Telangana High Court
The New India Assurance Company Limited vs Smt. Goli Venkatamma And 2 Others on 22 June, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.697 OF 2016
JUDGMENT:
Aggrieved by the order dated 30.06.2016 in W.C.Case No.264 of 2014 passed by the Commissioner for Employees' Compensation and Assistant Commissioner of Labour - II (FAC), Hyderabad, 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 learned 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.8,00,000/- for the death of deceased. The applicants are the parents of the deceased. The deceased worked as driver on a Tata Ace vehicle bearing No.AP 24 TB 3692 under employment of opposite party No.1 and the said lorry was insured with opposite party No.2 and policy was valid from 30.10.2014 to 29.10.2015. On 27.12.2014 on the 2 MGP,J CMA_697_2016 instructions of opposite party No.1, the deceased along with two labourers proceeded on Tata Ace Vehicle bearing No.AP24 TB 3692 from Pamulapahad Village to Nareducherla Village and on the way at about 4.00 AM on 28.12.2014 the deceased lost control over the said vehicle, due to which the said vehicle fell in NSP Canal. As a result, the deceased as well as two labourers fell in the canal along with the said vehicle and died on the spot.
The Police, Vemulapalli of Nalgonda District registered a case in Crime No. 218 of 2014 U/s.304-A of the Indian Penal Code.
ii) The deceased was paid a sum of Rs.7,500/- per month 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 23 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 the dependents of deceased claimed Rs.8,00,000/- as compensation from opposite party Nos.1 and 2.
iii) The opposite party No.1 filed counter admitting the employment of deceased with him as driver of Tata Ace vehicle, death of the accident during the course of accident etc. It is further contended that he used to pay Rs.7,000/- per month towards wages to the deceased. It is submitted that since the 3 MGP,J CMA_697_2016 vehicle was insured and the policy was subsisting as on the date of the accident, the insurance company is liable to pay the compensation and thereby prayed to dismiss the claim against him.
iv) The opposite party No.2 filed counter denying the relationship of the applicants with the deceased, age of the deceased, employment of deceased with opposite party No.1, mode and nature of accident, wage of the deceased, death of the deceased due to injuries in the accident etc. It is further contended that the deceased was not having valid driving licence 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 A7 were marked. On behalf of opposite parties, RWs 1 to 3 were examined and Exs.B1 to B6 were marked. The Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of applicant as Rs.6,658.50/- per month, by applying the factor '219.95' for the age of deceased being 23 years, has awarded compensation of Rs.7,35,233/- including stamp fee of Rs.1,464/- and Advocate fee of Rs.1,500/-.
4 MGP,J CMA_697_2016
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 prime contention of the learned Standing Counsel for the insurance Company is that the deceased was having only learner driving licence at the time of the accident and as per Ex.B4 the deceased was not authorized to drive crime vehicle, however, learned authority by relying on the judgment in National Insurance Company Limited v. Swaran Singh1 held that though driver is holding learner's licence the liability exists, ignoring the fact that said judgment is applicable only for third party claims filed under Motor Vehicle Act but not the cases filed under Employees Compensation Act. AW1, who is the mother of the deceased, has reiterated the averments of the application in her chief examination. She further deposed that her son (deceased) was having a valid driving licence but the same was lost in the accident as it was washed away in the canal water. RW1, who is the employer of the deceased, has also deposed that the deceased was having a valid and effective 1 2004 ACJ 1 5 MGP,J CMA_697_2016 driving licence at the time of the accident but the same was lost at the time of the accident. RW2, who was working as Senior Assistant in RTA, Nalgonda District, has deposed that learning licence was issued in the name of deceased under Ex.B4. He further deposed that the deceased was authorized to drive auto rickshaw non transport, LMV non transport and MCWG tractor and trailer non transport. In the cross examination, RW2 admitted that the deceased can drive the non-transport vehicle with the instructor besides him keeping the 'L' board in front and rear. Whether the deceased was driving the vehicle with an instructor besides him at the time of the accident is a worthy question. However, no evidence is adduced to that extent by either side. When two views are possible, the view that is beneficial to the claimants has to be taken, since the Workmen's Compensation Act is a beneficial legislation meant to protect the interest of employees and workers. Moreover, it is not the case of the opposite party No.2 - insurance company that the deceased was not holding any type of licence at the time of the accident. In an authority in United India Insurance Company Limited v. Annakutty and another2, the Kerala High Court held as under:
2
2006 (1) SCT 225
6 MGP,J CMA_697_2016 "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 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."
7. In another authority in the Oriental Insurance Company Limited v. Jimmy3, 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 3 2004 ACJ 900 7 MGP,J CMA_697_2016 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."
8. The other Bench of this Court in New India Assurance Company Limited v. Smt.N.Anjilamma and five others4 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 2005 LawSuit(Ker) 280 Dr.GRR,J 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 4 CMA No.4769 of 2004 decided on 27.10.2021 8 MGP,J CMA_697_2016 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.
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 Dr.GRR,J 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
9 MGP,J CMA_697_2016 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 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 MGP,J CMA_697_2016
9. As rightly held by the learned Commissioner, Exs.A5 and B3 disclose that Tata Ace vehicle bearing No.AP 24 TB 3692 is light motor vehicle and its gross weight is 1550 kgs and as per the provisions of the Motor Vehicles Act, 1988, any vehicle includes a transport vehicle, the unladen weight of which does not exceed 7500 kilograms, falls in the category of light motor vehicle. In such circumstances, when a driving licence permits a driver to drive a light motor vehicle, then it automatically permits him to drive a transport vehicle, as long as the unladen weight of vehicle does not exceed 7500 kilograms.
10. Furthermore, the High Court of Andhra Pradesh in United India Insurance Company Limited v. Sri Mohd. Khaleel Khan and others5 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 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 5 CMA No.872 of 2005 decided on 14.10.2015
11 MGP,J CMA_697_2016 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 the deceased was holding licence to drive auto rickshaw non transport, LMV non transport and MCWG tractor and trailer non transport (as per the version of RW2), 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.
12. In view of the above facts and circumstances, it can be held that the learned Commissioner after considering the oral and documentary evidence and also the principle laid down in several citations of the Honourable Supreme Court and other High Courts, has rightly awarded the compensation in favour of the dependents of the deceased binding the opposite party No.2 to indemnify the liability of the insured opposite party No.1. Thus, the learned Commissioner has not committed any irregularity or illegality while passing the impugned order. Hence, I do not find any reason to interfere with the impugned 12 MGP,J CMA_697_2016 order. Therefore, this civil miscellaneous appeal is devoid of merits and liable to be dismissed.
13. 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: 22.06.2023 AS 13 MGP,J CMA_697_2016 THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI Civil Miscellaneous Appeal No.697 OF 2016 Dated: 22.06.2023 AS