Allahabad High Court
The New India Insurance Company Ltd. vs Hoti Lal & Another on 31 January, 2018
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD [A.F.R.] Reserved On : 05/01/2018 Delivered On :31/01/2018 Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 1302 of 2006 Appellant :- The New India Assurance Company Ltd. Respondent :- Hoti Lal & Another Counsel for Appellant :- Rakesh Bahadur Counsel for Respondent :- Nigamendra Shukla Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Rakesh Bahadur, learned counsel for appellant and Sri Nigemndra Shukla, learned counsel for respondent. None appeared for the owner.
2. This First Appeal From Order has been filed under section 30 of Workmen's Compensation Act, 1923 ( hereinafter referred to 'Act, 1923') by The New India Assurance Company Limited, being aggrieved by order dated 9.3.2006 passed by Commissioner, Workmen Compensation Act, 1923 and Assistant Labour Commissioner, Bulandshahar in W.C.A. No.41 of 2003 whereby compensation of Rs.4,42,740/- for the death of the employee employed by the present respondent no.2 now represented by 2/1 was granted.
3. Claimant Hoti Lal had passed away during the pendency of this appeal and he has been represented and substituted by his legal heirs there is assassinate dispute amongst the heirs. Claimant preferred WC Case No. 41/03 before Assistant Labor Commissioner, Bulandshahar who decided the said matter .
4. While admitting this appeal and issuing notice, the Court on 10.5.2006 passed the following order :-
"Admit.
Issue notice.
The appellant has deposited the entire amount awarded before the Workmen Compensation Commissioner, Bulandshahar. A certificate of deposit has been filed. The appellant has urged that in view of the decision of the Apex Court in P.J. Narayan Vs. Union of India and others 2004 ACJ 452, liability of interest cannot be fastened upon the Insurance Company and interest can only be awarded against the employer.
Out of the amount deposited by the appellant half of the amount shall be paid to the claimant / respondent no. 1 without furnishing any security and the remaining half of the amount shall be paid to them after furnishing security to the satisfaction of the Workmen Compensation Commissioner, Bulandshahar. The award dated 8.3.2006 passed by the Workmen Compensation Commissioner, Bulandshahar shall remain stayed so far as it awards interest against the appellant."
5. Except passing the aforesaid order, the Court did not frame any questions of law. However, as the questions of law are formulated by the appellant which are 12 in number are to be decided as arguments are advanced by Shri Rakesh Bahadur-Advocate on all . The same are reproduced herein below : -
"1. Whether in view of the judgment reported in JT 1993(1) SC 213 the failure of the Tribunal to frame issue & record reasons thereon has rendered the impugned judgment dated 9.3.2006 void ab-initio and nonest in law ?
2. Whether the award dated 9.3.2006 is not a judgment in the eyes of law inasmuch as the mandatory provisions of Rule 28 & 32 of Workmen Compensation Rules, 1924 have not been complied with ?
3. Whether the compensation awarded under the Workmen's Compensation Act, 1923 is vitiated since no issues were framed causing material prejudice to the appellant company ?
4. Whether the award dated 9.3.2006 is liable to be set aside on the ground that the Tribunal had failed to frame issues & pass a judgment after recording its reasons for the findings on the issues involved in the matter ?
5. Whether the award of interest against the appellant company is also arbitrary & illegal because no claim and intimation regarding accidental death of the employee was ever given by the insured owner of Eicher Mini Truck No. UP 81 H-9718 to the insurance Company and as such in law only the owner of the offending truck could have been held liable for the liability of payment of interest.
6. Whether in view of the decision of Hon'ble Supreme Court reported in ACJ 2004 452 P.J. Narayan Vs. Union of India & Others, the Tribunal has committed gross illegality in fastening liability of interest on the appellant company when the insurance company was statutorily not liable to payment of interest on the amount of compensation awarded ?
7. Whether the Tribunal has failed to record a finding in law that the death of deceased arose out of & in course of employment and in absence of any such finding the impugned award is liable to be set aside ?
8. Whether the finding that the deceased Lekhraj Singh had been employed at monthly salary of Rs.4,000/- along with Rs.50/- as Khuraki on Truck No. 81 H-9718 is based on no evidence and is as such liable to be set aside ?
9. Whether the finding of the Tribunal that the deceased died in the course of his employment is proved by the FIR is justified in law when in the FIR the deceased was found to be sitting on the Cleaner side and not actually driving the vehicle in question ?
10. Whether the claimant was not entitled to any interest prior to 18.10.2005 in view of the fact that the claimant had himself delayed the proceeding inasmuch as it was only vide order dated 18.10.2005 that he got his other claim petition being WCA No. 39/03 dismissed on 18.10.2005 and in fact the proceeding could start only from that date ?
11. Whether the impugned award is even otherwise excessive and against all norms and is liable to be set aside ?
12. Whether the impugned award dated 9.3.2006 passed by the learned Commissioner is wholly arbitrary, illegal and against the evidence on record and is liable to be set aside ?
6. The factual data of this case is that deceased Lekhraj was 23 years of age when he died. He was employed as a driver on Truck No. U.P.81 H-9718 and he was being paid a sum of Rs.4,000/- per month as wages and Rs.50/- towards his daily allowance and was an employee as per the Employee Compensation Act, 1923 ( hereinafter referred to as "Act, 1923") earlier known as Workmens' Compensation Act, 1923.
7. On 25.9.2003 when the deceased was on the truck and had purchased tomatoes and was going from Gwalior to Aligarh at about 7.30 p.m. on the Agra Bombay National Highway near Muraina Dhoolpur as the road was in dilapidated condition dashed with the stationary truck. The truck in which the deceased did not see any light or any indicator on the vehicle which was stationary and because of that Lekhraj Singh was injured and he died on the spot. An intimation to the Murana Police Station was given on the very same day at about 8.30 p.m. under Section 340A IPC which was noted as case no. 92/2003. The dead body of the deceased was taken for postmortem on the next date and the same was done and it revealed that as his death occurred due to the said accidental injuries an FIR was lodged as he was employed by respondent no.1 ( owner) and the vehicle was insured by the Insurance Company. The Insurance Company was also made a party before the Commissioner.
8. The said matter came to be registered as Case No.41/03. Notice was issued and the date for hearing was fixed on 23.2.2004. During this period, the original owner passed away. Widow and his son were joined as a defendants. Respondent no.1-Smt Sanju Devi widow of Gajendra Yadav filed written statement. Gajendra Yadav also had filed his reply. Owner in his reply has accepted that the deceased was in his employment but have denied the averment in paragraph no. 2 and 3 have accepted that the FIR was filed and has accepted and contended that as the vehicle was insured with respondent no. 2, they would be liable to pay compensation for the death of the deceased as the deceased was their employee and he produced all the documents also. Respondent no. 2 (Insurance Company) has filed its reply and have accepted that the vehicle was insured with it but have contended that the driver did not have proper driving licence and no notice whatsoever was ever given by the claimants to the Insurance Company and that the Tribunal did not have territorial jurisdiction to hear the matter.
9. Tribunal examined witness on the side of the claimant. Hoti Lal was examined. He was not an eye witness but he stated on oath the salary which was earned by deceased by working on truck involved in the accident and has withstood cross examination regarding the income of the deceased . The mother of the deceased, namely; wife of Hoti Lal had passed away long back and Hoti Lal was a person living with Lekhraj Singh (deceased). The driving licence of Lekhraj Singh bearing Licence No. 72531 issued by Road Transport Offier, Aligarh on 15.10.1998 has been produced on record. Tribunal in ftjg esa bu lc ckrksa dk gksuk Li"V gqvk gS and thereafter has started discussing, the evidence thread back and has came to the conclusion and decided in favour of the claimant.
10. The fact that death occurred is accepted by heirs of the deceased Gajendra Yadav (owner) and Amichand Singh who was examined on oath and in his evidence it is stated that before one and half year, Gajendra Yadav had employed the deceased on his old vehicle by paying the monthly salary of Rs.3800/- and Rs.50/- towards his daily allowance. When the new truck was brought before two months, the salary was increased to Rs.4,000/- and the allowance was retained to Rs. 50/- towards daily allowance. Hence, Tribunal believed that he was in the employment of Gajendra Yadav and held that . Just because there was no document it was not necessary to reject the same that he was in employment. PW2 stated that Gajendra Yadav passed away on hearing of such an grave accident . PW-2 Amichand Singh was also present when the salary of the deceased was fixed. Even in the cross examination, counsel for Insurance Company could not illustrate and bring out any such fact which would show that the deceased was not employed with other of respondent. Tribunal held that nothing was proved by Insurance Company that deceased did not have a valid driving licence and it was not proved by Insurance Company that the deceased was not employed by the opponent. There is a categorical finding of the Tribunal that the deceased died out of the employment injuries, which was proved by the postmortem. His income has been considered to be Rs.4,000/- and that is how as per the schedule to the Act the said compensation is awarded with 4% interest.
11. This judgment is challenged by the Insurance Company and insurance company has raised several questions of law and argued which were never argued or substantiated by the Insurance Company before the Workmens' Compensation Commissioner. It would be relevant for this Court to have a glance at the written statement filed by the Insurance Company which was filed after a long time and after requesting Commissioner to recall its order of ex-parte hearing was done and then reply was filed.
12. In their reply, reply of denial is filed and have replied that they are not liable to pay any amount including the interest or penalty and they have filed a further reply contending that the age and income of deceased be proved. It is further contended that it was to be proved that the deceased was a driver on the said vehicle and that his death occurred due to the injures caused in the said accident. They have accepted that the vehicle involved was insured with it but have contended that they are not liable to pay any interest on the said amount and have contended that the driver did not have valid driving licence and they were not put any notice by either the owner rather the employer nor the employee and that the Tribunal Workmen Compensation Commissioner did not have territorial jurisdiction to hear the matter.
13. On this reply being filed, Tribunal started examining the witness and came to the finding as stated herein above in the factual scenario. Question of law no. 1 to 4 are dealt together as they are interwoven.
14. The submission made by Sri Rakesh Bahadur, learned counsel for appellant so as to bring home his submission that the judgment of the Commissioner is void ab-initio as it failed to frame issue and record reparte reasons and it is not a judgment in eyes of law as mandatory provisions of Rules 28 and 32 of workmens' Compensation Rules have not been complied with and the award requires to be set aside in view of the decision of Apex Court in the case of Rameshwar Dayal Vs. Banda (Dead) through his Lrs. and another, JT 1993(1) SC 213 and has submitted that this question goes to the root of the matter and the mandatory provisions having not been complied with. Appeal requires to be allowed.
15. Per-contra Sri Nigmendra Shukla, learned counsel for respondent has relied on the decision of Orissa High Court in New India Assurance Company Ltd. Vs. Braja Kishore Sutar, 1991 LawSuit (Ori) 38 and has contended that the provision of framing issues is only directly and not compliance of the same would not vitiate the proceedings unless some prejudice has been caused. The parties knew the contentious is such between the parties.
16. It is submitted by Sri Rakesh Bahadur, learned counsel for appellant that the High Court decision rendered was before the decision in the case of Rameshwar Dayal Vs. Banda (Dead) through his Lrs. and another (supra) and, therefore, it has not presidential value and it is a juudgment of another High Court. Sri Rakesh Bahadur-Advocate had relied another judgment of Orrisa High Court in Smt. K. Mallika Vs. Executive Engineer, Potteru Irrigation Division, Balimela, 2000(1) T.A.C. 549 ( Ori) and other judgment of Delhi High Court in National Insurance Company Ltd. Vs. Mt.Param Pal Singh, 2008(3) T.A.C. 378 ( Del.).
17. In the light of this the controversy raised before this Court, all these aspects raised and submitted in substantial questions of law no. 1, 2, 3 and 4 are decided together as they are interwoven.
18. Before I advert to the aforesaid decisions the object of the Act, 1923 will have to be gone into.
19. In light of these decisions with which the earlier Workmens' Compensation Act was introduced that it is a piece of social and welfare legislation.
20. In view of this, it would now be necessary to refereed to the interpretation of the statute. No particularly whether the words 'shall' and 'may' and 'how' they should be construed and whether the said order is a judgment or not. I would with the term 'shall' as used in Rule 28 read with Rule 32 of The Workmen's Compensation Rules, 1924 which is reproduced herein below:-
"Framing of issues. -- (1) After considering any written statement and the result of any examination of the parties, the Commissioner shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to him to depend.
(2) In recording the issues, the Commissioner shall distinguish between those issues which in his opinion concern points of facts and those which concern points of law."
21. We will have to go to the term as is explained in the statute and to see whether the terms 'shall' was intended to be a mandatory provisions or a directory provisions. This Court is required to consider nature and design of the statute and also the consequence which would fall from statute one way or other. The impact of other provisions whereby the necessity of complying of the provisions in question is avoid. The object of the enactment if not visited with any penalty or the other consequence the term has to be treated as imperative term holding the term mandatory shall in consequence will have created to the claimant without very much furthering object of the enactment it has to construed as directory and, therefore, the word 'shall' in the backdrop of the object of the statute will permit this Court to hold that the word 'shall' has to be construed as directory. I am fortified in my view by the observations made in Liverpoal Borough Bank Vs. Turner, (1986) 30 LJ Ch 379 page 318 which decision has been approved by the Apex Court in Chandrika Prasad Yadav Vs. State of Bihar, AIR 2004 SC 2036 page 2042 and reference is made in Principles of Statutory Interpretation and also the Privi Council's decision in Montreal Street Railway Vs. Normandin, AIR 1917 PC 142, in this case the aforesaid view is taken as the requirements for judgment complied with as the judgment has discussed all objection raised by the Insurance Company and the denial thereof. This takes this Court to the order under 41 Rule 12 of Code of Civil Procedure and the scope of the Rule read with the facts of this case. parties were fully aware of their respective case and that has been thread bare discussed.
22. Thus omission to frame issues has not been considered fatal in the facts before us . The decision of the Apex Court relied by learned counsel for appellant was the realm of the Provincial Small Causes Court Act and, therefore, the same is not applicable and his submission that decision of Orissa High Court in New India Assurance Company Ltd. Vs. Braja Kishore Sutar (supra) is not applicable in this case sans merits hence, the substantial question that the judgment is nonest is rejected even on the fact that he raising and framing of issues is a question of procedural Law.
23. He does not go to the root of the matter in the fact of this case as the main issue was as to whether the deceased died out of employment , injuries and what was the compensation payable , Tribunal has answered this main issue by elaborate discussion and has discussed the evidence led by the parties as per the procedure, therefore, it is always held that procedure is handmaid of law and procedure law are such which would not permit this Court to hold the judgment to be void. The requirement of framing issues is a part of procedural Law which is handmaid of justice and it cannot be used to defeat a provision of beneficial legislation for grant of amount to the claimants who are heirs of the deceased - employee.
24. This takes this Court to further ground raised namely substantial question no 5 and 6, it is submitted that the Insurance Company is not suppose to pay interest and the appeal was admitted relying on the decision of P.J. Narayan Vs. Union of India and others, 2004 ACJ 452.
25. It is submitted by Sri Nigmendra Shukla, learned counsel for respondent that recently the Apex Court in Oriental Insurance Company Limited Vs. Siby George and others, (2012) 11 SCC 540 that interest has to be paid by the Insurance Company whereby the decision in P.J. Narayan Vs. Union of India and others(supra) and the others matter has been clarified. Hence, I need not further delve into the said substantial question of law which is herein answered against appellant. As far as so called substantial question no. 7, 8 and 9 are concerned they are in fact not mix question of law as submitted by learned counsel for appellant but are question of fact but as they are argued at length and stress is placed on the FIR as in it has been mentioned in the FIR being lodged so as to contend that deceased did not die in the course of employment and he was not the employee on the truck. He has further relied on two decisions of Supreme Court in Daya Kishan Joshi & another Vs. Dynemesh Systems Pvt. Ltd., 2017 0 Supreme(SC) 1031 and Syeda Rahimunnisa Vs. Malan Bi ( Dead) By Legal Representatives and another, (2016) 10 Supreme Court Cases 301.
26. Recently in First Appeal From Order No. 4022 of 2017 ( Om Pal Singh Vs. National Insurance Company Ltd. & 2 others ), decided on 19.12.2017, this Court has held that Commissioner and Motor Accident Tribunal are not civil Court and trappings of civil procedure should not be made fully applicable for the proceedings in the Tribunal. I am supported in my view, on the decision of Apex Court in United India Insurance Company Ltd. Vs. Anwari and another 2000(38) Alld page 761, thus the questions that the deceased died out of employment injuries is proved by the written statement filed by the owner just because at the time when the accident took place, he was said to be sitting besides the driver will not permit this Court to reject his claim once it is proved that he was in the truck because of his employment with the respondent truck owner. The Insurance Company has though heavily relied on the FIR and has relied on the decision of Apex Court in National Insurance Company Ltd. Vs. Mt.Param Pal Singh, 2008(3) T.A.C. 378 ( Del.) and on the decision of Orrisa High Court in Smt. K. Mallika Vs. Executive Engineer, Potteru Irrigation Division, Balimela, 2000(1) T.A.C. 549 ( Ori) cannot be invoked as there is no perversity in finding of the Authority below that the deceased died out of accidental injuries. The word arising out of employment has been explained by the Apex Court in Daya Kishan Joshi & another Vs. Dynemesh Systems Pvt. Ltd., 2017 0 Supreme(SC) 1031 and therefore this being a question of fact which has been proved to the hilt by the claimants, will not permit me to take a different view in light of the decision of the apex Court in Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) therefore, this question which is pure question of fact cannot be agitated without it being proved before the Trial Court. I am fortified in my view by the decision of Apex Court in Syeda Rahimunnisa Vs. Malan Bi ( Dead) By Legal Representatives and another ( supra) will not permit me to alter the finding on facts. Hence, the submission that the deceased died out of employment injuries is answered against the Insurance Company.
27. In appeal, though I have liberally permitted Sri Rakesh Bahadur-Advocate to argue on all the questions which according to him were important. However while going through the record, it is crystal clear that many of the grounds taken herein, namely framing of issues was never raised before the Commissioner. The parties went into the litigation fully knowing on what they were to lead the evidence. The question now cannot be agitated as it was never raised, during the trial as that was much prior to the judgment being delivered by the Authority. Insurance Company sat quite over this aspect and hence now it is not open for them to contend that the proceedings which are for the benefit of the claimant be defeated. They can not gain out of their mistake and even otherwise it does not go to the root of the matter.
28. There was dealt of the driver of truck just because he was found to be the sitting besides as mentioned in the FIR even if we go by the said factum he was on the truck for his service purpose and, therefore, now to contend that his death did not occur due to his employment is devoid of merits. The term in course of employment is a question of fact which is being proved before the Commissioner and the fact that it arose during his employment may be for the sort period, he was sitting besides the driver then also the employer has accepted that he was his employee. The insurer has not established that the deceased was not an employee by owner. Thus, the claim of compensation was maintainable and the statutory obligation of the employer under the Workmen's Compensation Act, the foundation which was the occurring of an accident out and in the course of employment. Thus, two different types of risk had been covered statutorily as well as by the terms of the insurance policy and the insurer could not escape his liability in respect of any of the two risks. In the similar set of fact the Karnatka High Court in Oriental Insurance Company Ltd. Vs. Kashim, 1996 (73) FLR 1596, 1996 II LLJ 172 (Kant) held that when truck driver employed by truck owner was traveling in that vehicle in course of his employment and because disabled due to accident by that vehicle, insurer would be liable for compensation payable under Workmen's Compensation Act. They cannot challenge the compensation in view of the judgment of Supreme Court in Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another (supra) . It is a cordial principle that if any incumbent has died while serving his master then unless it is not established by cogent evidence from employer that he has not died in discharge of his duty, it will be presumed that he has died in course of employment.
29. The question nos. 10, 11 and 12 are answered herein above and do not require for fresh hearing. The earlier petition was dismissed on technicalities with permission to file fresh petition and therefore, he is entitled to interest from the date of filing of claim petition which is subsequent in nature, hence question no. 10 is answered partly in favour of the Insurance Company. The Tribunal has granted only 4% interest which is in fact lesser then that stipulated under the Act.
30. The appeal sans merits and is decided against the Insurance Company. The interim relief shall stands vacated. The Commissioner to disburse the amount after hearing the widow of the deceased also as now the father has passed away and the heirs are litigating inter se for the compensation.
Order Date :- 31.1.2018 Mukesh