P.K. Misra, J.
1. These three appeals have been filed by the insurer against a common award passed by the Commissioner for Workmen's Compensation-cum-Assistant Labour Commissioner, Cuttack (for short, 'the Commissioner'), in three different claim cases under the Workmen 's Compensation Act arising out of the same accident.
2. The accident took place on 18.12.92 involving a tractor attached with a trolley. W.C. Case No. 96-D of 1993 (corresponding to M.A. No. 562 of 1997) and W.C. Case No. 97-D of 1993 (corresponding to M.A. No. 560 of 1997) were filed by the two coolies who were travelling in the tractor along with trolley. W.C. Case No. 98-D of 1993 (corresponding to M.A. No. 561 of 1997) was filed by the driver of the tractor. It was alleged in the three applications that the injuries were sustained in the accident arising out of and in the course of employment.
3. The owner had admitted about the employment and the accident, but pleaded that the compensation should be paid by the insurance company. The insurer while generally denying about the allegations contained in the claim applications called upon the claimants/the owner to produce the insurance policy as well as the driving licence.
4. The Commissioner found that the three claimants were workmen and had sustained injuries in an accident arising out of and in the course of employment. It was found that the two coolies were receiving Rs. 900 each towards their monthly wages, whereas the driver was receiving a sum of Rs. 1,000 per month towards his wages. In W.C. Case No. 96-D of 1993, it was found that the loss of earning capacity was 35 per cent and accordingly, on the basis of the age, it was directed that a sum of Rs. 32,437 is payable. In W.C. Case No. 97-D of 1993, loss of earning capacity of the coolie was assessed at 30 per cent and a sum of Rs. 29,281 was directed to be paid. In W.C. Case No. 98-D of 1993 relating to the driver, loss of earning capacity was assessed at 25 per cent and a sum of Rs. 26,474 was assessed as compensation. In all three cases, the insurer was called upon to pay the compensation amount.
5. In these appeals, it is contended that the insurer had filed application for examining a doctor to assess the loss of earning capacity of each of the claimants, but such application had been illegally rejected. On perusal of the order-sheet it appears that opportunity had been given to the insurer on two or three occasions to examine the doctor, but the insurer failed to produce the doctor. Thereafter, the Commissioner in his discretion refused to grant further adjournment for examination of a doctor on behalf of the insurance company. Since opportunity had been given, it cannot be said that the Commissioner has committed any substantial error of law in rejecting the prayer of the insurer for further adjournment of the cases for examination of a doctor. Thus, the first submission on behalf of the appellant cannot be accepted.
6. The counsel for the appellant also submitted that the vehicle had been insured only for agricultural purposes and it was not meant for being used for commercial purposes. He has submitted that in the claim applications, it was stated that the vehicle was returning after transporting stones and in evidence it was stated that sand was being transported. It is submitted that in either case, such transportation had nothing to do with any agricultural purpose and was evidently for a commercial purpose and as such there has been breach of the conditions of the policy. On a perusal of the written statement, it appears that no such specific plea had been taken, nor any particular question had been put to the claimants or the owner to the effect that the vehicle was being used for commercial purpose. Transportation of stone or sand may be also for agricultural purposes under certain circumstances. In the absence of specific plea or specific question on this aspect, it would not be permissible to allow the appellant to raise such a point in appeal.
7. The learned counsel for the appellant contended that the tractor attached with a trolley comes under the definition of a 'transport vehicle' and was being used as such on the date of accident. However, the driver of the tractor did not have authority to drive a transport vehicle or a tractor attached with trolley and as such, there being absence of valid driving licence, the insurance company should not be made liable.
8. It appears that though such a specific plea had not been taken in the written statement, the insurance company had called upon the parties to produce the driving licence. It appears that the driver (claimant in Misc. Appeal No. 561 of 1997) was examined as PW 3. He had stated in his evidence that he had a driving licence No. 935 of 1989 which had been issued by the R.T.O., Bhubaneswar. The owner while being examined as OPW 1 has produced Exh. A purporting to be the driving licence of the driver. Exh. A indicates that a driving licence bearing No. 961 had been issued by the licensing authority at Chandikhole in 1991. From the order passed by the Commissioner, it appears that such point was again reiterated at the time of hearing of arguments, but the Commissioner appears to have glossed over the matter.
9. At the time of hearing of the present appeals which were heard together, an application has been filed under Order 41, Rule 27, Code of Civil Procedure, on behalf of the appellant for accepting the certified copies of licence No. 961 issued by the licensing authority, Chandikhole and licence No. 935 issued by the licensing authority, Bhubaneswar. Both the licences are apparently issued in the name of Madan Mohan Dora of the very same address. In order to unravel the mystery, as there were discrepancies in the two licences, I had requested Mr. J. Pat, learned counsel associated with the learned Standing Counsel (Transport) to produce the relevant registers from the licensing authorities of Chandikhole as well as Bhubaneswar. Accordingly, the two registers were produced in presence of counsel for all the parties and compared. For convenience, xerox copies of the relevant pages in the registers have been retained. In the interest of justice, those xerox copies are marked as Exhs. C-1 and C-2 (on behalf of the court) for just disposal of the cases. The entries in the certified copies of the driving licences produced on behalf of the appellant also tally with these extracts. A comparison of the two documents which have been accepted as additional evidence and marked as Exhs. C-1 and C-2 adds to the mystery surrounding this aspect. From the photographs appearing in these two documents it is apparent that the persons are different and not the same person. In licence No. 961 of the year 1990-91 issued by the licensing authority, Chandikhole, it is indicated as if the person is authorised to drive light motor vehicle and tractor. On the back page of the said licence it is indicated that the person is authorised to drive light transport vehicle with effect from 24.6.1994. In fact, Exh. A filed by the owner, opposite party No. 1, corresponds to licence No. 961 of 1990-91. In the said Exh. A also there is indication that the person is authorised to drive light motor vehicle with effect from 24.6.94. In the other extract relating to driving licence No. 935 issued by the licensing authority, Bhubaneswar, it appears that the person was authorised to drive a light motor vehicle as a private driver and there is no endorsement authorising him to drive any transport vehicle.
10. Though a tractor can be considered to be a light motor vehicle (depending upon its unladen weight), there cannot be any dispute that tractor attached with the trolley is a 'transport vehicle'. If Exh. A (corresponding to Exh. C-l) is considered to be the driving licence, it appears that the endorsement authorising the person to drive light transport vehicle is with effect from 24.6.94, that is to say, much beyond the date of accident. If, on the other hand, Exh. C-2 is considered to be the relevant driving licence, there is no authorisation to drive a transport vehicle Section 3 of the Motor Vehicles Act makes it clear that no person can drive a transport vehicle unless he is specifically authorised to do so. Thus, in either case, whether Exh. A (corresponding to Exh. C-1) is considered to be the relevant licence or Exh. C-2 is considered to be the relevant licence, the driver did not have authority to drive the transport vehicle on the date of accident. Moreover, the driver himself has stated the number of his driving licence as 935 which has been issued by the licensing authority at Bhubaneswar. In other words, PW 3 has evidently referred to the driving licence as per Exh. C-2 wherein there is no authorisation to drive a transport vehicle at all. From the L.C.R. it appears that after production of Exh. A, the driver (claimant in W.C. Case No. 98-D of 1993) had filed an application to re-examine himself in order to clarify the discrepancies. However, in spite of permission by the Commissioner he did not examine himself any further. Thus, on deeper scrutiny of the materials on record available before the Commissioner as well as now made available by the concerned licensing authorities, it is now apparent that the driver did not have a valid driving licence authorising him to drive a transport vehicle, that is to say, a tractor attached with trolley, on the date of accident and evidently there has been a patent breach of the condition of the policy. In such view of the matter, the insurance company could not have been made liable to pay the amount.
11. The learned counsel appearing for the owner, however, submitted that in the absence of a specific plea in the written statement, such a question should not be permitted to be raised in appeal. In ordinary circumstances, I would have accepted such a contention. However, keeping in view the peculiar circumstances in the present case, as two licences apparently in the name of same person issued by two different authorities indicate two different photographs of different persons; the driving licence produced by the owner does not tally with the number of the driving licence alleged to have been issued to PW 3, the driver himself, since there is apparent contradiction in the evidence of PW 3 with that of the owner, and as the matter though not specifically raised in the written statement, had been specifically urged before the Commissioner. I have permitted the appellant to raise such question.
12. It appears that the awarded amount in each of the cases has been deposited before the Commissioner out of which a sum of Rs. 10,000 has been kept as fixed deposit in each of the cases and the balance amount has been disbursed. Since now it has been found that the insurance company is not liable, the sum of Rs. 10,000 which has been kept in fixed deposit in each of the cases shall be paid to the insurance company along with the accrued interest. However, the claimant in each case would be entitled to recover a further sum of Rs. 10,000 from the owner by filing appropriate application before the Commissioner for initiating certificate proceeding. So far as the amount already disbursed to each of the claimants is concerned, evidently the insurance company is entitled to be reimbursed by the owner. On appropriate application being filed by the insurance company, the Commissioner shall initiate appropriate certificate proceeding against the owner for reimbursement of the amount already paid to each of the three claimants.
13. In the result, the appeals are allowed to the extent indicated above. There will be no order as to costs in any of the appeals.
14. I place on record my appreciation for the help extended by Mr. J. Pal, counsel on behalf of the Standing Counsel (Transport).