Telangana High Court
Oriental Insurance Company Ltd., vs Guddati Venkateswarlu , Babu And ... on 22 June, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.151 OF 2014
JUDGMENT:
Aggrieved by the order dated 21.11.2011 in W.C.Case No.16/2007 NF passed by the Commissioner for Employees Compensation and Deputy Commissioner of Labour, Khammam, the opposite part 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 part No.2 - insurance company to file the present appeal are as under.
i) The applicant has filed an application under the provisions of the Workmen's Compensation Act, 1923 claiming compensation of Rs.1,00,000/- alleging that he was employed by Opposite Party No.1 as Auto Driver on the auto bearing No. AP 20 W 6889 and he was paid Rs.100/- per day. On 15.08.2006 the applicant was proceeding towards Nelakondapally for taking passengers from Nelakondapally to Rajeswarapuram on auto bearing No. AP 20 W 6889 and when 2 MGP,J CMA_151_2014 he reached the outskirts of Nelakondpally near one Baja Basavaiah land between 8.00 PM and 9.00 PM, all of a sudden a buffalo came across the road and the applicant applied sudden breaks, due to which auto turned turtle by the side of the road.
As a result of which the applicant sustained multiple bleeding injuries all over the body. Immediately he was shifted to Government Head Quarters Hospital, Khammam for treatment. The applicant, who was aged about 35 years at the time of accident, has sustained 25% of the disability with the following injuries:
a) Fracture of both bones of right hand (wrist to elbow)
b) Injury on right knee
c) Injury on chest (right side)
d) Injury on fore hand (right side)
e) Injury on fore hand (left side)
f) Injury on below eye
g) Injury on jaw
h) Injury on nose
i) Injury on right toe and other simple injuries all over the body.
ii) For better treatment, the applicant was shifted to Private orthopedic Hospital, Khammam and admitted as inpatient for fifteen days and incurred an expenditure of Rs.30,000/-
towards medical expenses, travelling charges, extra nourishment and other ancillary expenses.
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iii) The Police, Nelakondapally, Khammam District registered a case in Crime No.158/2006 under Sections 338 and 427 of IPC against the driver - cum - owner of the auto bearing No. AP 20 W 6889 on the complaint given by Namavarapu Kotaiah.
iv) It is further contended that the auto belongs to Opposite No.1 and the said auto was insured by Opposite Party No.2, thereby both the opposite parties are liable to pay the compensation under the Act. Thus, the applicant prayed to direct the opposite parties to pay the compensation of Rs.1,00,000/- @ 24% interest per annum along with costs.
v) The opposite party No.1 filed counter admitting the employment of the applicant as driver and payment of Rs.100/- per day as salary to the applicant. It is further admitted that the applicant spent Rs.30,000/- towards medical expenses and that the applicant is having valid insurance policy of Auto bearing No.AP20 W 6889 with opposite party No.2, who is liable to pay compensation.
vi) The opposite party No.2 filed counter denying age of the applicant, employment of applicant with opposite party No.1, accident having taken place in the course of employment, petitioner taking the vehicle for hire from the opposite party 4 MGP,J CMA_151_2014 No.1, mode and nature of accident. It is further contended that the applicant 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.
vii) On behalf of the applicant, PWs 1 and 2 were examined and Exs.A1 to A6 were marked. On behalf of opposite parties, none were examined. However, Exs.B1 to B3 were marked. EX. B1 is the copy of the insurance policy valid from 17.01.2006 to 16.01.2007 was marked. Exs.B2 and B3 are the certified copies of FIR and charge sheet. The Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of applicant as Rs.2,700/- per month, percentage of disability @ 25%, by applying the factor '197.06' for the age of applicant being 35 years, has awarded compensation of Rs.81,009/- including court fee of Rs.200/- and Advocate fee of Rs.1,000/-.
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.
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6. The main contention of the learned counsel for the insurance company is that the applicant was not having valid driving licence at the time of the accident, as such he did not file any documentary proof to show that he is having driving licence. It is pertinent to state that even for the sake of arguments if we accept the contention of the learned counsel for opposite party No.2 as true, 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.
7. The High Court of Andhra Pradesh in The United India Insurance Company Limited v. Sri Mohd. Khaleel Khan and others1, 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 1 CMA No.872 of 2005 decided on 14.10.2015 6 MGP,J CMA_151_2014 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."
8. In 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."
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 2005 LawSuit(Ker) 280 Dr.GRR,J driving licence of the driver, as contained in sub-section (2)(a)(ii) 2 2004 ACJ 900 3 CMA No.4769 of 2004 decided on 27.10.2021 7 MGP,J CMA_151_2014 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.
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 8 MGP,J CMA_151_2014 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 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 9 MGP,J CMA_151_2014 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. In the case on hand, the opposite party No.2 has not placed any material to establish that the injured was not holding any licence. 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 to discharge the appellant from the liability. It is not the case of the opposite party No.2 that the accident has occurred due to the contributory negligence on the part of the injured. In such circumstances, 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.
11. The other contention of the learned counsel for the insurance company is that the applicant used to take vehicle for hire from opposite party No.1, as such it cannot be treated as 10 MGP,J CMA_151_2014 an employment. However, the appellant - insurance company has not examined any witness to deny the relationship of employee and employer between the injured and opposite party No.1. On the other hand, the opposite party No.1 has clearly mentioned in his counter that he has employed the injured under him by paying Rs.100/- per day. Mere assertion on the part of the appellant is not sufficient to establish its contention. The Honourable Supreme Court in North East Karnataka Road Transport Corporation v. Sujatha4 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 4 (2019) 11 SCC 514 11 MGP,J CMA_151_2014 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 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."
12. 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.
13. 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, there are is irregularity or illegality in the impugned order. Hence, this Court does not see any reason to interfere with the impugned order 12 MGP,J CMA_151_2014
14. 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_151_2014 THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI Civil Miscellaneous Appeal No.151 OF 2014 Dated: 22.06.2023 AS