The National Insurance Co. Ltd. Vs. Smt. Manisha Chagan Karande and ors. - Court Judgment

Excerpt:
- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - 1 to 5 filed an application under the workmen's compensation act claiming compensation from both the appellant as well as the respondent no. 4. the application was contested by both, the insurance company as well as the employer. he submits that although under the motor vehicles act, 1988 the insurance company cannot take any pleas which are contrary to the pleading of the owner of the vehicle without leave of the court, under the workmen's compensation act the insurance stands on the better footing.nishita mhatre, j.1. this first appeal has been filed against the order of the commissioner for workmen's compensation under which the claimants i.e. respondent nos. 1 to 5 have been awarded compensation of rs. 2,11,790/-along with the simple interest at the rate of 9% per annum from 16.5.2001 till actual payment. a penalty of rs. 25,000/- and costs of rs. 1000/- have also been awarded.2. the deceased was the husband of the 1st respondent, the father of respondent nos. 2 and 3 and the son of the 4th and 5th respondent. he was driving a jeep on 15.5.2001 when he met with an accident. as a result of this accident and the injuries sustained by him, the deceased expired. his relatives i.e. respondent nos. 1 to 5 filed an application under the workmen's compensation act claiming compensation from both the appellant as well as the respondent no. 6, his employer.3. it was the contention of the claimant that the deceased was an employee of the respondent no. 6 and he was driving employer's vehicle when he met with an accident. it was pleaded that the accident had arisen out of and in the course of employment and, that therefore, the claimants were entitled to compensation under the workmen's compensation act.4. the application was contested by both, the insurance company as well as the employer. initially, it was decided ex-parte. however, thereafter both the insurance company and the employer had got ex-parte order set aside and the claim was decided after the trial.5. the claimants examined respondent no. 1 herein i.e. the widow of the deceased. she stated on oath that her husband was an employee of the respondent no. 6 and that he was driving the jeep which was owned by the respondent no. 6 when he met with an accident. in her cross-examination she denied the suggestion that her husband was not employed with respondent no. 6.6. respondent no. 6 examined himself and deposed that he had signed the claim form which was filled in by the surveyor who had come to the garage where the jeep was being repaired after the accident. he has also deposed that the deceased was his employee and was being paid a salary of rs. 2000/- per month. he has stated categorically that the contents of the insurance claim form were not filled in by him but by somebody else. the suggestion of the advocate for the workman that the contents of the claim form were read over to him, has been denied by respondent no. 6. the representative for the insurance company had suggested in his cross-examination of this witness that the claim form showing that the person driving the vehicle at the time of the accident was his friend, had properly been filled in. the suggestion has been denied by the witness. he has also stated that the surveyor of the insurance company had sold the vehicle and paid an amount of rs. 55,000/- to him. he has further denied the suggestion put to him that the deceased was not his driver and that he was not being paid any salary.7. the investigating officer of the insurance company i.e. the appellant herein was also examined. he has stated that he had no material to indicate that he was authorized to depose on behalf of the divisional manager who has signed the written statement. he has further conceded that there was nothing on record to indicate that he was the investigating officer who had filled in the claim form. he conceded that there was no contention raised in the written statement of the insurance company to the effect that the deceased was the friend of respondent no. 6, the employer who was insured.8. the commissioner for workmen's compensation has, after assessing the evidence on record, held that the deceased was a workman within the meaning of the workmen's compensation act. it has further been held that he was employed on a monthly salary of rs. 2000/- and that he was driving the jeep at the behest of the employer when he met with an accident on 15.5.2001. the commissioner has then calculated the compensation payable under the workmen's compensation act by taking into consideration the age of the deceased and the relevant factor and has awarded rs. 2,11,790/- to the claimants.9. mr.singh appearing for the insurance company submits that the commissioner has drawn directly contrary conclusions and inferences and, therefore, the order is unsustainable. he submits that, on the one hand the commissioner had observed that the claim form shows that the deceased was a friend, and on the other, the commissioner had held that he was a paid driver of the employer. the learned advocate then submits that the claimants or their so-called employer should have brought on record some material documents to indicate that there was an employer-employee relationship between the two. he submits that although under the motor vehicles act, 1988 the insurance company cannot take any pleas which are contrary to the pleading of the owner of the vehicle without leave of the court, under the workmen's compensation act the insurance stands on the better footing. he buttresses this contention by relying on the judgment of the supreme court in the case of national insurance co. ltd. v. mastan and anr. reported in : (2006) 2 scc 641. the learned advocate has then pointed out that the aforesaid claim form had been signed by the respondent no. 6 and that indicates that the driver was a friend of the owner of the vehicle. he submits that sr.no.3 of the claim form requires particulars of the driver at the time of the accident. one of the particulars required is, whether he was a paid driver or the owner's relative or friend. instead of stating that the driver was a paid driver, the respondent no. 6 has chosen to describe the driver as his friend. he therefore submits that such a claim on behalf of the relatives of the deceased ought to have been dismissed.10. the learned advocate for the claimant submits that the employer had stepped into the witness box and categorically asserted that the deceased was his paid employee and, therefore, the court had accepted this evidence and had granted compensation. the learned advocate further submits that there was no reason for respondent no. 6 to have conceded that the deceased was his paid driver when respondent no. 6 has also been saddled with payment of penalty, besides being jointly and severally liable to pay compensation. he submits that there is no perversity in this finding which merits any interference from this court.11. the learned advocate for the respondent no. 6 i.e. the owner of the vehicle, points out that the entire form has been filled in with black ink, whereas the signature of the owner is in blue ink. he submits that the owner has deposed before the court that he had only appended the signature to a blank form and that he was not aware of the contents of the form. the learned advocate further submits that there is no suggestion to the claimant that the driver was a friend of the owner of the vehicle. he also points out that the owner of the vehicle has denied the suggestion put to him that the driver was his friend. he has also in his cross-examination deposed that the contents of the claim form were not filled in as instructed by him and that the officer of the insurance company had only requested him to sign the claim form.12. after perusing the evidence and the judgment of the commissioner for workmen's compensation, in my opinion, the judgment and order impugned in this appeal need not be set aside. the evidence on record establishes that the deceased was an employee of the respondent no. 6. he was a paid driver and was driving the jeep in that capacity when he met with an accident. further more, although the claim form shows that the driver has been described as a friend of the owner, that description was filled in by the officer of the insurance company as seen from the deposition of the owner of the vehicle. there is no material on record in the written statement filed by the insurance company indicating that the owner was not the employer of the deceased. moreover, when the owner has been made jointly and severally liable to pay the compensation, there was no need for him to admit that the deceased was his employee without it being true. besides, he has been made responsible solely, for paying penalty on the compensation awarded.13. in these circumstances, i find that the commissioner has appreciated the evidence on record correctly and, therefore, there is no need to interfere in the matter. once it has been accepted that the driver was a paid employee of the owner of the vehicle and had met with a fatal accident arising out of and during the course of his employment, the commissioner for workmen's compensation had no option but to grant compensation in accordance with the workmen's compensation act.15. accordingly, the commissioner has granted the compensation and has directed the payment of penalty and costs. there is no reason to differ from the view taken by the trial court and hence the appeal deserves to be dismissed.16. appeal dismissed. the amount deposited with the commissioner, including penalty, costs and accrued interest, if any, shall be paid over to the applicants.17. in view of dismissal of the appeal, civil application no. 1874 of 2003 does not survive and stands dismissed.