Karnataka High Court
Manager (Legal) vs Smt. Chandrakala on 18 August, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1
MFA No. 187 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL NO. 187 OF 2017 (EC)
Between:
Manager (Legal)
Bajaj Allianz General Insurance
Co. Ltd., Sri Hari Complex,
Seetha Vilas Road, Mysore,
Now represented by
Bajaj Allianz Gen.Ins. Co.Ltd.,
Golden Heights, 4th Floor,
#1/2, 59th 'C' Cross, 4th M Block,
Rajajinagar,
Bangalore - 560 010.
...Appellant
(By Sri.A.N. Krishna Swamy, Advocate)
And:
1. Smt. Chandrakala,
W/o. Late Manjegowda,
Now aged about 30 years
2. H.M. Hemalatha,
D/o. Late Manjegowda,
Now aged about 7 years,
Since minor represented
by natural guardian mother
the 1st respondent herein.
3. Amasegowda,
S/o. Late Thirumalegowda,
Now aged about 63 years
2
MFA No. 187 of 2017
4. Smt. Bhagyamma,
W/o. Amasegowda,
Now aged about 55 years
All r/o. Hugenahalli Village,
Hirisave Hobli,
Channarayapatna Taluk,
Hassan District-573116.
5. M.R. Venkatesh,
S/o. Srinivasa, Major,
Door No.135,
Near Padalamma Temple,
Devalapura Village and Hobli,
Nagamangala Taluk-571 432.
...Respondents
(By Sri. Lokesh B.G., Advocate for R-1 to R-4;
R2- minor represented by R-1;
R-5 - served and un-represented.)
****
This Miscellaneous First Appeal is filed under Section
30(1) of the Workmen's Compensation Act, 1923, with the
following prayer:
"Wherefore, the Appellant pray this Hon'ble Court to
call for records and to set aside the Judgment and Order
dated 14th July 2016 passed by the Court of Senior Civil
Judge and Commissioner for Employees Compensation
Employees' Compensation Commissioner, Nagamangala in
E.C.No.10/2014 and to pass such other order or orders as this
Hon'ble Court deems fit under the facts and circumstances of
the cases, in the interest of justice and equity."
This Miscellaneous First Appeal having been heard
through physical hearing/video conferencing hearing and
reserved on 04-08-2023, coming on for pronouncement of
judgment, this day, the Court delivered the following:
3
MFA No. 187 of 2017
JUDGMENT
The present respondents No.1 to 4 had instituted a claim petition under Section 7 of the Employee's Compensation Act, 1923 (hereinafter for brevity referred to as "the E.C. Act") in E.C.A.No.10/2014, before the Court of the learned Senior Civil Judge and Commissioner for Employee's Compensation, Nagamangala (hereinafter for brevity referred to as "the E.C. Court"), against the present respondent No.5 and the present appellant, arraigning them as respondents No.1 and 2 respectively, claiming a compensation of a sum of `13,60,000/- with interest thereupon for the death of one Sri. Manjegowda in the road traffic accident said to have taken place on the date 03-07-2012.
2. The summary of the case of the claimants/ petitioners in the E.C. Court was that, on the date 03-07-2012, while the deceased Manjegowda was driving a Tractor and Trailer bearing registration No.KA- 54/2334/2335 belonging to the first respondent therein (respondent No.5 herein) and was proceeding from 4 MFA No. 187 of 2017 Thoremallanayakanahalli towards Doddauppala, at about 4:30 p.m., over the Shimsha river, Ari Road, a buffalo suddenly came across the road, due to which, the driver of the said Tractor and Trailer i.e. Manjegowda lost his control over the vehicle and the said Tractor with Trailer capsized, resulting in Manjegowda sustaining injuries and succumbing to the same.
3. The petitioners therein (respondents No.1 to 4 herein) contended that, at the time of the road traffic accident, deceased Manjegowda was working as a driver under the respondent No.1 - Sri.M.R. Venkatesh (respondent No.5 herein) and was getting a monthly salary of a sum of `10,000/-. The family comprising of petitioners were depending on the earnings of the deceased. With this, the petitioners claimed a compensation of a sum of `13,60,000/- with interest.
4. In response to the summons served upon them, the first respondent - Sri.M.R. Venkatesh appeared before the Court through his Advocate and filed his Written 5 MFA No. 187 of 2017 Statement, wherein he contended that the deceased Manjegowda was not working under him as a driver of the Tractor and Trailer. On the date 03-07-2012, he (respondent No.1) had appointed one Sri. Chowdegowda as the driver of his Tractor and Trailer. While the said Chowdegowda was driving the Tractor and Trailer, the deceased suddenly came on the road, due to which, the said driver Chowdegowda lost his control over the vehicle and it capsized. In that regard, a case was registered against the said Chowdegowda. The respondent No.1 further contended that the accident was not due to the negligent act of driver Chowdegowda but it was due to the negligent act on the part of the deceased Manjegowda. He denied the relationship of employer and employee between himself and the deceased Manjegowda. With this, he prayed to dismiss the petition.
The second respondent therein (appellant herein) who is the insurer of the offending vehicle Tractor and Trailer filed its Written Statement, wherein it contended that, on the date of the accident, the vehicle was covered 6 MFA No. 187 of 2017 with commercial Class 'D' package policy. It further contended that, at the time of the road traffic accident, the deceased was going by walk and the Tractor and Trailer hit him inflicting injuries, due to which accidental injuries, the deceased died on the spot. It also contended that at the time of accident, one Sri. Chowdegowda, Son of Nagaraju was driving the Tractor and Trailer. Therefore, the petition is liable to be dismissed since the petitioners have not approached the Court with clean hands. It also contended that the deceased was not working as a driver under the first respondent - M.R. Venkatesh, as such, there was no employer and employee relationship between them.
5. Before the E.C. Court, on behalf of the petitioners, petitioner No.1 - wife of the deceased driver Manjegowda - Smt. Chandrakala got herself examined as PW-1 and also got examined one more witness Sri. Sathya as PW-2 and got marked documents from Exs.P-1 to P-11. On behalf of the respondents, one Smt. Thejeswani Chandrashekar, an Officer of the second respondent - 7 MFA No. 187 of 2017 Insurance Company was examined as RW-1 and the respondent No.1 - Sri.M.R. Venkatesh was examined as RW-2 and documents from Exs.R-1 to R-5 were got marked as exhibits. Later the evidence of RW2 was expunged since he did not tender himself for his cross examination.
6. Based on the pleadings of the parties, the E.C. Court framed the following points for its consideration:
1. Whether the petitioners prove that they are the Legal representatives of the deceased Manjegowda S/o. Amasegowda?
2. Whether the petitioners prove that the deceased Manjegowda S/o. Amasegowda comes within the purview of the word 'employee' under the provisions of the Employees Compensation Act?
3. Whether the petitioners prove that the injury caused to the deceased which resulted in his death was during the course of his employment under the respondents?
4. Whether the petitioners prove the age and income of the deceased?
5. Whether the petitioners are entitled for compensation? If so how much from whom?
6. What order?8 MFA No. 187 of 2017
7. After analysing the evidence and the materials placed before it, the E.C. Court, by its judgment and award dated 14-07-2016 partly allowed the petition filed by the petitioners with costs, awarding compensation of a sum of `8,20,400/- with interest at the rate of `12% per annum from the date of the accident, i.e. 03-07-2012 till its realisation and directed the respondent No.2 therein -
Insurer (appellant herein) to deposit the compensation amount within two months from the date of the said judgment. Being aggrieved by the said judgment and award passed by the E.C. Court, the appellant - Insurance Company has filed this appeal seeking to set aside the same.
8. Records were called for from the E.C. Court and the same are placed before this Court.
9. Learned counsel for the appellant (Insurance Company) is appearing physically before the Court.
10. Heard the argument of the learned counsel for the appellant (Insurance Company). Even though the appellant - Insurance Company in its memorandum of 9 MFA No. 187 of 2017 appeal has raised five questions as the substantial questions of law, however, the learned counsel for the appellant in his argument submitted that he would not canvass any of those questions or any grounds, except the aspect regarding the liability of the Insurance Company to indemnify in the absence of the deceased who was the driver of the Tractor and Trailer possessing a valid and effective Driving Licence as on the date of the occurrence of the road traffic accident.
Thus, he confined his argument only on the point of liability of the Insurance Company and contended that though it was the duty of the driver to give particulars of his Driving Licence to insurer under Section 134 (c) of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as "the M.V. Act"), however, since the driver in the present case himself has sustained injuries and succumbed to it, the owner should have given the details of the Driving Licence of the driver working under him. However, the owner of the vehicle who is respondent No.5 herein did not furnish any such details. Even in the 10 MFA No. 187 of 2017 absence of the same, the Insurance Company has established that the driver had no valid Driving Licence as at the time of the occurrence of the road traffic accident, as such, the Insurance Company is not liable to pay any compensation.
In support of his argument, he relied upon two judgments of the Hon'ble Apex Court, which would be referred to at the relevant stages herein afterwards.
11. In spite of granting several and sufficient opportunities, the learned counsels for the respondents did not address their arguments, as such, it was taken that no arguments were addressed from the respondents' side.
This matter was earlier reserved for judgment under the order dated 19-06-2023. However, after going through the file, since it was felt necessary to hear further in the matter, the appeal was listed for further hearing on the date 17-07-2023, on which date, the learned counsel for the appellant (Insurance Company) who alone was present, prayed for a short accommodation. As such, the matter could not be proceeded on the said date and it was 11 MFA No. 187 of 2017 again taken up on the date 26-07-2023. On the said day, none appeared in the matter either physically or through video conference. Even on the date 04-08-2023 also, there was no representation from either side. Hence, it was taken that no further argument was addressed by either side, as such, the matter was reserved for judgment.
12. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and also the records of the E.C. Court.
13. The substantial question of law that would arise for consideration in this appeal would be:
If the Insurance Company establishes that the driver of the vehicle involved in the road traffic accident did not possess a valid and effective Driving Licence and that his employer who is the owner of the offending vehicle was negligent in ascertaining whether his employee had a valid Driving Licence in force as on the date of the accident, can the Insurance Company be held liable to pay the compensation?12 MFA No. 187 of 2017
14. It is not in dispute that, before filing the application/petition in E.C.A.No.10/2014 before the E.C. Court, the petitioners had filed a claim petition under Section 166 of the M.V. Act in M.V.C.No.959/2013, however, no details are forthcoming as to in which Claims Tribunal, the said claim petition was filed by the petitioners. Still, the evidence of RW-1 that M.V.C.No.959/2013 was filed by the petitioners earlier and the said petition was got dismissed by the petitioners has not been denied in her cross-examination. Similarly PW-1 in her cross-examination has not denied a suggestion made to her that before filing the present petition, the petitioners had filed a claim petition in M.V.C.No.959/2013.
15. The learned counsel for the appellant (Insurance Company) in his argument submitted that, the said claim petition in M.V.C.No.959/2013 filed by the petitioners was withdrawn by them and thereafter the present petition was filed before the E.C. Court. Thus, it can be taken that before filing the present petition in E.C.A.No.10/2014, the 13 MFA No. 187 of 2017 very same petitioners had earlier filed a claim petition under Section 166 of M.V.C Act in M.V.C.No.959/2013. However, the appellant Insurance Company who had raised a question as a substantial question of law regarding maintainability of the E.C.A.No.10/2014 in the above background neither canvassed the said point in his argument nor pressed on the said point in his argument.
16. As observed above, the entire argument of the learned counsel for the appellant Insurance Company was neither with respect to maintainability of E.C.A. No.10/2014 before the E.C. Court nor about the occurrence of the road traffic accident in the manner alleged by the petitioners and the death of Sri. Manjegowda who was said to be the driver of the Tractor and Trailer bearing registration No.KA- 54/2334/2335 belonging to the respondent No.5 herein nor even regarding the alleged relationship of employer and employee between the present respondent No.5 who is the owner of the Tractor and Trailer and the deceased Manjegowda who was said to be the driver of the 14 MFA No. 187 of 2017 offending Tractor and Trailer at the time of the accident. On the other hand, as observed above, the only point of argument canvassed by the learned counsel is about the Insurance Company's liability in the alleged absence of the Driving Licence with the deceased Manjegowda at the time of the occurrence of the road traffic accident.
17. Even though the present appellant (Insurance Company), as respondent No.2 in E.C.A.No.10/2014 has denied the occurrence of the road traffic accident in the manner contended by the petitioners and stated that the accident has occurred while the deceased was going by walk at the accident spot and was hit by the said Tractor and Trailer due to which, he sustained injuries and succumbed to it, however, as observed above, the said contention was not pressed into service in this appeal. On the other hand, the learned counsel for the appellant (Insurance Company) has fairly submitted that, he would not dispute the finding of the E.C. Court that, the deceased Manjegowda was falling within the purview of the word 'employee' under the provisions of the E.C. Act 15 MFA No. 187 of 2017 as a driver of the Tractor and Trailer belonging to the respondent No.1 in the petition (respondent No.5 herein) and that he sustained injuries in the road traffic accident, arising out of and during the course of his employment and succumbed to it. Still, the evidence of PW-1 who is the petitioner No.1 and the evidence of one Sri. Sathya who was examined as PW-2, who claims himself to be an eye witness to the road traffic accident coupled with Exs.P-1 to Ex.P-7 would go to establish that, the deceased Manjegowda was working under the present respondent No.5 (respondent No.1 in E.C.A.No.10/2014) as a driver of the Tractor and Trailer bearing registration No.KA- 54/2334/2335 and while being the employee of present respondent No.5 and while driving the said Tractor and Trailer on the date 03-07-2012, he was involved in the road traffic accident wherein he sustained injuries and succumbed to it.
18. Though the present respondent No.5 (owner of the offending Tractor and Trailer) who was respondent No.1 in E.C.A.No.10/2014 has taken a contention in his 16 MFA No. 187 of 2017 Written Statement that there was no employer and employee relationship between himself and the deceased Manjegowda and also had led his examination-in-chief as RW-2, however, since he failed to appear for his cross- examination in spite of giving sufficient opportunities to him, the evidence given in his examination-in-chief was expunged. Therefore, it is appreciating the evidence placed before it about the occurrence of the incident which was in the form of a road traffic accident on the date 03-07-2012 involving a Tractor and Trailer bearing registration No.KA-54/2334/2335 being driven by the deceased Manjegowda, the E.C. Court has rightly held that the petitioners before it had proved the employer and employee relationship between the respondent No.1 before it - Sri.M.R. Venkatesh (respondent No.5 herein) and deceased Manjegowda and that the deceased Manjegowda sustained injuries arising out of and during the course of employment and succumbed to the injuries. Thus, the said point does not require a re-visit by this Court.
17MFA No. 187 of 2017
19. It is also not in dispute that the present appellant was the insurer of the said Tractor and Trailer bearing registration No.KA-54/2334/2335, according to which Insurance Company, 'D' Package Policy was in force as on the date of the occurrence of the road traffic accident.
As such, the only point that remains for consideration in this appeal is with regard to the alleged liability of the present appellant as an insurer towards the petitioners for the accidental injuries resulting in the death of the deceased Manjegowda.
20. The present appellant has taken a specific contention that the deceased Manjegowda did not possess a valid Driving Licence to drive the Tractor and Trailer as on the date of the occurrence of the road traffic accident. It is the argument of the learned counsel for the appellant (Insurance Company) that the respondent No.1 in the E.C. Court, who is the respondent No.5 herein being the owner of the said Tractor and Trailer and also the employer of the deceased Manjegowda, was negligent in 18 MFA No. 187 of 2017 not ensuring that the deceased had possessed a valid Driving Licence as on the date of the occurrence of the road traffic accident to drive the offending Tractor and Trailer.
Learned counsel for the appellant (Insurance Company) in his argument further contended that, though it is the duty of the driver in case of an accident and injury to a person to give information in writing to the Insurer not only about the occurrence of the accident, but also the other details including the name and address of the driver and the particulars of his Driving Licence, however, in the instant case, since the driver himself is the deceased in the road traffic accident, the duty was cast upon the owner of the vehicle who is the respondent No.5 herein.
21. A reading of Section 134 of the M.V. Act shows that the said duty to give such information is shown to have been cast upon the driver or other person in charge of the vehicle. However, the said duty upon the them would arise in the case when any person is injured or any 19 MFA No. 187 of 2017 property of a third party is damaged, as a result of an accident in which a motor vehicle is involved. Explanation to Section 134 says that, for the purposes of the said section, the expression "driver" includes the owner of the vehicle. Further, Section 133 of the M.V. Act prescribes some duties upon the owner of the motor vehicle to give information on demand of any Police Officer authorised in this behalf by the State Government. Those information are regarding the name and address of, and the licence held by, the driver or conductor which is in his possession or could by reasonable diligence be ascertained by him. From the above, it is clear that the respondent No.1 in the E.C. Court, who, admittedly, is the owner of the offending Tractor and Trailer was required to furnish the necessary details about the Driving Licence of the deceased Manjegowda, which, admittedly, he has not done.
22. It is the settled principle of law that, a person who alleges breach must prove the same. It is the contention of the Insurance Company that the driver of the offending vehicle did not possess a valid Driving Licence, as such, 20 MFA No. 187 of 2017 there is breach of the condition of the policy. In such a situation, it is for the Insurance Company to establish the said breach by cogent evidence. In the event the Insurance Company fails to prove that there has been breach of condition of the policy on the part of the insured, then, the Insurance Company cannot be absolved of its liability to indemnify.
23. In the instant case, suggestions were made to PW-1 to the effect that the deceased did not possess a valid Driving Licence to drive the Tractor with Trailer, however, the witness did not admit the said suggestion as true. On the other hand, the petitioners who includes PW-1, admittedly, have not produced the Driving Licence of the deceased Manjegowda. PW-1 has stated that she was not in possession of the Driving Licence of her deceased husband.
24. One Mrs. Thejeswani Chandrashekar, an Officer of the Insurance Company, who was examined as RW-1, in her examination-in-chief, has specifically stated that their Insurance Company is not liable to indemnify the first 21 MFA No. 187 of 2017 respondent therein (i.e. the owner of the offending vehicle) and to pay any compensation to the petitioners because the first respondent-owner has violated the policy terms and conditions by allowing the deceased to drive the Tractor and Trailer who was not possessing a valid Driving Licence to drive the said vehicle. In her cross- examination, her statement that the deceased driver had no valid Driving Licence to drive a Tractor and Trailer has not been denied. On the other hand, RW-1 in her cross- examination has also stated that the Investigating Officer of their Insurance Company has enquired with the petitioners as to whether the deceased had possessed a Driving Licence and recorded their statement. RW-1 has also produced the copies of the two letters, both dated 19- 08-2015 addressed by the Insurance Company to the owner of the offending vehicle (respondent No.1 in the E.C. Court) and to the wife of the deceased driver (i.e. petitioner No.1 in the E.C. Court), calling upon them to produce a copy of the Driving Licence of deceased Manjegowda and got them marked at Exs.R-3 and R-5 22 MFA No. 187 of 2017 respectively. Postal receipts and acknowledgment are marked at Ex.R-4. Thus, the appellant Insurance Company, as respondent No.2 in the E.C. Court had made all its efforts to secure the details of the Driving Licence, if any, of the deceased Manjegowda. However, the owner of the offending vehicle i.e. respondent No.1 in the E.C. Court (respondent No.5 herein) as well the petitioner No.1 in the E.C. Court (also respondent No.1 herein) have not responded to the said notices. Had really the deceased Manjegowda possessed the Driving Licence, either of these two persons to whom the notices were sent by the Insurance Company would have furnished the details of the Driving Licence of the deceased Manjegowda or at least given necessary particulars, since the Driving Licence was supposed to be in the custody of the petitioners in the E.C. Court and its copy or the details were required to be known to the respondent No.1 (owner of the offending vehicle) in the E.C. Court. Since they withheld a vital information which was to their exclusive knowledge, information and custody and did not pass on 23 MFA No. 187 of 2017 the same to the insurer despite its specific notice to them, an adverse inference is required to be drawn to the effect that, the deceased driver of the Tractor and Trailer in question did not possess a valid Driving Licence as on the date of the occurrence of the road traffic accident in question.
25. In the case of National Insurance Co. Ltd Vs. Swaran Singh and others reported in 2004 AIR SCW 663, our Hon'ble Apex Court, after considering Sections 3, 4, and 5 of the M.V. Act was pleased to hold that, 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 a reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licenced driver or one who was not disqualified to drive at the relevant time. As such, the Insurance Company, to avoid 24 MFA No. 187 of 2017 its liability, must not only establish the available defences raised in the said proceeding but also must establish breach of the condition of the policy on the part of the owner of the offending vehicle; the burden of proof wherefore would be on them.
26. In the case of UNITED INDIA INSURANCE CO. LTD. Vs. SUJATA ARORA reported in 2013 ACJ 2129, while dealing about the liability of the Insurance Company in a road traffic accident and Section 149 of the M.V. Act, the Hon'ble Apex Court was pleased to observe in paragraph 8 of its judgment as below:
"8. We are also fortified in our view in the light of the two judgments of this Court reported in 2007 (4) SCALE 36:2007 (2) T.A.C.398 "National Insurance Co.Ltd. V.Laxmi Narain Dhut" and 2011 (5) SCALE 494:2001 (3) T.A.C.12 "Jawahar Singh v.Bala Jain and others", wherein it has been held that in case it is found that the offending vehicle was driven by driver who was either holding no licence or a fake licence, then it amounts to violation of terms and conditions of policy and in that circumstance, no liability can be fastened on the Insurance Company."25 MFA No. 187 of 2017
27. In the case of Beli Ram Vs. Rajinder Kumar and Anr. reported in AIR 2020 SUPREME COURT 4453, the question before the Hon'ble Apex Court was about the insurer's liability in a road traffic accident case where the driver of the offending vehicle had not renewed his Driving Licence. The said driver who was the claimant was employed as a driver of a Truck which met with an accident while he was driving the Truck. His Driving Licence was not renewed for a period of three years and that too, in respect of a commercial vehicle like a Truck. The Hon'ble Apex Court observed that, the employer cannot wash his hands off responsibility of not checking up as to whether the driver had renewed the licence or not. It attributed gross negligence on the part of the employer as insured in verifying the Driving Licence and held that the Insurance Company was not liable to pay the compensation even under Section 3 of the E.C. Act.
28. In the instant case, as analysed above, the petitioners before the E.C. Court, who themselves claim to be the dependents of the deceased driver Manjegowda, 26 MFA No. 187 of 2017 have not furnished any details about the Driving Licence, if any, possessed by the deceased Manjegowda, despite they being served with a notice by the Insurance Company as per Ex.R-5. Interestingly, the respondent No.1 in the E.C. Court, who was the owner of the Tractor and Trailer in question and proved to be the employer of the deceased Manjegowda, though in his Written Statement had denied that the deceased Manjegowda was his employee, however, he did not tender himself for his cross- examination as RW-2, as such, his entire evidence was expunged. Further, he (owner of the offending vehicle) also did not respond to the notice served upon him by the Insurance Company calling upon him to furnish certain information including the details about the Driving Licence possessed by the deceased driver Manjegowda. Despite the receipt of the notice, a copy of which is at Ex.R-3 and the postal receipt and acknowledgement at Ex.R-4, the said owner of the Tractor and Trailer and employer of the deceased driver Manjegowda did not give any information to the Insurance Company. As such, as already held 27 MFA No. 187 of 2017 above, the deceased did not possess a valid Driving licence at all as on the date of the occurrence of the road traffic accident. Further there is no evidence to show that the respondent No.1 in the E.C. Court, i.e. the owner of the offending Tractor and Trailer had either checked or verified the Driving Licence of the deceased Manjegowda or had taken reasonable care by giving instructions to him to get his Driving Licence renewed, provided he had possessed one such Driving Licence and it had got expired. In the case on hand, no such evidence has been led from the side of the said respondent before the E.C. Court. The insurance policy, a copy of which is produced by the Insurance Company and marked at Ex.R-2 shows that, there is a specific condition that the driver of the insured vehicle should hold an effective Driving Licence at the time of the accident and that he is not disqualified from holding or obtaining such a licence. Since the appellant Insurance Company has established that the deceased Manjegowda did not possess a valid and effective Driving Licence as on the date of the occurrence of the road traffic 28 MFA No. 187 of 2017 accident and that the owner of the vehicle who was the employer of the deceased driver Manjegowda was negligent in ascertaining the possession of the Driving Licence by the deceased Manjegowda having entrusted the Tractor and Trailer to him to drive the same, there is a clear violation of the condition of the terms of the policy. As such, as held by the Hon'ble Apex Court in Beli Ram's case (supra), the Insurance Company cannot be held liable to pay the compensation.
29. However, the E.C. Court, without looking into the aspect whether the deceased driver Manjegowda was possessing a valid Driving Licence or not, has confined its analysis of evidence only to the employer and employee relationship between the respondent No.1 before it and the deceased driver Manjegowda and that the occurrence of the injury to the said deceased Manjegowda which resulted in his death was during the course of his employment. Answering the said point in the affirmative, it proceeded to hold that the petitioners before it are entitled for compensation and that the present appellant 29 MFA No. 187 of 2017 who was the respondent No.2 therein being the insurer was liable to pay the amount and the compensation.
30. Since the said finding of holding the second respondent before it (insurer) who is the appellant herein as liable to pay the compensation to the petitioners is now proved to be erroneous, interference by this Court to modify the impugned judgment and set aside the liability fastened upon the second respondent before it (Insurance Company) by the E.C. Court, is warranted. However, it is made clear that it would not, in any manner, take away or alter or diminish the liability of the respondent No.1 before the E.C. Court (owner of the offending Tractor and Trailer) to pay the awarded compensation to the petitioners.
Accordingly, I proceed to pass the following:
ORDER [i] The appeal filed by the appellant-
Insurance Company stands allowed in part;
[ii] The impugned judgment and award, passed by the learned Senior Civil Judge and 30 MFA No. 187 of 2017 Commissioner for Employees Compensation, Nagamangala, dated 14-07-2016, in E.C.A.No.10/2014, is hereby modified to the extent that the liability fastened upon the second respondent - Insurance Company before it is set aside. Consequently, the petition against the second respondent - Insurance Company stands dismissed. However, the first respondent before the E.C. Court (respondent No.5 herein) being the employer of the deceased driver and owner of the offending vehicle is held liable to pay to the petitioners, the compensation amount and the interest awarded by the E.C. Court at the quantum and as per the terms of the impugned judgment and award.
[iii] The rest of the terms of the impugned order including the apportionment of the compensation amount awarded remains un- altered.
Draw the modified award accordingly.31 MFA No. 187 of 2017
The amount, if any, deposited by the appellant -
Insurance Company in the Registry be transmitted to the E.C. Court, without delay.
Draw the modified award accordingly.
Registry to transmit a copy of this judgment to the concerned E.C. Court, along with its records, without delay.
Sd/-
JUDGE BMV*