New India Assurance Co. Ltd. v. Rani Devi and another

Judgment

1. In the instant appeal, the appellant herein has filed the Civil 1st Miscellaneous Appeal under Section 30 of the Workmen’s Compensation Act against the judgment/award dated 11.05.2009, passed by the Assistant Labour Commissioner, Jammu, in case file No. Death-31/W.C.Act/2004, titled “Rani Devi Vs. Gurmeet Singh and another”. Brief facts of the case are as under: -

2. It is stated that the respondent No.1 filed a claim petition before the Assistant Labour Commissioner, Jammu for grant of compensation on account of the death of her husband Babu Ram, who had allegedly died while driving the Auto bearing registration no. No. JK02K - 1479. It was pleaded that the said Auto was owned by the respondent no. 2 under whose employment the deceased Babu Ram was working. The appellant company after its service has filed objections to the claim petition and denied its liability to pay any compensation to the claimant/respondent No. 1 on various grounds. The specific defenses raised by the appellant MA No. 9900027/2009 ____ company was that the Auto Rikshaw in question has been purchased by the deceased from the owner Harmeet Singh (respondent no.2), three years prior to the accident and, therefore, there was no relationship of employer and employee between the deceased and respondent no. 2. Further, the company/appellant had raised a plea that the deceased driver was not holding a valid driving license and, therefore, the company was not liable to pay any compensation to the claimant / respondent No. 1.

3. The petitioner presented a claim petition alleging therein that the deceased was employed as a driver by respondent No. 1 (respondent No. 2 herein) to drive his vehicle bearing registration number JK02K-1479. On

20.02.2004, while the deceased was coming to Canal Road from Talab Tillo, his vehicle collided with a horse cart coming from the opposite direction and got serious injuries. He was immediately taken to the Government Medical College Hospital, Jammu for treatment, where he succumbed to his injuries in the emergency wing of the hospital on the same day. The deceased died due to injuries caused to him due to accident, which arose in the course of his employment for respondent No. 1 (respondent No. 2 herein). The deceased was getting Rs. 4500/- per month as wages and was 38 years old at the time of accident. The respondents despite notice of the accident have failed to pay compensation to the petitioner. She alleged that as per the provisions of the Workmen’s Compensation Act, 1923, she is entitled to receive Rs. 5 lacs as compensation with 12% interest on account of the death of the deceased, as the offending vehicle was insured with the Insurance Company, appellant herein. MA No. 9900027/2009 ____

4. The appellant in the impugned award has stated that the vehicle involved in the accident was being plied by the deceased against the terms and conditions of its insurance policy. The deceased was not holding a valid and effective driving license at the time of the accident, which has exonerated the respondent (Insurance Company) from the liability to indemnify the owner. It is further stated that the deceased was permitted to drive only Light Motor Vehicles and was not authorized to drive a transport vehicle. It is stated that the petition deserves dismissal, as no prior notice as per the requirement of the Workman’s Compensation Act was served upon the respondents and no relationship of employer and employee existed. Moreover, the respondent No. 1 (respondent No. 2 herein) had sold the auto rikshaw involved in the accident more than three years prior to the date of alleged accident. The deceased was driving the auto rikshaw as owner and not as an employee. It is pleaded that the petition deserves dismissal against them as the insurance policy has been obtained by misrepresentation and concealment of facts. The policy was admittedly obtained in the name of respondent No. 1 (respondent No. 2 herein), by misrepresenting him to be the owner of the auto rikshaw, though respondent No. 1 (respondent No. 2 herein) had sold the same more than three years prior to the accident.

5. It is further stated that at the time of the accident, the vehicle was being driven by the deceased driver Babu Ram as owner, as he had purchased the same from respondent No. 1 (respondent No. 2 herein), prior to the accident. It is stated that the deceased was himself the owner of the vehicle and there is no question of deceased being paid any wages. During the pendency of the petition, the claimants got the matter MA No. 9900027/2009 ____ investigated and in the said investigation, respondent No. 1 (respondent No. 2 herein) has categorically stated that he was not the owner of the auto rikshaw on the day of the accident, as he had already sold the same to the deceased three years prior to the accident. The insurance company admitted that the vehicle was insured with them in the name of respondent No. 1 w.e.f. 20.01.2004 to 19.01.2005 at their Branch, Satwari.

6. The Assistant Labour Commissioner after going through the objections filed by the respondents has framed the following issues: - a. Whether the deceased was a workman within definition of workman under the Workman’s Compensation Act,1923 (OPP). b. Whether the deceased met with accident during and in the course of his employment with respondent No. 1 (OPP). c. What were the age and wages of the deceased at the time of the accident/death (OPP). d. Whether the respondent No. 1 had sold the vehicle to Babu Ram prior to the date of accident and was not the employer of the deceased (OPP). The claimant was directed to lead evidence in support of her pleadings and in order to prove the above mentioned issues.

7. The Assistant Labour Commissioner in its award has stated as under:- “It is therefore, awarded under section4 (I) a read with schedule IV the Workmen’s Compensation Act, 1923 that Harmeet Singh/Charmeet Singh will pay Rs. 3,79,120/- (Rupees three Lakh seventy nine thousand one hundred twenty only) to the dependents of deceased Babu Ram as compensation. It is further ordered that New India Assurance Co. Ltd, Satwari Chowk, Jammu, the respondent No. 2 being insurer will pay this amount of compensation for MA No. 9900027/2009 ____ Harmeet Singh/Charmeet Singh respondent No. 1, the insured to the dependents of the deceased Babu Ram by depositing in this Court within 30 days of the announcement of this award”.

The appellant herein has challenged the award dated 11.05.2009 passed by the Assistant Labour Commissioner, Jammu, on the ground that the award is bad and contrary to the facts of the case. It is stated that the finding of the Assistant Labour Commissioner under the Workman’s Compensation Act, is also bad as there is “no provision that if the driver is employed, it is mandatory to possess a valid driving license”, is against the law settled by the Hon’ble Apex Court. It is further stated that the vehicle involved in the accident is a load carrier being used for commercial purpose. The copy of the driving license on the court file reveals that the deceased was holding a driving license valid for motorcycle and Light Motor Vehicle. The driver had no authorization to drive any commercial vehicle, therefore, the driver was not holding a valid and effective driving license at the time of the accident and, as such, the company was not liable to indemnify the owner and pay compensation to the claimant.

9. It is further stated that in the investigation conducted by the appellant company, it had come to the fore that the owner Harmeet Singh had sold the vehicle to deceased Babu Ram, three years prior to the occurrence of the accident. The company in order to prove this defence, has produced the investigator who had conducted the investigation and has recorded the statement of Harmeet Singh and witnessed by two independent persons. The Assistant Labour Commissioner, Jammu, has rejected the statement of the investigator as well as statement recorded by MA No. 9900027/2009 ____ him. The finding of the Commissioner that the company has not produced any oral or documentary evidence to prove the sale of the vehicle to the deceased Babu Ram is, thus, contradictory. The deceased being himself the owner of the vehicle, could not have come in the definition of the Workman as defined under Workman’s Compensation Act.

10. It is further stated that the vehicle has been sold by respondent No. 1 (respondent No. 2 herein) to deceased Babu Ram, but the insurance policy for the next three years continued to be in the name of Harmeet Singh alone. The insurance policy was, thus, obtained by the new owner of the vehicle i.e. the deceased Babu Ram by misrepresentation and concealment of material facts. The appellant herein has drawn the following substantial questions of law: - a. Whether the defence of valid and effective driving license is available to the insurer in proceedings under Workman’s Compensation Act for deciding its liability to satisfy the award amount? b. Whether it is not mandatory that the workman has necessarily to hold a valid and effective driving license in order to claim compensation under the Workman’s Compensation Act? c. Whether the legal heirs of the driver cum owner of the offending vehicle compensation under Workman’s Compensation Act? d. Whether in the absence of an established relationship of employer and employee between the insured and the workman, the insurer is liable to pay compensation?

11. Learned counsel for the appellant states that he would be concentrating only on the issue No. 1 i.e. Whether the defence of valid and effective driving license is available to the insurer in proceedings under Workman’s Compensation Act for deciding its liability to satisfy MA No. 9900027/2009 ____ the award amount and the law has been settled with respect to the rest of the issues framed by the appellant.

12. Reliance is placed upon the judgment passed by this Court in FAO (WC) No. 32/2019, titled “Managing Director, State Forest Corporation, Shimla, H.P. Vs. Mohd. Sikandir”, wherein, it is held that: - the mandate of Section 30 of “6. As per the Employees Compensation Act, no appeal shall lie against any order unless a substantial question of law is involved in the appeal. From the record it is evident that the appellant has not cross examined the respondent as well as his witnesses except one and as such evidence of the respondent has remained un-rebutted with regard to his employment. 7. The question whether there exists any relation of employer- employee between the parties is not a substantial question of law rather a question of fact determined by the Commissioner after considering the evidence of the evidence of the respondent i.e. respondent himself, Abdul Jabbar and Abdul Rashid. Reliance is placed upon the decision of Hon’ble Apex Court in North East Karnataka Road Transport Corpn. v. Sujatha, (2019) 11 SCC 514 where Apex Court has held as under: 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 dependants 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 to claim employment and he/his LRs sue(s) his employer 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”.

13. Reliance is placed upon the judgment passed by the learned Single Judge of this Court in “Zoona and others Vs. Gh. Hassan Khanday and others”, relevant are paras 9 and 10, which for reference are reproduced as under: - MA No. 9900027/2009 ____ “9.In my opinion two separate questions; one relating to liability of an employer to pay compensation to the deceased / injured workman and second relating to liability of Insurance Company as an indemnifier to indemnify the employer; warranting attention independent of each other were mixed up and mingled both in Hazira Begum case (supra) and Mst. Noora's case (supra). The courts, it is respectfully stated, placed exclusive focus on Workman's Compensation Act, dilated on pre-requisites under the Act for a claim for compensation to succeed and held that once the envisioned requirements were fulfilled the compensation was to be paid. The courts held validity of driving license alien to the requirements of Workman's Compensation Act. The courts after tracing out the background in which the Workman's Compensation Act was enacted, highlighting its aims and objects as a welfare legislation, opined that only three requirements of; (i) workman; (ii) personal injury/ death and (iii) árising out and in the course of employment, were to be filled to sustain a claim for compensation under the Act. There can be no denial of the fact that Workman's Compensation Act was conceived and enacted with laudable aims and objects and that having regard to the purpose of the Act even stretched view may be taken in interpreting the Act. There can be also no dispute with the legal proposition that the dependents of the deceased Workman to hold the emplover responsible for payment of compensation have only to prove that the deceased workman was under employment of the employer; that death occurred due to an injury / accident arising out of and in the course of employment. However, the said proposition cannot be extended to include that an individual / company having an independent contract with the employer where under the individual/ company binds down himself/ itself to indemnify the employer in the event of an accident resulting in death/ injury, is to be governed by the legal proposition and not the terms and conditions of the contract governing the relationship between the indemnifier and indemnified. In other words, the dependents of a deceased workman on proving that the deceased was a workman and that his death was caused due to injury / accident arising out of and in the course of employment may prove their case against the employer but to fasten a third party like Insurance Company with responsibility to indemnify the employer and pay the MA No. 9900027/2009 ____ compensation, the dependents have to further prove that the third party or the Insurance Company in terms of the agreement between such third party/ Insurance Company and the employer is obligated to pay the compensation to the dependents. The second limb of the duty cast on the dependents does not fall within the realm of the Workman's Compensation Act and the third party / Insurance Company can prove and establish that because of defence available to it, it was not under any real obligation to pay the compensation amount.

10. Viewed thus, though the validity of driving license may not be a requirement under Workman's Compensation Act but all the same, it may be a requirement under the agreement between the insurance company and the employer. The view that validity of driving license is not a requirement in such matter, therefore, is not a sound proposition of law. If in a case it is found that the deceased workman had not a valid driving license the Insurance Company may successfully wriggle-out of its obligation to pay compensation to the dependents of the deceased workman. In such a situation the employer nonetheless shall continue to be under legal obligation to pay compensation to the dependents of the deceased workman.”

14. Reliance is further placed on the judgment passed by the Hon’ble Apex Court in case titled “Beli Ram Vs. Rajinder Kumar and another”, wherein, it is held that: - “16. We are conscious of the fact that in the present case the beneficiary is the driver himself who was negligent but then we are not dealing with a claim under the MV Act but under the Compensation Act, which provides for immediate succor, not really based on a fault theory with a limited compensation as specified being paid. We are, thus, in the present proceedings not required to decide the share of the burden between the appellant as the owner and the first respondent as the driver as may happen in a proceeding under the MV Act.

23. When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see MA No. 9900027/2009 ____ that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years. The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are, however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger issues could be debated in other proceedings. The only exception the provisos to Section 3 of Compensation Act, which is not the factual situation in the present case. The relevant provision reads as under: “3. Employer' s liability for compensation.- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable-- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [four] days; (b) in respect of any [injury, not resulting in death, caused by] an accident which is directly attributable to-- (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.” We are not aware whether any other proceedings have been initiated or not, at least, none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in MA No. 9900027/2009 ____ not renewing the driving licence would be present, but the lack of care of the appellant as the employer would also arise. We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount. Proceedings here being under the Compensation Act, the consequences are not flowing to the first respondent as the initial negligent person.”

15. Heard learned counsel for the parties and perused the record.

16. The contention of learned counsel for the appellant is only to the extent that the preposition made by the Assistant Labour Commissioner that it is not mandatory that the driver should hold a valid driving license at the time of the accident is not sustainable in the eyes of law.

17. Learned counsel for respondent No. 2 states that he was having a valid license for LMV, as such, he had a valid driving license, therefore, in the impugned award, it has been rightly held that the insurance company is liable to pay compensation to the claimants. It is further stated that no evidence has been led by the insurance company to the extent of validity of driving license of the deceased Babu Ram.

18. Learned counsel for the appellant further states that he would feel satisfied if in the impugned award, where it is stated that “it is not mandatory that the driver should hold a valid driving license at the time of accident”, may be omitted on the ground that the wrong preposition of law has been cited by the Assistant Labour Commissioner, Jammu.

19. Be that as it may, this appeal to the extent of challenging the impugned award with respect to the compensation granted to the respondent No. 1/claimant to the tune of Rs. 3,79,120/-, is upheld, whereas, only the finding of the Assistant Labour Commissioner, Jammu, MA No. 9900027/2009 ____ to the extent that “it is not mandatory that the driver should hold a valid driving license at the time of accident” is directed to be omitted from the impugned order.

20. Learned counsel for the claimant states that he has already received an amount of Rs. 1.50 lacs in the year 2013.

21. Learned counsel for the appellant states that he has already deposited the entire awarded amount before the Registry of this Court.

22. Registry is directed to release the balance amount in the favour of claimant forthwith, with interest, if any. Learned counsel for the claimant is directed to verify the claimant before the Registry of this Court.

23. Disposed of. Jammu: 25.07.2023 Vishal (MOKSHA KHAJURIA KAZMI) JUDGE Whether the Order is speaking? Whether the Order is reportable? Yes/No. Yes/ No