Arun Kumar Goel, J.
1. These appeals have arisen out of the common order dated 2.8.1997, passed by the Commissioner under the Workmen's Compensation Act, 1923, Shimla, [S.D.M. (Urban), Shimla]. As such, these are proposed to be disposed of by this common judgment.
2. Late Gopal Thakur was the husband of Geeta Devi and father of Neelam and San tosh Kumar (minors). He was engaged as driver by Desh Bandhu Sood, owner of truck bearing registration No. HPS 6427. It stood insured with National Insurance Co. Ltd. F.A.O. No. 403 of 1997 has been filed by National Insurance Co. Ltd. against order dated 2.8.1997, in Case No. 3 of 1996; whereas F.A.O. No. 38 of 1998 has been filed by Desh Bandhu Sood against the said order.
3. Deceased being in the employment of Desh Bandhu Sood is not disputed. Similarly, the vehicle being insured with National Insurance Co. Ltd. is also not in dispute. Accident having occurred during the course of the employment of the deceased as driver of the truck in question, owned by Desh Bandhu Sood, stands duly established on the basis of the evidence on record. Even this was not disputed at the time of hearing of these appeals.
4. Commissioner below held wages of the deceased at Rs. 1,000 per month. His proved age was 31 years at the time of accident. Thus factor as per Schedule IV of the Workmen's Compensation Act, 1923 applicable is 205.95. Taking 40 per cent of the monthly salary of Rs. 1,000 payable in this case, compensation was rightlyassessed. Accident is of 18.1.1994. As per section 4-A of Workmen's Compensation Act, 1923, compensation became payable on or with effect from 18.2.1994. Interest if to be allowed is at the rate which was applicable on the date of the accident, i.e., 18.1.1994, learned counsel for the parties stated that it was 6 per cent then.
5. In support of F.A.O. No. 403 of 1997, Mr. Maniktala, the learned counsel, urged that the deceased was not holding a valid driving licence, as it has been proved to be a fake from the statement of Hari Singh, clerk in the office of Registration and Licensing Authority, Solan, RW 2. Another ground urged was that respondent Nos. 1 to 3 had filed petition under the Motor Vehicles Act, therefore, case under the Workmen's Compensation Act, 1923 was not maintainable on their behalf.
6. It was urged on behalf of respondents-claimants in these appeals that both the appeals are without any substance and need to be rejected.
7. According to learned counsel for the owner of the vehicle, a vital and material proved fact on record in this case is that when the accident took place, deceased was towing another truck bearing registration No. HIS 2195. He further urged that his client has been wrongly held liable for the payment of interest. This direction is contrary to the decision of the Apex Court in the case of Ved Prakash Garg v. Premi Devi, : AIR1997SC3854 . He thus urged that the impugned award needs to be modified on this ground by holding that the insurance company is liable for payment of not only the compensation, but for interest also. While challenging the award so far penalty is concerned, Mr. Sharma urged that his client is not liable at all for its payment. In the alternative and without conceding, he urged that the penalty could not have been levied by the Commissioner below, because in case he was of the opinion that there was no justification for delay, then no order could have been passed without giving the owner (Desh Bandhu Sood), a reasonable opportunity to show-cause why such order should not be passed against him. He placed reliance on section 4-A (3) (b) proviso of Workmen's Compensation Act, 1923.
8. So far pleas urged by Mr. Maniktala, learned counsel for the insurance company is concerned, for the reasons to be recorded hereinafter, both must fail. As already observed, deceased was towing another vehicle, therefore, whether he was holding a valid driving licence or not, has no nexus with the accident in question.
9. This matter is no more res Integra in view of the decision of the Supreme Court in Jitendra Kumar v. Oriental Insurance Co. Ltd., : AIR2003SC4161 . What was held and is relevant for the purpose of this case, is extracted hereinbelow:
(9) We have heard the learned counsel for the respondents who has supported the orders of the State Commission as well as that of the National Commission. So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence. The question then is: can the insurance company repudiate a claim made by the owner of the vehicle which is duly insured with the company, solely on the ground that the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? Answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the insurance company in repudiating a claim where the driver of the vehicle had not contributed in any manner to the accident. Section 149 (2) (a) (ii) of the Motor Vehicles Act empowers the insurance company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the insurance company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed, i.e., damages incurred due to reasons other than the act of the driver.
(10) We notice that in the impugned order the National Commission has placed reliance on the judgment of this court in the case of New India Assurance Co. Ltd. : [2001]2SCR797 , which, in our opinion, has no bearing on this aspect of the case in hand. This court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this proposition of law. But then the judgment of this court in the case of New India Assurance Co, Ltd. (supra) does not go to the extent of laying down a law which empowers the insurance company to repudiate any and every claim of the insured (appellant) merely because he had engaged a driver who did not have a valid licence. In the instant case, it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act or omission of the driver. Therefore, in our considered opinion insurance company could not have repudiated the claim of the appellant.
10. Similarly, in United India Insurance Co. Ltd. v. Jamuna Bai, , the learned single Judge observed as under:
(6) Having heard the learned counsel for the parties, this court is of the view that under the terms of the policy itself, an insurance company is liable to third party for death of or bodily injury to any person caused by or arising out of use (including the loading and/or unloading) of the motor vehicles. So the liability here arose out of negligence in the unloading of the vehicle and not on account of negligent driving. The question of learner's licence would not be relevant for determining the liability of the appellant insurance company. The insurance company has not raised any defence that the vehicle in question was covered by proviso (A) to the aforesaid condition and, therefore, there is no question of considering that aspect of the matter in this appeal.
11. Applying the ratio of the aforesaid decisions of Hon'ble Supreme Court and Madhya Pradesh High Court to the facts of the present case, based on evidence as noted herein above, vehicle being stationary while deceased was towing the same with another vehicle, fake licence held by him (deceased) has no relevance much less nexus with the accident in question.
12. So far other plea urged on behalf of the insurance company regarding filing of earlier petition under Motor Vehicles Act, 1988, is concerned, there is enough material on record to suggest that the present petition under Workmen's Compensation Act, 1923, was maintainable.
13. For ready reference, order dated 7.6.1995 passed by the Motor Accidents Claims Tribunal (1), Shimla is reproduced:
The present claim petition has been filed by the petitioner for claiming compensation on account of the death of Gopal Thakur, father of the claimants-petitioners. The learned counsel appearing on behalf of claimants-petitioners has submitted that the present petition is required to be filed before the Commissioner, Workmen's Compensation (S.D.M., Urban), Shimla as per his statement recorded separately. The learned counsel appearing for respondents have no objection in case the present petition is returned to petitioners for presentation before the Commissioner, Workmen's Compensation, Shimla. Accordingly, the present petition is ordered to be returned to the counsel for the petitioners for presenting the same before the appropriate court.
Sd/-
MACT (1), Shimla
14. This order was passed on the statement of learned counsel for respondents-claimants as well as insurance company.
15. Another reason to take this view is that in the Motor Vehicles Act, 1988 under section 147 (1) (b) proviso (i) (a), insurance company was not required to cover the risk in case of a driver. Liability qua him is in terms of the policy and risk covered is under the Workmen's Compensation Act. In terms of the insurance policy, copy whereof is there on the file, legal liability was incurred and premium to cover such risk was also charged. In the face of the aforesaid order passed by Motor Accidents Claims Tribunal and its having attained finality intra-parties, plea regarding the earlier petition having been filed which precluded the respondent Nos. 1 to 3-claimants from maintaining the case under the Workmen's Compensation Act, 1923, has no merit and is accordingly rejected.
16. So far plea of Mr. Ashok Sharma, the learned counsel for the owner, that the Tribunal below has wrongly held his client liable to payment of interest is concerned, it needs to be upheld in view of the decision of the Supreme Court in Ved Prakash Garg v. Premi Devi, : AIR1997SC3854 . Nothing to the contrary has been brought to my notice on behalf of the insurance company. Ordered accordingly. Purpose of proviso being there in section 4-A of the Workmen's Compensation Act, 1923, appears to be that by giving an opportunity to the party concerned, that party would be able to justify that it is not liable for payment of any penalty or it need not be at the maximum, i.e., 50 per cent, as levied in the impugned order. It does not indicate as to whether any hearing was afforded to the owner of the truck in question before holding him liable for payment of penalty. As such, this plea needs to be upheld. Ordered accordingly.
17. No other point is urged.
18. In view of the aforesaid discussion, it is held as under:
(a) That the appeal filed by the insurance company, i.e., F.A.O. No. 403 of 1997 is hereby rejected;
(b) Appeal filed by the truck owner, i.e., F.A.O. No. 38 'of 1998 is allowed to the extent that interest of Rs. 80,238 at the rate of 6 per cent from 18.2.1994 will be payable by the insurance company and deficiency, if any, will be deposited on or before 30.6.2004 and this amount shall be apportioned equally amongst respondent Nos. 1 to 3;
(c) So far award allowing penalty to the extent of Rs. 40,119 against the owner of the vehicle above named is concerned, this part of the award is set aside and for this limited purpose, case is remanded to the Commissioner under the Workmen's Compensation Act, where the parties through their learned counsel are directed to appear on 31.5.2004. Commissioner below is further directed to hear the matter at the earliest by fixing a date for that purpose and thereafter pass final order by or before 30.6.2004. Parties will be free to make their submissions oral as well as in writing on this limited aspect before the Commissioner, who shall then dispose of the case strictly in accordance with law, without being influenced in any manner by anything said in this order.
(d) So far balance amount falling to the share of Geeta Devi, respondent No. 1 in terms of the order of the Commissioner below is concerned, the same be released in her favour by the Commissioner to her bank account, number whereof Mr. Verma submitted, will be filed within two weeks. So far amount deposited by the appellant in F.A.O. No. 38 of 1998 is concerned, its disbursal will abide by the decision of the Commissioner below. Parties will be free to approach this court for directions qua this amount.
(e) Costs on the parties.
19. Copy of this order will be made available to learned counsel for the parties by or before 22.5.2004. Registry is directed to send back the record so as to reach in the court of the Commissioner below well before the date fixed.