Himachal Pradesh High Court
Rohit Walia vs National Insurance Co. Ltd. And Anr. on 6 June, 2005
Equivalent citations: IV(2005)ACC64, 2006ACJ1795
Author: Deepak Gupta
Bench: Deepak Gupta
JUDGMENT Deepak Gupta, J.
1. This appeal under Section 30 of the Workmen's Compensation Act (hereinafter referred to as 'the Act'), is directed against the award of the Commissioner, Workmen's Compensation (Rural), Shimla in Case No. 3 of 1995 whereby he dismissed the petition filed by the claimant.
2. The allegations in the claim were that claimant Rohit Walia had been employed by his brother, Ramesh Kumar, as a driver on Swaraj Mazda No. HIS 3093. It was further alleged that while he was driving the said vehicle, the same met with an accident on 7.1.1994 resulting in serious injuries to the claimant. As a result of injuries, he suffered 100 per cent disability. The owner of the vehicle did not deny the relationship of employer and employee and also did not deny the wages being paid to the deceased. It was, however, submitted that since the vehicle was duly insured, the liability to pay compensation is that of the insurance company. The insurance company took up various pleas. One of the pleas taken was that the petitioner was not driving the vehicle during the course of employment and that he was not employee of Ramesh Kumar. It was also alleged that unauthorised persons were being carried in the vehicle. It was also averred that the petition is collusive. It was also alleged that driver did not have a valid driving licence.
3. The Commissioner has come to the conclusion that it cannot be believed that the younger brother would employ an elder brother as a driver of the truck. He has further held that the petitioner was only in possession of learner's licence and as such the insurance company is not liable.
4. Mr. Romesh Verma, learned Counsel appearing on behalf of the claimant, has submitted that the approach of the Commissioner is not correct. He states that a learner's licence is a valid licence as held by the Apex Court in National Insurance Co. Ltd. v. Swaran Singh . He also submits that there is no bar to a younger brother employing an elder brother. On the other hand, Mr. Deepak Bhasin, the learned Counsel appearing on behalf of the insurance company, has supported the award. He further submits that holder of a learner's licence could not have driven a transport vehicle in view of Section 7 of the Act. He also urges that no record has been produced by the owner of the vehicle to prove that in fact claimant was employed by him.
5. So far as first question is concerned, the claimant states that he was employed by the owner. The owner admits this fact. Insurance company alleges that since they are brothers, there is collusion between them. The mere allegation by the insurance company is not sufficient. The insurance company could have given notice to the owner of the vehicle to produce certain documents such as logbook which admittedly was not given in the case. A perusal of the logbook would have shown who was driving the truck normally. In the absence of any evidence to the contrary the statement made by the claimant and the owner cannot be disbelieved and it is, therefore, held that the claimant was employed by the owner.
6. So far as the question of validity of the learner's licence is concerned, in view of the judgment of the Supreme Court in Swaran Singh's case, 2004 ACJ 1 (SC), the learner's licence is as good as any other licence. The contention on behalf of the insurance company is that the learner's licence could not be used to drive a transport vehicle. Mr. Bhasin has relied upon Section 7 of the Act which reads as follows:
7. Restrictions on the granting of learner's licence for certain vehicles.
(1) No person shall be granted a learner's licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.
(2) No person under the age of eighteen years shall be granted a learner's licence to drive a motor cycle without gear except with the consent in writing of the person having the care of the person desiring the learner's licence.
7. This argument on the face of it appears attractive. No person can be given even a learner's licence to drive a transport vehicle unless he has held a valid driving licence to drive a light motor vehicle for at least one year. However, this argument cannot be accepted in this case since Section 7 relied upon has only come into force w.e.f. 14.11.1994. Prior to 14.11.1994 Section 7 of the Act reads as follows:
7. Restrictions on the granting of learner's licence for certain vehicles. (1) No person shall be granted a learner's licence
(a) to drive heavy goods vehicle unless he has held a driving licence for at least two years to drive a light motor vehicle or for at least one year to drive a medium goods vehicle;
(b) to drive a heavy passenger motor vehicle unless he has held a driving licence for at least two years to drive a light motor vehicle or for at least one year to drive a medium passenger motor vehicle.
(c) to drive a medium goods vehicle or a medium passenger motor vehicle unless he has held a driving licence for at least one year to drive a light motor vehicle.
8. The accident in the present case occurred on 7.1.1994. The law as it stood at the time of accident did not lay down any condition as is there in the present Section. Only if a person wanted to get a licence for heavy goods vehicle, heavy passengers motor vehicle or medium goods vehicle or medium passengers motor vehicle was it necessary that he should have held a licence to drive a light motor vehicle for one year.
9. this Court in National Insurance Co. Ltd. v. Shangri , has held that a licence permitting a person to drive light motor vehicle would also permit him to drive a transport vehicle the weight of which does not exceed 7500 kg. The court held as follows:
(3) A conjoint reading of the aforesaid two Sub-sections undoubtedly reveals that a goods vehicle can also be a transport vehicle and a light motor vehicle at the same time, provided its unladen weight does not exceed 7500 kg, (4) On the record of the Tribunal is the document marked as Exh. RB which is the copy of the registration certificate of the vehicle involved in the accident which even though styles the vehicle as a light goods vehicle yet, in column No. 14 against the entry of 'unladen weight' specifies the weight of the vehicle as 2510 kg.
(5) The aforesaid therefore means that the vehicle in question squarely fell within the category of a 'light motor vehicle' and since admittedly the driving licence in question authorised the driver to drive every light motor vehicle, it cannot be said that the licence was invalid.
10. In the present case also registration certificate is on record as Exh. R3. It shows that the unladen weight of the vehicle was 2420 kg. and the registered laden weight 5990 kg. The aforesaid judgment is, therefore, fully applicable to the facts of the present case also. Therefore, it is held that the respondent insurance company is liable to pay the compensation under the Act.
11. The compensation has to be paid in accordance with the provisions of the Act as they stood at the time of the accident. The maximum wages at the relevant time could be taken as Rs. 1,000 per month. In the case of permanent disablement, 50 per cent of these wages had to be multiplied by the relevant factor. The claimant was aged 20 years at the time of the accident and, therefore, the compensation payable is Rs. 1,12,000. The claimant is also held entitled to interest at the rate of 12 per cent per annum on this amount w.e.f. 6.4.1995 till deposit of the amount. The rate of interest is granted at the rate of 12 per cent per annum keeping in view the judgment of this Court passed in Oriental Insurance Co. Ltd. v. Man Bhadur .
The appeal is allowed in the aforesaid terms with no Order as to costs.