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2002 DIGILAW 184 (JK)

National Insurance Co. Ltd. v. Ab. Rehman Dentoo

2002-06-03

MUZAFFAR JAN

body2002
This appeal has been filed to set aside the award dated 18-02-2001 passed by Commissioner under Workmens Compensation Act, Kashmir Division, Srinagar (Dy.Labour Commissioner, Kashmir Division) in case titled Abdul Rehman Dentoo and others v. Manzoor Ahmed Bhat and Another. 2. It seems that Bilal Ahmed Dentoo was employed by respondent No. 5 as driver of his Truck No. 5244/JK01A. The truck met with an accident on 11.04.1997 near Keela Mode, Ramban, due to which the driver Bilal Ahmed Dentoo, died. Claim petition was filed before the commissioner under Workmens Compensation Act, on the main ground that since the deceased Bilal Ahmed Dentoo was under the employment of respondent No. 5 (Manzoor Ahmed) as a driver, therefore, the heirs of the deceased (respondents 1 to 4) be given compensation to be recovered from the Insurance Company, i.e., present appellant. The Commissioner under Workmens Compensation Act, considered the claim on merit and allowed compensation of Rs. 1,50,000/- to be recovered from the present appellant vide order dated 18.06.2001 which has been challenged in the present appeal. 3. The main submissions made in the appeal are that the accident took place due to negligence of the deceased Bilal Ahmed Dentoo, therefore, under law, the Insurance Company is not bound to pay compensation on the death of a driver to his legal heirs because the driver is not a third party and under the law compensation can be paid only to a third party. The respondents are not liable on this legal disability, to any compensation. The deceased Bilal Ahmed Dentoo did not have a valid driving licence; his driving licence was a fake and forged. On this ground also no compensation is permissible. 4. The respondents had initially filed a claim petition before the Motor Accidents Claims Tribunal which was rejected on the ground of jurisdiction. The Commissioner, under Workmens Compensation Act, was not competent to entertain second petition on the same grounds against the present appellant. Moreover, respondents 2 and 3 are shown as adult major brothers and respondent No. 4 is shown as adult major sister in the claim petition before the Commissioner and under section 2(d) of Workmens Compensation, compensation is permitted in favour of the widow or a minor brother or minor children or parents of the deceased, not in favour of adult members. On these submissions, it is prayed that the appeal be allowed. On these submissions, it is prayed that the appeal be allowed. Heard and considered the submissions of learned counsel for the parties at length. 5. The submission of learned counsel for the appellant that since the respondents had filed a claim petition before the Motor Accidents Claims Tribunal, and, the same was dismissed, therefore, the second petition would not be maintainable, is an objection which cannot be sustained and has to be rejected. The facts from record reveal that claim petition was filed before the Motor Accidents Claim Tribunal, but learned Tribunal did not proceed to decide the petition on merits, but refused to take cognizance on the grounds of jurisdiction without touching the merits of the claim petition. It is settled law that where a petition has been considered and decided on merits, then the second petition, on same facts and cause, would not be maintainable. In the instant case, the first petition has been decided on merits, therefore, the second petition would be maintainable. 6. The submission that since the driver of the vehicle was not having a valid driving licence and he was responsible to cause accident, therefore, on this legal disability, no compensation can be granted, has also to be rejected. Compensation, in view of the law laid down by the Supreme Court in AIR 1987 SC 1184, is permissible to a third party irrespective of the fact whether the persons involved in the accident was a gratuitous passenger or a passenger traveling on a valid ticket. Compensation has also been granted to the deceased labourer traveling in truck in case titled New India Assurance Company v. Smt.Shakuntla Devi and others, AIR 1997 J&K 40. The relevant portion of the judgment reads as under : "Motor Vehicle Act (59 of 1988), Section 147 -- Liability of insurance company -- Insurance company cannot disclaim liability in respect of particular class of persons or particular kind of vehicles victim of accident, a labourer traveling in truck -- covered under Section 147 and insurance company liable to pay compensation." 7. The objection of learned counsel for the appellant that since the driver of the vehicle did not have a valid driving licence and it was the driver who caused the accident, resulting in his death, therefore, the heirs of the deceased are not entitled to any compensation, also cannot prevail in view of the settled position of law laid down by the Apex Court. The Apex Court, while considering the grant of compensation when the driver of the offending vehicle was found either to have a defective driving licence or a fake driving licence, has held that the liability of the Insurance Company does not cease on this disability. The Insurance Company is bound to pay compensation and if it is found that the owner of the vehicle, with whom the Insurance company has contractual obligation, has violation of the terms and conditions of the policy of insurance willingly permitted a person to drive the vehicle knowingly that the said person does not have a valid driving licence, then even in such eventuality, the Insurance Company has to pay the liability to the third party, but recover the said from the owner of vehicle. This view has been taken by the Supreme Court in AIR 2001 SC 1419 and also in AIR 2001 Orissa 108. The Apex Court has also allowed compensation to the driver, who caused the accident and died as a result of the accident, in case titled Gurmit Kour and another v. state of Haryana and others (1999) 9 SCC 212, the relevant portion of which is reproduced as under:- "Motor Vehicles -- Generally -- Compensation -- Fatal accident -- Multiplier of 16 applied to case of death of driver sole bread winner earning a salary of Rs. 3000 per month plus Rs. 50 per day. Evidence Act, 1872 -- Section 45 -- Doctors evidence as to income of deceased not conclusive as such fact is not a doctors personal knowledge." 8. The next objection of learned counsel that the claimants who are shown as minors are not entitled to compensation is legally sustainable and has to be permitted. From perusal of the record, respondents 2 tol 4 are not shown as minors in the initial claim petition, therefore, u/s 2(d) of the Workmens Compensation Act, they are not entitled to compensation and to this extent, the appeal has to be permitted. 9. From perusal of the record, respondents 2 tol 4 are not shown as minors in the initial claim petition, therefore, u/s 2(d) of the Workmens Compensation Act, they are not entitled to compensation and to this extent, the appeal has to be permitted. 9. Therefore, the appeal to the extent of challenging validity of the award dated 15.06.2001 is not allowed, but it is held that adult respondents 2 to 4 are not entitled to receive any compensation from awarded amount. With this, the appeal is disposed of.