaged by him as a driver with the ill-fated vehicle who died in the course of employment and at the relevant time he was being paid Rs.3,000/- per month as salary and Rs.1,800/- as diet money.
There has been no concealment of the factum of the relationship of the deceased and employer as is evident from the pleadings of the parties. The claimants themselves stated in the Claim Petition that the deceased was the real brother of the employer.
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22. In law, there is no bar or prohibition that a real brother cannot be engaged as an employee. As it was the allegation of the Insurance Company that the claim preferred by the claimants before the learned Commissioner was collusive with the owner of the vehicle and further that there was no relationship of employer and employee between the deceased and the owner of the vehicle, the onus to prove the same, but obvious was upon the Insurance Company. As I have already mentioned hereinabove, there is not even an iota of evidence placed on record by the Insurance Company to substantiate that either the Claim Petition was collusive or that there was no relationship of employer and employee between the deceased and the owner of the vehicle.
23. In the light of the fact that the owner of the vehicle had admitted deceased being engaged by him as a driver, nothing more was required to be proved by the claimants in view of the law laid down by Hon'ble Supreme Court in T.S. Shylaja Versus Oriental Insurance Company & Another, (2014) 2 SCC 587, in which judgment, Hon'ble Supreme Court has held as under:-
"10. The Commissioner for Workmen's Compensation had, in the case at hand, appraised the evidence adduced before him and recorded a finding of fact that the deceased was indeed employed as a driver by the owner of the vehicle no matter that the owner happened to be his brother. The ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 16 .
finding could not be lightly interfered with or reversed by the High Court. The High Court overlooked the fact that the respondent owner of the vehicle had appeared as a witness and clearly stated that the deceased was his younger brother, but was working as a paid driver under him. The Commissioner had, in this regard, observed:
"After examining the judgment of the Andhra Pradesh High Court relied upon by the second opponent it is seen that the owner of the vehicle being the sole witness has been unsuccessful in establishing his case but in this proceeding the owner of the vehicle has appeared before this Court even though he is a relative of the deceased, and has submitted in his objections, even evidence that even though the deceased was his younger brother he was working as a driver under him, and has admitted that he was paying salary to him. The applicant in support of his case has submitted that Hon'ble High Court judgment in United India Insurance Co. Ltd. v. Yallappa Bhimappa alagudi which I have examined in depth which holds that there is no law that relatives cannot be in employer- employee relationship. Therefore it is not possible to ignore the oral and documentary evidence in favour of the applicant and such evidence has to be weighed in favour of the applicant. For these reasons I hold that the deceased was working as driver under first opponent and driving Toyota Quails No.KA 02 C 423, that he died in accident on 3-9-2000, that he is a 'workman' as defined in the Workmen's Compensation Act and it is held that he has caused accident in the course of employment in a negligent fashion which has resulted in his death".
11. The only reason which the High Court has given to upset the above findings of the Commissioner is that the Commissioner could not blindly accept the oral evidence without analyzing the documentary evidence on record. We fail to appreciate as to what was the documentary evidence which the High Court had failed to appreciate and what was the contradiction. If any, between such documents and the version given by the witnesses examined before the Commissioner. The High Court could not have, without adverting to the documents vaguely referred to by it have upset the finding of fact which the Commissioner was entitled to record. Suffice it to say that apart from appreciation of evidence adduced before the Commissioner the High Court has neither referred to nor determined any question of law much less a substantial question of law existence whereof was a condition precedent for the maintainability of any appeal under Section 30. Inasmuch as the High Court remained oblivious of the basic ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 17 .
requirement of law for the maintainability of an appeal before it and inasmuch as it treated the appeal to be one on facts it committed an error which needs to be corrected ".
24. This judgment has also been gainfully relied upon by this Court in FAO (WCA) No.483 of 2007, titled as Oriental Insurance Company Versus Hima Vati and another, decided on 19.12.2016, in which this Court further held that it was settled law that Workmen's Compensation Act was a piece of beneficial legislation and thus was liable to be construed liberally to impart substantial justice to the dependents of the victim of an accident.
25. In this case, the vehicle in issue was duly insured with the appellant/ Insurance Company and the Insurance was valid as on the date when the unfortunate accident took place. At the cost of repetition, I state that it has not been proved by the appellant on record that there was any breach of the Insurance Policy at the behest of the insured. That being the case, the Insurance Company otherwise also cannot be permitted to defeat the claim as the parents of deceased workman on hyper technical grounds.
26. There is nothing placed on record by the Insurance Company to prove that the deceased was otherwise gainfully employed or engaged somewhere else. Thus, in the absence of ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP 18 .
any such evidence being on record and in the light of admission being there of the employer that the deceased was duly engaged by him as a driver with his vehicle, who incidently also happened to be of his real brother, it cannot be said that the learned Commissioner erred in allowing the claim application. This is more so for the reason that it is an admitted fact that the O.D. Claim, which was submitted by the owner of the vehicle with the Insurance Company, in which the factum of the deceased driver being his brother stood disclosed, was duly honoured by the Insurance Company. Substantial question of law stands answered accordingly.
27. In view of the findings returned hereinabove, as this Court does not finds any infirmity with the order which stands impugned by way of this appeal, present appeal being devoid of any merit is dismissed. No order as to costs. Pending miscellaneous application(s), if any, stand disposed of. Interim order, if any, stands vacated.
(Ajay Mohan Goel) Judge May 29, 2020 (Rishi) ::: Downloaded on - 01/06/2020 20:23:00 :::HCHP