The Divisional Manager, the New India Assurance Co. Ltd. Rep by Its Manger Regional Office Vs. Manjamma and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/953292
CourtKarnataka High Court
Decided OnMar-18-2013
Case NumberMFA No. 33 of 2010 (WC)
Judge S.N. SATYANARAYANA
AppellantThe Divisional Manager, the New India Assurance Co. Ltd. Rep by Its Manger Regional Office
RespondentManjamma and Others
Excerpt:
(prayer: this mfa is filed u/s 30(1) of w.c. act against the order dated 21.10.09 passed in wca:cr:251/2008 on the file of the labour officer and commissioner for workmen compensation, davanagere district, davanagere, awarding a compensation of rs.3,25,365/- with interest @ 12% p.a.) 1. second respondent-insurance company in wca.cr.no.251/2008, on the file of commissioner for workmen’s compensation, davanagere, has come up in this appeal impugning the judgment and order dated 21.10.2009 so far as it pertains to saddling liability to pay compensation on it. 2. brief facts leading to this appeal are that husband of first claimant and father of claimants 2 and 3, namely dhanya kumar, who is said to be coolie in swaraz mazda bearing no.gds-7516 belonging to first respondent before commissioner and insured with second respondent is said to have suffered injuries in the course of his employment under first respondent in an accident which has taken place on 21.8.2008 resulting in his death. hence, claim petition was filed by his widow and two minor children seeking compensation for his death. in the proceedings before commissioner first claimant adduced evidence as pw.1 and produced in all 10 documents which are marked as exs.p1 to p10 to demonstrate the accident involving aforesaid swaraj mazda resulting in injuries to dhanya kumar leading to his death. in the said proceedings evidence was also led regarding his employment with first respondent before commissioner and his income. on behalf of second respondent/insurance company, one of its officer was examined as rw.1 and seven documents were produced and marked as exs.r1 to r7. on appreciation of oral and documentary evidence available on record, commissioner held that deceased dhanya kumar died in the course of his employment with first respondent and also held that claimants are entitled to receive compensation for his death in the aforesaid accident. 3. being aggrieved by the same, the present appeal is filed by insurance company contending that in the proceedings before commissioner no evidence is adduced to demonstrate that driver of offending swaraj mazda was having valid driving licence. per contra, it is stated that as could be seen from charge sheet which is produced and marked in said proceedings clearly indicates that driver is not only charged for the offence of rash and negligent driving resulting in the death of dhanya kumar but also charge sheeted for driving the vehicle without having valid driving licence as contemplated under section 3 of motor vehicles act. it is further stated that two registered notices were issued to the owner of offending vehicle, first respondent and driver of said vehicle by insurance company. inspite of said notice being duly served on both of them, they did not come forward before commissioner to demonstrate that driver of offending swaraj mazda at the relevant point of time was having valid driving licence. in that view of matter, judgment and order is impugned. 4. on going through the grounds of appeal and the finding of commissioner in the judgment and order impugned, following substantial questions of law arise for consideration: 1. whether commissioner was justified in accepting that driver of offending swaraj mazda bearing no.gds-7516 was having valid driving licence inspite of he being charged under section 3 of motor vehicles act? 2. whether commissioner was justified in holding that driver of offending vehicle was having valid driving licence in the absence of owner and driver responding to the notice issued by second respondent? 5. heard the counsel for appellant and as well as contesting respondents. perused the judgment and order impugned with reference to grounds of appeal and also looked in to the material available on record. on going through the same aforesaid substantial questions of law are held in the negative for the following : reasons admittedly, deceased dhanya kumar died in an accident while discharging his duty as cleaner in swaraj mazda bearing no.gda 7516 insured with second respondent-insurance company. it is also not in dispute that subsequent to said accident, based on investigation charge sheet is filed against the driver of offending vehicle. in the said charge sheet, it is seen that in addition to he being prosecuted for the offences of section 279 r/w 304 a ipc he is also prosecuted for the offence punishable under section 3 of motor vehicles act. section 3 of motor vehicles act deals with driving of motor vehicle without having valid driving licence. when police after investigation have come to know that driver of offending swaraj mazda was not having valid driving licence at the relevant time of accident, question of presuming that licence is there and policy condition is not violated and thereafter saddling liability to pay compensation on insurance company is erroneous, inasmuch as, amounting to non appreciation of material available on record. 6. in the instant case, it is further seen that insurance company has also taken necessary precaution in issuing notice to driver and owner of offending swaraj mazda calling upon them to produce copy of driving licence of the driver of offending swaraj mazda to demonstrate that policy condition is not violated in entrusting vehicle to the person not having valid driving licence and to ensure whether there is liability on the insurance company to pay compensation. in the absence of any reply being given by owner and driver of offending vehicle to the said notice, commissioner ought to have held that driver of offending vehicle was not having valid driving licence for both reasons ie., driver of offending vehicle being charged under section 3 of motor vehicles act and in not responding to the notice that was issued to him by insurance company. in that view of mater, this court feel that appeal filed by insurance company is required to be allowed and consequently, it is required to be absolved of its liability to pay compensation to claimants. 7. accordingly, appeal filed by insurance company is allowed. the judgment and order dated 21.10.2009 passed in wca.cr.no.251/2008 is modified absolving the liability of insurance company to pay compensation to claimants. however, the rejection of claim as against insurance company does not mean that claimants would not be entitled to receive compensation. they are at liberty to proceed against the owner of offending swaraj mazda for recovery of compensation awarded by commissioner. in view of the appeal being allowed, the amount in deposit is ordered to be refunded to appellant.
Judgment:

(Prayer: This MFA is filed U/S 30(1) of W.C. Act against the order dated 21.10.09 passed in WCA:CR:251/2008 on the file of the Labour Officer and Commissioner for workmen compensation, Davanagere District, Davanagere, Awarding A compensation of Rs.3,25,365/- with interest @ 12% P.A.)

1. Second respondent-insurance company in WCA.CR.No.251/2008, on the file of Commissioner for Workmen’s Compensation, Davanagere, has come up in this appeal impugning the judgment and order dated 21.10.2009 so far as it pertains to saddling liability to pay compensation on it.

2. Brief facts leading to this appeal are that husband of first claimant and father of claimants 2 and 3, namely Dhanya Kumar, who is said to be coolie in Swaraz Mazda bearing No.GDS-7516 belonging to first respondent before Commissioner and insured with second respondent is said to have suffered injuries in the course of his employment under first respondent in an accident which has taken place on 21.8.2008 resulting in his death. Hence, claim petition was filed by his widow and two minor children seeking compensation for his death. In the proceedings before Commissioner first claimant adduced evidence as PW.1 and produced in all 10 documents which are marked as Exs.P1 to P10 to demonstrate the accident involving aforesaid Swaraj Mazda resulting in injuries to Dhanya Kumar leading to his death. In the said proceedings evidence was also led regarding his employment with first respondent before Commissioner and his income. On behalf of second respondent/insurance company, one of its officer was examined as RW.1 and seven documents were produced and marked as Exs.R1 to R7. On appreciation of oral and documentary evidence available on record, Commissioner held that deceased Dhanya Kumar died in the course of his employment with first respondent and also held that claimants are entitled to receive compensation for his death in the aforesaid accident.

3. Being aggrieved by the same, the present appeal is filed by insurance company contending that in the proceedings before Commissioner no evidence is adduced to demonstrate that driver of offending Swaraj Mazda was having valid driving licence. Per contra, it is stated that as could be seen from charge sheet which is produced and marked in said proceedings clearly indicates that driver is not only charged for the offence of rash and negligent driving resulting in the death of Dhanya Kumar but also charge sheeted for driving the vehicle without having valid driving licence as contemplated under Section 3 of Motor Vehicles Act. It is further stated that two registered notices were issued to the owner of offending vehicle, first respondent and driver of said vehicle by insurance company. Inspite of said notice being duly served on both of them, they did not come forward before Commissioner to demonstrate that driver of offending Swaraj Mazda at the relevant point of time was having valid driving licence. In that view of matter, judgment and order is impugned.

4. On going through the grounds of appeal and the finding of Commissioner in the judgment and order impugned, following substantial questions of law arise for consideration:

1. Whether Commissioner was justified in accepting that driver of offending Swaraj Mazda bearing No.GDS-7516 was having valid driving licence inspite of he being charged under Section 3 of Motor Vehicles Act?

2. Whether Commissioner was justified in holding that driver of offending vehicle was having valid driving licence in the absence of owner and driver responding to the notice issued by second respondent?

5. Heard the counsel for appellant and as well as contesting respondents. Perused the judgment and order impugned with reference to grounds of appeal and also looked in to the material available on record. On going through the same aforesaid substantial questions of law are held in the negative for the following :

REASONS

Admittedly, deceased Dhanya Kumar died in an accident while discharging his duty as cleaner in Swaraj Mazda bearing No.GDA 7516 insured with second respondent-insurance company. It is also not in dispute that subsequent to said accident, based on investigation charge sheet is filed against the driver of offending vehicle. In the said charge sheet, it is seen that in addition to he being prosecuted for the offences of Section 279 r/w 304 A IPC he is also prosecuted for the offence punishable under section 3 of Motor Vehicles Act. Section 3 of Motor Vehicles Act deals with driving of motor vehicle without having valid driving licence. When Police after investigation have come to know that driver of offending Swaraj Mazda was not having valid driving licence at the relevant time of accident, question of presuming that licence is there and policy condition is not violated and thereafter saddling liability to pay compensation on insurance company is erroneous, inasmuch as, amounting to non appreciation of material available on record.

6. In the instant case, it is further seen that insurance company has also taken necessary precaution in issuing notice to driver and owner of offending Swaraj Mazda calling upon them to produce copy of driving licence of the driver of offending Swaraj Mazda to demonstrate that policy condition is not violated in entrusting vehicle to the person not having valid driving licence and to ensure whether there is liability on the insurance company to pay compensation. In the absence of any reply being given by owner and driver of offending vehicle to the said notice, Commissioner ought to have held that driver of offending vehicle was not having valid driving licence for both reasons ie., driver of offending vehicle being charged under Section 3 of Motor Vehicles Act and in not responding to the notice that was issued to him by insurance company. In that view of mater, this Court feel that appeal filed by insurance company is required to be allowed and consequently, it is required to be absolved of its liability to pay compensation to claimants.

7. Accordingly, appeal filed by insurance company is allowed. The judgment and order dated 21.10.2009 passed in WCA.CR.No.251/2008 is modified absolving the liability of insurance company to pay compensation to claimants. However, the rejection of claim as against insurance company does not mean that claimants would not be entitled to receive compensation. They are at liberty to proceed against the owner of offending Swaraj Mazda for recovery of compensation awarded by Commissioner.

In view of the appeal being allowed, the amount in deposit is ordered to be refunded to appellant.