Research › Search › Judgment

Orissa High Court · body

2003 DIGILAW 46 (ORI)

United India Insurance v. Bishi Keshan Barik

2003-01-20

B.P.DAS

body2003
JUDGMENT B. P. DAS, J. — Heard Shri A.K. Mohanty for the appellant and Shri P.N. Misra for respondents. 2. This is an appeal under Section 30 of the Workmen’s Compensation Act, 1923 at the instance of the insurer-United India Insurance Company Limited and is directed against the judgment dated 23.12.1994 passed by the Commissioner for Work¬men’s Compensation -cum- Assistant Labour Commissioner, Sambalpur (hereinafter called “the Commissioner”) in W.C. Case No. 10 of 1994 awarding a sum of Rs. 88,548/- compensation in favour of respondent No.1-Bishi Keshan Barik for the death of his son-Sribachha Barik on 26.1.1994 in a motor vehicular accident and saddling the liability of payment of compensation on the insurer. 3. The case of claimant, i.e., present respondent No.1, was that his son-Sribachha Barik was working as a driver in the tractor bearing registration number OR-15-6962 belonging to respondent No.2 for last two years and on 26.1.1994 while the deceased was engaged in ploughing the agricultural land of the owner by the tractor, the said tractor capsized and the deceased pressed under the tractor and died at the spot. The father of the deceased filed an application claiming compensation alleging therein that the death of the deceased in the accident arose in course of and out of his employment as a driver of the tractor and the deceased was getting Rs. 1,000/- per month as wages from the owner of the tractor at the time of his death. The owner of the tractor filed his written statement admitting the employment, accident, death and the wages of the deceased, as well as disclos¬ing the fact that the tractor was validly insured with the present appellant. The insurer filed its written statement admit¬ting that the tractor was insured with it but denied its liabili¬ty to pay the compensation on the ground that the driver did not have a valid driving licence at the relevant time. 4. The Commissioner on the pleadings of the parties framed as many as four issues and on evaluating the materials on record came to hold that the deceased died in the accident which arose in course of and out of his employment as a driver of the tractor and the said tractor was validly insured with the present appel¬lant on the date of the accident. The Commissioner considering the age and wages of the deceased assessed the compensation at Rs. The Commissioner considering the age and wages of the deceased assessed the compensation at Rs. 88,548/- and directed the insurer to pay the same. 5. The insurer in this appeal has challenged the award on the ground that there was no valid driving licence with the deceased to drive the vehicle. According to the learned counsel for the appellant, the claimant in his evidence has stated that the age of the deceased at the time of the accident was 22 years. The claimant also stated in his evidence that the deceased learnt driving since 1988-89. Shri Mohanty for the appellant capitalis¬ing on the aforesaid statements of the claimant, i.e., the father of the deceased, makes an effort to convince this Court that during 1988-89 as the deceased was only aged about 16 years, he could not have obtained any licence at that age as the same was not permissible under the Motor Vehicles Act. That apart, his further case was that neither the claimant nor the owner of the vehicle had produced any valid D.L. before the Commissioner for which the Commissioner has gone wrong in overlooking this aspect of the case and saddling the liability on the insurer. This forceful argument of Shri Mohanty has persuaded me to look at the L.C.R., more particularly, the written statement filed by the insurer before the Commissioner. At the out set I may make it clear that an appeal u/s. 30 of the W.C. Act can be admitted only when substantial question of law is involved in the same. A bare look at the written statement filed by the insurer of the vehicle tends to reveal that the insurer in paragraph 3 thereof did not admit that the deceased was working as a driver of the tractor and prayed for a direction to the owner to produce the R.C. Book as well as the D.L. of the deceased. At the same breath in para¬graph 4 of the written statement, the insurer did not admit the factum of accident and the death of the deceased. In paragraph 5, the insurer did not admit the contents of paragraphs 6 and 7 of the application. Except bare denial of the facts, no specific pleading of proof by the insurer has been made in its written statement and the same was filed in a casual manner by denying only the fact without making any specific plea. In paragraph 5, the insurer did not admit the contents of paragraphs 6 and 7 of the application. Except bare denial of the facts, no specific pleading of proof by the insurer has been made in its written statement and the same was filed in a casual manner by denying only the fact without making any specific plea. To call upon the owner of the vehicle to produce the D.L. of the driver, who was driving the vehicle at the time of occurrence, cannot take the place of specific pleading of proof. In the absence of any pleading of proof by the insurer, it cannot be held that the person, who was driving the vehicle at the relevant time was not holding a valid D.L. (See 1994 (II) O.L.R. 336 : The Oriental Insurance Co. Ltd. v. Abdul Sahid Khan). 6. The objection raised by the counsel for the appellant regarding issuance of D.L. to an under-aged boy also does not hold good because the claimant has only stated in his evidence that his son learnt driving since 1988-89 and his son had a D.L. So, there is nothing in the evidence of the claimant to indicate that the deceased was holding the D.L. since 1988-89. Therefore, the objection of the appellant on this score being not tenable is rejected. 7. Now the question to be decided is whether the objection regarding D.L. which had not been taken or agitated before the Commissioner can be agitated for the first time in this appeal. It is a fact that the findings of the Commissioner in regard to insurance coverage of the vehicle as well as the death of the deceased in the accident arising out of and in course of his employment are not in dispute. Only the factum of D.L. is in dispute. For the first time, such a plea has been taken by the insurer in this appeal as there was no specific pleading of proof before the Commissioner in that regard. The question of validity of the D.L. is a mixed question of fact and law and, therefore, the same cannot be raised for the first time in this appeal because the scope of appeal is confined only to consideration of substantial question of law. The question of validity of the D.L. is a mixed question of fact and law and, therefore, the same cannot be raised for the first time in this appeal because the scope of appeal is confined only to consideration of substantial question of law. In the case at hand, there is no pleading in the written statement that the driver of the vehicle in question did not have a valid D.L. on the date of the acci¬dent. It is not necessary at all either for the claimant or the owner to prove that the driver had a valid D.L. on the date of the accident. If the appellant in fact was disputing or raising the question that the driver of the vehicle did not have a valid D.L. at the time of the accident, it was open to the insurer to take such a stand by filing additional written statement. The said plea can not be entertained in this appeal as the scope of the appeal is totally limited to consideration of substantial question of law, as stated earlier. That apart, the Apex Court in New India Assurance Co. Shimla v. Kamla, A.I.R. 2001 S.C. 1419, held that the insurer and the insured are bound by the condi¬tions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer, who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to third parties, if there was any breach of policy condi¬tions on account of the vehicle being driven without a valid driving licence. 8. For the reasons stated above, while dismissing the appeal as the same does not involve any substantial question of law, I observe that if an application is filed before the W.C. Commissioner by the insurer-appellant highlighting the question of validity of the driving licence, the same shall be decided by the W.C. commissioner. 8. For the reasons stated above, while dismissing the appeal as the same does not involve any substantial question of law, I observe that if an application is filed before the W.C. Commissioner by the insurer-appellant highlighting the question of validity of the driving licence, the same shall be decided by the W.C. commissioner. In the event the insurance company succeeds in establishing that there was breach of the policy condition as the driver of the vehicle in question did not have a valid driving licence on the date of the accident, the Commissioner shall direct the insured vehicle owner to pay that amount to the insurer, failing which the insurer shall be allowed to recover the amount so paid to third party from the insured person. 9. The misc. appeal is dismissed with the observation made above. No cost. Appeal dismissed.