Kajal Kumar Das Vs. Kudremukh Iron Ore Co. Ltd. and ors. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 147 :[v.jagannathan,j] liability of insurer - requirements of policies and limits of liability - held, though a person may be a registered owner, yet for the purpose f awarding compensation, the courts will have to find out from the facts of each case as to who the real owner is. provisions of section 147 makes it clear that the policy of insurance will have to insure the person (the owner) against any liability which may be incurred by him (owner). therefore, unless there is a liability indemnifying the owner will not arise. in other words, the act presupposes that before calling upon the insurance company to satisfy the judgment and awards, it is a precondition that there must be actual liability being case on the insured and unless such a liability exists, the question of the insurance company being saddled with the responsibility to satisfy the judgment and award, does not arise. from the wordings used in sub-section (1) of section 149 that it is only where a judgment or award is obtained against the person insured by the policy, only then that the insurer is required to satisfy the judgment and award and not otherwise. on facts held, vehicle in question was under the exclusive control of the ksrtc, in the light of the terms and conditions of the agreement entered into by it, it is the ksrtc which has to be held as the owner of the bus in question for the purpose of m.v. act in the light of the definition as contained under section 2 (30) of the act. hence, having regard to the provisions contained in the act and taking into account the facts and circumstances of the case, the ksrtc is liable to pay the compensation and not the insurance company. [v. jagannathan, j.] motor vehicles act, 1988 - section 147 -requirements of policies and limits of liability - section 149 -duty of insurer to satisfy judgments and awards against persons inured in respect of third party risks - accident claim -judgment and award - responsibility of the insurance company or the ksrtc to satisfy the judgment and award -vehicles is, question were owned by the registered owners who had inured them with the insurance company - tribunal fastening % liability on the nwkrtc to satisfy the award -appealed against - tribunal fastening the liability on the insurance company with whom the registered owner had insured the bus - appealed against - held, though a person may be a registered owner, yet for the purpose of awarding compensation, the courts will have to find out from the facts of each case as to who the real owner is- provisions of section 147 makes it clear that the policy of insurance will have to insure the person (the owner) against by liability which may be incurred by him (owner). theref0re unless there is a liability fixed on th2 owner, the question of the insurance company indemnifying the owner will no arise. in other words, the act presupposes that before calling upon the insurance company to satisfy the judgment and awards, it is a precondition that there must be actual liability being cast on the insured and unless such a liability exists, the question of the insurance company being saddled with the responsibility to satisfy the judgment and award, does not arise. from the wordings used in sub-section(l) of section 149 that it is only where a judgment or award is obtained against the person insured by the policy, only then that the insurer is required to satisfy the judgment and award and not otherwise -on facts, held, the vehicle in question was under the exclusive control of the ksrtc, in the light of the terms and conditions of the agreement entered into by it, it is the ksrtc which has to be held as the owner of the bus in question for the purpose of m.v.act in the light of the definition as contained u/s 2 (30) of the act. - hence, having regard to the provisions contained in the act and taking into account the facts and circumstances of the case, the ksrtc is liable to pay the compensation and not the insurance company. appeal filed by the insurance company is allowed. appeal field by the nwkrtc is dismissed. - the learned advocate places reliance on the well known decision of the supreme court reported in. 1991 scc 675, wherein the supreme court had occasion to observe that it is perfectly permissible for criminal prosecutions and disciplinary proceedings to be instituted and to go on simultaneously. under these circumstances, a strong plea is made that the disciplinary proceedings should be allowed to be completed as they are quite independent and further more on the ground that the accused will not at all be prejudiced. the first of them is as rightly pointed out by the respondents' advocate the drain on the employer of having to pay subsistence allowance for long periods of time and, secondly, the inevitable prejudice caused to the employer in so far as if the disciplinary proceedings are to be held something like 5 to 10 years after the date of the incident, the proceedings themselves may be prejudiced if some of the vital witnesses have retired or are not available at that point of time. on the other hand, the second aspect of the matter which does not appear to have been gone into in the earlier decisions is that undoubtedly the usual argument is canvassed that the accused will be prejudiced if he 'discloses his defense'.one has to take a very practical and realistic view of the matter as in actual fact the burden of establishing the charges in the disciplinary proceedings is entirely on the employer and the employee like an accused in a criminal trial is only required to defend himself. , undoubtedly the witness will have to be forewarned and will take the necessary precaution to ensure that the evidence is of a better quality.m.f. saldanha, j. 1. the petitioner before the court is an employee of the kudremukh iron ore company ltd.(hereinafter referred to as 'the kil'). disciplinary proceedings have been instituted against him on an allegation that he has committed theft of the company's property. there is also a prosecution pending against the petitioner and the two reliefs that have been prayed for are that the disciplinary proceedings should be stayed until disposal of the criminal prosecution and, secondly, that the order of suspension passed against the petitioner on the ground that the criminal proceedings are pending should be reviewed.2. the petitioner's learned advocate has advanced an usual plea that if the petitioner disclosers his defense in the departmental proceedings that the witnesses who are common will be forewarned and that, therefore, he will be prejudiced in his defense in the criminal trial wherein an adverse verdict could result in a jail sentence. she further submits that the court of competent jurisdiction should be the first of the two forums to decide the charges against the petitioner and once that takes place, that the scope of the departmental enquiry will be considerably less.3. the grant of reliefs is seriously opposed by the respondents. the learned advocate places reliance on the well known decision of the supreme court reported in. 1991 scc 675, wherein the supreme court had occasion to observe that it is perfectly permissible for criminal prosecutions and disciplinary proceedings to be instituted and to go on simultaneously. there is no dispute with regard to this principle but what needs to be taken cognizance of is that the supreme court has in a large number of other decisions, while considering the advisability of the criminal trial preceding the disciplinary proceedings, have upheld the principle that generally it is advisable that the disciplinary proceedings should await the disposal of the criminal trial. the petitioner's learned advocate has relied on in kusheshwar dubey v. bharat coking coal ltd.,(1988-ii-llj-470). the supreme court in that case had occasion to consider the law threadbare and had relied on the following decisions:project manager, ongc v. lal chand wazir chand chandna, 1981 lab ic(noc) 160 (guj), ali mohd. v. chairman, t. a. and c., udampur, 1981 kash lj 185(j&k;),kushi ram v. union of india, 1974 lab ic 553 (hp), moulindra singh v. deputy commissioner, 1973 lab ic 1564 (gauhati), jang bahadur singh v. baij nath tiwari, (1969-i-llj-567) (sc), p.c. rama v. superintendent of police, kolar, air 1967 mys 220; tata oil mills co. ltd. v. its workmen, (1964-ii-llj-113), shaikh kasim v. superintendent of post office, : (1965)illj197mad , delhi cloth and general mills ltd. v. kushal bhan, (1960-i-llj-520] and shri bimal kanta mukherjee v. newman's printing works, 1956 lab ac 188 (lati-cal) before coming to the conclusion that even though there is no bar to the disciplinary proceedings preceding the criminal trial or for that matter in so far as there is no fixed order in which the proceedings should be taken up and disposed of, that as a general principle, having regard to the consequences to the accused and the possibility of rare prejudice resulting, the court held that the disciplinary proceedings must wait until the criminal trial is over. 4. the respondent's learned advocate has relied on another decision of this court reported in t. v. gowda v. state of mysore, (1975-ii-llj-513), wherein the effect of a verdict from a court on disciplinary proceedings was considered and the court had occasion to observe that the decision of the court does not necessarily bind or limit the disciplinary authority. the respondents' learned advocate submitted that as far as the company is concerned, since this was a case of theft that the company was duty bound to lodge a complaint with the law enforcement authority as there was certain property involved and as a criminal offence had taken place. she points out that having conformed to this obligation, the company cannot be virtually punished for the next several years on the ground that the criminal proceedings could not be disposed of by the court. it is her submission that this court must take a realistic view of the matter in so far as criminal proceedings where the accused is on bail inevitably take many years for disposal. she reinforces her argument by submitting that the outcome of that trial has no bearing on the disciplinary proceedings because the company is fully justified in holding its independent enquiry and passing independent orders which is the position in law. most importantly, what is submitted is that the company is seriously prejudiced by the fact that if the disciplinary proceedings are stayed and final orders cannot be passed that the company is required to pay subsistence allowance to the accused without his having done any work which is a heavy drain on the company and that too in the case of a person who has been accused of serious criminal acts. under these circumstances, a strong plea is made that the disciplinary proceedings should be allowed to be completed as they are quite independent and further more on the ground that the accused will not at all be prejudiced. the learned advocate has emphasised the fact that even if an adverse verdict results in the disciplinary proceedings, that it will not have any bearing whatsoever on the criminal case because the court is not bound by the decision in view of that fact that the charges are required to be independently proved.5. there is much substance in the submissions canvassed on behalf of the respondents. in the large number of decisions with regard to this aspect of the matter, to my mind two aspects seem to have been so far overlooked. the first of them is as rightly pointed out by the respondents' advocate the drain on the employer of having to pay subsistence allowance for long periods of time and, secondly, the inevitable prejudice caused to the employer in so far as if the disciplinary proceedings are to be held something like 5 to 10 years after the date of the incident, the proceedings themselves may be prejudiced if some of the vital witnesses have retired or are not available at that point of time. on the other hand, the second aspect of the matter which does not appear to have been gone into in the earlier decisions is that undoubtedly the usual argument is canvassed that the accused will be prejudiced if he 'discloses his defense'. one has to take a very practical and realistic view of the matter as in actual fact the burden of establishing the charges in the disciplinary proceedings is entirely on the employer and the employee like an accused in a criminal trial is only required to defend himself. the defense invariably consists of denials. i have yet to come across proper justification for the connotation'disclosure of defense' because there are no secrets involved in a defense and under these circumstances to my mind the law with regard to this aspect of the matter will have to be seriously reconsidered. i do concede that in criminal trials where the consequences are serious to the accused, a lot depends on the cross-examination of the prosecution witnesses, if the same witnesses have earlier been cross- examined in the disciplinary proceedings and for instance in cross-examination, if a witness has broken down in matters such as inconsistency, contradictions, etc., undoubtedly the witness will have to be forewarned and will take the necessary precaution to ensure that the evidence is of a better quality. on the second occasion, this is possibly one of the justifications on the basis of which the courts have time and again held that even though there is no bar, that it is desirable for the criminal trial to be concluded before the departmental enquiries. also, one needs to take cognizance of the fact that the evidence recorded in court is an 'evidence on oath and, therefore, the level of sanctity would be slightly higher. undoubtedly, these are aspects of the matter that have been thrown up for consideration in this proceeding and on which serious reconsideration of the earlier principles may require to be done.6. coming to the facts of the present case, having regard to the state of the law as it now exists, it will be necessary to direct that the disciplinary proceedings will have to be stayed until disposal of the criminal trial. however, having regard to the consequences to the company, liberty is granted to the respondents to apply to the criminal court on the basis of a copy of this judgment for an immediate expedited disposal of the trial in view of the fact that the company is otherwise required to continue paying the subsistence allowance almost indefinitely. if such an application is made, the learned magistrate shall consider the same and pass appropriate orders. with these directions, the petition to stand disposed of.