Telangana High Court
The New India Assurance Co Ltd., ... vs Nemmoju Janitha , Jinitha, Nalgonda ... on 23 June, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.548 OF 2016
JUDGMENT:
Aggrieved by the order dated 20.05.2016 in W.C.Case No.21 of 2011 and W.C.Case No.106 of 2012 (F) passed by the Commissioner for Employees' Compensation and Assistant Commissioner of Labour, Nalgonda, the opposite party No.2 - insurance company has filed the present appeal.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the Commissioner.
3. The brief facts of the case, which necessitated the opposite party No.2 - insurance company to file the present appeal are as under.
i) The applicants have filed an application under the provisions of the Workmen's Compensation Act, 1923 claiming compensation of Rs.5,00,000/- for the death of deceased. The applicant No.1 is the wife and applicant Nos.2 and 3 are the parents of the deceased. The deceased worked as driver on a lorry bearing No.AP 24 V 6092 under employment of opposite party No.1 and the said lorry was insured with opposite party No.2 and policy was valid from 03.02.2010 to 02.02.2011. On 2 01.05.2010 the deceased was proceeding from Hyderabad to Vijaywada on duty as a driver on the said lorry and when he reached the outskirts of Panthangi Village, an unknown vehicle driver drove the same in rash and negligent manner at high speed and dashed the lorry of the deceased and fled away. As a result the front portion of the lorry was damaged; deceased sustained severe injuries and died on the sport in the lorry cabin. The Police, Choutuppal of Nalgonda District registered a case in Crime No. 99 of 2016 under Section 304-A of the Indian Penal Code.
ii) The deceased was paid a sum of Rs.8,000/- per month, batta of Rs.100/- per day by opposite party No.1 and the same was being contributed by the deceased to the applicants for the maintenance of the family. The deceased was aged about 24 years by the date of the accident. The deceased died during the course of his employment under opposite party No.1. Thus, the applicants being dependants of the deceased claimed an amount of Rs.5,00,000/- as compensation from opposite party Nos.1 and 2.
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iii) The opposite party No.1 failed to file any counter in spite of receiving notice and thereby he was set exparte.
iv) The opposite party No.2 filed counter denying age of the deceased, employment of deceased with opposite party No.1, mode and nature of accident, salary and batta of deceased, death of the deceased due to injuries in the accident etc. It is further contended that the deceased was not having valid driving license at the time of the accident, as such opposite party No.2 is not liable to pay any compensation and finally prayed to dismiss the application.
v) On behalf of the applicants, AW1 was examined and Exs.A1 to A4 were marked. On behalf of opposite parties, RW1 was examined and Exs.B1 and B2 were marked. The Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of deceased as Rs.5,689.25/- per month, by applying the factor '218.47' for the age of deceased being 24 years, has awarded compensation of Rs.6,23,707/- including stamp fee of Rs.1,242/- and Advocate fee of Rs.1,000/-.
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4. Aggrieved by the compensation awarded by the Commissioner, the opposite party No.2 - insurance company has filed the present appeal.
5. Heard both sides and perused the record.
6. The main contention of the learned counsel for the insurance company is that the deceased was not having valid driving license at the time of the accident and Ex.B2 i.e., the endorsement made by Motor Vehicle Inspector in his report and issuing challan for not possessing driving license by the deceased was brought to the notice of the authority, however, the authority did not consider the said plea. A perusal of Ex.B2 Motor Vehicle Inspector Report discloses that the Motor Vehicle Inspector has issued challan for 'without driving license'. It is an admitted fact that the deceased died in the accident. At column No.18 of Ex.B2, the name and address of the legal heirs of the deceased were shown as "not known". Thus, it is clear that the Motor Vehicle Inspector has not made any efforts to enquire the family members of the deceased with regard to the availability of the driving license of the deceased. The challan was issued for the absence of driving license with the deceased at the time of inspection. The Motor Vehicle Inspector has not reported that the deceased is not authorized 5 to drive the lorry. Moreover, the competent authority to give a finding with regard to the deceased holding driving license is the authorities of RTA. But RTA officials were not examined in this case to establish that the deceased is not authorized to drive the lorry. The opposite party No.2 failed to examine the Motor Vehicle Inspector, who has issued Ex.B2. Without examining any RTA officials or without producing any documents issued by such RTA officials, it cannot be said that the deceased was not authorized to drive the lorry as on the date of accident.
7. In an authority in United India Insurance Company Limited v. Annakutty and another1, the Kerala High Court held as under:
"3. It is an admitted case that the deceased workman was an employee of the insured and that the accident occurred while he was driving the jeep and the accident resulted in his death. It was on 28.3.2002. When the accident has resulted in the death of the workman, necessarily clause (b)(ii) of the proviso to Section 3(1) of the Act will have no application. Wilful disobedience of an order or rule expressly framed for the purpose of securing such safety like the insistence of a driving licence will have bearing going by the said provision, only in respect of any 1 2006 (1) SCT 225 6 injury not resulting in the death of the workman. Necessarily even if there was any contravention of the provisions of law, the compensation shall have to be paid by the employer where ever death occurs as a result of the accident. When there was a valid insurance policy, that liability shall be on the insurer. Therefore absence of driving licence cannot be taken as a reason to deny the compensation, in cases like this where the accident resulted, admittedly in the death of the workman."
8. In another authority in the Oriental Insurance Company Limited v. Jimmy2, the Kerala High Court held as under:
"3. The employer and employee relationship cannot be disputed by the appellant. The accident also is not disputed. In such circumstances, whether the workman did have a proper licence or not, whether he is a Wireman, a Boiler Operator or Driver as the case may be, is not a matter for the concern of the insurer. When the insurer had undertaken the liability that had fallen upon the insured, necessarily the insurer has to discharge that burden. If there is violation of the policy conditions, the insurer can seek appropriate remedy."2
2004 ACJ 900 7
9. The other Bench of this Court in New India Assurance Company Limited v. Smt.N.Anjilamma and five others3 held as under:
"13. A perusal of the judgment in Swaran Singh's case (1 supra), it would disclose that the Hon'ble Apex Court held that the breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub- section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.3
CMA No.4769 of 2004 decided on 27.10.2021 8 The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach"
to allow defences available to the insured under section 149(2) of the Act.
14. The contention of the learned counsel for the appellant that the said judgment is not applicable to the Workmen's Compensation Act is not considered valid. Though it was given under the Motor Vehicles Act, it is equally applicable to the Workmen's Compensation Act. The Insurer could not avoid his liability towards the insured unless he proves that the breach was so fundamental to have contributed to the cause of the accident. The deceased was not driving the vehicle at the time of the accident, but was crossing the road to attend the nature call by 9 stopping his lorry. As such, the policy conditions regarding driver not holding driving licence at the time of accident cannot be considered as fundamental breach that had contributed to the cause of the accident, so as to discharge the appellant from the liability. The above judgment also discloses that the absence of the driving licence cannot be a reason to deny the compensation when there was a valid insurance policy. As such, it is considered that the Commissioner had not committed any error in passing the award holding the Opposite Parties jointly and severally liable to pay compensation to the applicants. The order of the Commissioner was not contrary to law or probabilities of the case and was not liable to be set aside. Hence, I do not find any merits in the appeal and therefore, the same is liable to be dismissed."
10. Furthermore, the High Court of Andhra Pradesh in United India Insurance Company Limited v. Sri Mohd. Khaleel Khan and others4 held as under:
"9. The provisions of Workmen's Compensation Act no where prescribe that if a driver is employed he should possess valid licence as is required in terms of the mandate of Motor Vehicles Act 1939. This view is fortified by the judgment of Hon'ble High court of Karnatka titled Oriental Insurance Co. Ltd. v.
Hazira Begum and others reported in 4 CMA No.872 of 2005 decided on 14.10.2015 10 MANU/KA/0384/1994, it is profitable to reproduce the para 9 of the judgment herein:
"9. A scan of various decisions of the High court will disclose that where a workman was engaged in the employer's business and who was doing the very thing he was employed to do, then the mere fact that he was not acting strictly by the letter of law will not make the accident any the less 'arising out of and in the course of employment.' It follows, therefore, the owner and insurance company are both liable in such an event."
11. In view of the above finding of the learned Commissioner and also considering the principle laid down in the above said citations and since there is no ample evidence to show that the deceased was holding the license or not holding license to drive the lorry, it can be held that mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defence available to the insurer against either the insured or the third parties.
12. The other contention of the learned counsel for the insurance company is that applicant No.1 i.e., wife of the deceased admitted in her cross examination that she has not filed any documentary proof with regard to the employment and wages of the deceased, therefore, in the absence of any admission or proof of employment, wages, the Commissioner, coming to conclusion that deceased was employee of opposite party No.1 and the alleged accident and death occurred during 11 the course of employment is erroneous. As seen from Ex.B1 insurance policy, the owner of the lorry bearing No. AP 24 V 6092 is shown as P. Venkateswar Rao, who is the opposite party No.1 herein. However, P. Venkateswar Rao the owner of the lorry remained exparte before the learned Commissioner. If at all there is no employer and employee relationship between opposite party No.1 and deceased, no explanation is offered by the opposite party No.2 as to how the said lorry went into the hands of deceased. The opposite party No.2 has not made any efforts to examine the opposite party No.1 to disprove the contention of the applicants. In the absence of any such proof and since the lorry belonging to the opposite party No.1 was being driven by the deceased at the time of the accident, certainly an inference can be drawn that there is employer and employee relationship between opposite party No.1 and the deceased.
13. Furthermore, it is pertinent to note that the question whether there is employer and employee relationship between opposite party No.1 and deceased, is a question of fact but not question of law. The Honourable Supreme Court in North East 12 Karnataka Road Transport Corporation v. Sujatha5 held as under:
"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.
10. The aforementioned questions are essentially the questions of fact and therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.
11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.
12. In other words, the appeal provided under Section 30 of the Act to the High Court 5 (2019) 11 SCC 514 13 against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."
14. In view of the principle laid down in the above said authority, it is clear that the above contention of the appellant - insurance company is not based on a question of law but it is purely a question of fact, which cannot be raised before this Court as per Section 30 of the Workmen's Compensation Act.
15. In view of the above facts and circumstances, this Court is of the considered opinion that the learned Commissioner after considering all the above said aspects, has rightly awarded the compensation and thus, has not committed any irregularity or illegality while passing the impugned order. Hence, I do not see any reason to interfere with the impugned order.
16. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
__________________________ JUSTICE M.G.PRIYADARSINI Date: 23.06.2023 AS 14 THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI Civil Miscellaneous Appeal No.548 OF 2016 Dated: 23.06.2023 AS