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2004 DIGILAW 160 (ORI)

ORIENTAL INSURANCE CO. LTD v. RAJANI PARIDA

2004-03-19

M.M.DAS

body2004
M. M. DAS, J. ( 1 ) THIS appeal has been preferred by Oriental Insurance Co. Ltd. under section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') against the judgment dated 25. 6. 1999 passed in W. C. Case No. 64 of 1996. The said W. C. case was filed by respondent No. 1, wife of the deceased driver late Harichandra Parida. ( 2 ) THE case of the claimant-respondent no. 1 was that her husband was working as a driver under the respondent No. 2 and was engaged in driving Trax bearing registration No. OR 18-0624. On 17. 2. 1996 at about 11 p. m. while the deceased was driving the said vehicle and coming from rayagada to Gupteswar, on the way, met with an accident, as a consequence of which the deceased sustained severe bodily injuries and died at the spot. On notice being issued, the appellant insurer and the respondent No. 2, the owner of the vehicle, appeared before the Commissioner for Workmen's Compensation-cum-Joint labour Commissioner, Jeypore and filed their written statements. Respondent No. 2, the owner of the vehicle while admitting the fact of accident and that the deceased died during the course of his employment stated, inter alia, that the deceased was getting a wage of Rs. 2,000 per month and rs. 10 per day towards daily expenses. It has also been stated that the deceased was holding a valid driving licence and the vehicle was insured with the appellant. The policy number of the insurance was also disclosed in his written statement. The insurer, however, while denying the allegations of the claimant, inter alia, pleaded in the written statement that on verification of the case record in G. R. Case No. 117 of 1996 it was found that the driving licence no. 333 of 1995-96 as per the record of the office of R. T. O. , Koraput, was not issued to the deceased driver. It is, therefore, pleaded that as the deceased has no valid driving licence at the time of accident, the appellant insurer is not liable to pay any compensation. ( 3 ) LEARNED Commissioner for Workmen's Compensation after recording evidence and analysing the same along with the documents produced, passed the impugned judgment holding that the deceased was aged about 24 years and was getting a wage of Rs. ( 3 ) LEARNED Commissioner for Workmen's Compensation after recording evidence and analysing the same along with the documents produced, passed the impugned judgment holding that the deceased was aged about 24 years and was getting a wage of Rs. 1,700 per month at the time of accident and died in the said accident which arose out of and in the course of employment under respondent No. 2 and, therefore, the claimant is entitled to a compensation of Rs. 1,85,699. 50 along with simple interest at the rate of 12 per cent per annum from the date of accident, i. e. , 17. 2. 1996 till payment. ( 4 ) IN support of the grounds taken in the memorandum of appeal Mr. G. P. Dutta, learned counsel for the appellant, in substance, raised three questions, submitting that the said questions being substantial questions of law as envisaged under section 30 (1) of the Act, are required to be gone into in the present appeal. Firstly, he contended that even though the owner has filed a certified copy of the driving licence no. 333/95-96 showing that the deceased driver was authorized to drive a light motor vehicle on the date of accident, but there is no specific endorsement in the said licence authorizing him to drive the vehicle in question which is a transport vehicle. Thus for all practical purposes it should be held that there being no effective driving licence of the driver it amounts to breach of policy conditions and the insurer will not be liable to pay the compensation as directed by the Workmen's Compensation Commissioner. Secondly, he contended that the ratio of the decisions in New India Assurance Co. Ltd. v. Kamla, 2001 ACJ 843 (SC) and United India Insurance Co. Ltd. v. Lehru, 2003 ACJ 611 (SC), which are cases under the Motor Vehicles Act are not applicable to cases under the Workmen's compensation Act. Thirdly, it was submitted by him that the direction of the commissioner for Workmen's Compensation in the impugned award, directing the appellant to pay interest from the date of accident, i. e. , 17. 2. 1996 at a simple rate of 12 per cent per annum on the amount of compensation, is also untenable in law in view of the provisions of the Workmen's compensation Act. ( 5 ) MR. 2. 1996 at a simple rate of 12 per cent per annum on the amount of compensation, is also untenable in law in view of the provisions of the Workmen's compensation Act. ( 5 ) MR. G. N. Misra, learned counsel for the respondent No. 1-claimant submitted that the owner of the vehicle has produced a certified copy of the driving licence which shows that the same was renewed by the Licensing Authority of Koraput on 16. 1. 1995 and was valid till 15. 1. 2000 which covered the date of accident. The said licence authorized the said deceased driver to drive a light motor vehicle (LMV) and as per section 2 (21) of the Motor Vehicles Act, 1989 lmv means a transport vehicle with unladen weight below 7500 kilograms. It was submitted by him that the vehicle involved in the accident in the present case being a light motor vehicle, the deceased driver was duly licensed to drive the said vehicle. Mr. Misra relied upon an unreported decision of this court in United india Insurance Co. Ltd. v. Bishi Keshan barik, M. A. No. 189 of 1995; decided on 20. 1. 2003 and conceded that the decision of Apex Court in New India Assurance Co. Ltd. v. Kamla, 2001 ACJ 843 (SC), applies to a case under Workmen's Compensation act and thus the appellant has been rightly held to be liable to pay the compensation to claimant-respondent No. 1. In the above referred judgment though specific question regarding applicability of the ratio of the decision in Kamla 's case (supra), to a case under Workmen's Compensation Act was not raised, but this court has held that the principles laid down in the said decision of the Apex Court would apply to a case under the Workmen's Compensation Act. ( 6 ) THE points for determination in this appeal, therefore, are as follows: (i) Whether decision of the Apex Court in New India Assurance Co. Ltd. v. Kamla, 2001 ACJ 843 (SC) and United india Insurance Co. Ltd. v. Lehru, 2003 acj 611 (SC), passed in cases under the motor Vehicles Act are applicable to a case under Workmen's Compensation act? Ltd. v. Kamla, 2001 ACJ 843 (SC) and United india Insurance Co. Ltd. v. Lehru, 2003 acj 611 (SC), passed in cases under the motor Vehicles Act are applicable to a case under Workmen's Compensation act? (ii) Whether a person not specifically authorized to drive a transport vehicle can be said to have possessed a valid driving licence when the licence authorizes to drive a light motor vehicle without any specific endorsement in the driving licence for driving a transport vehicle? (iii) Whether the insurance company can be made liable to pay the interest on the compensation amount awarded by the Commissioner and, if so, from which date? ( 7 ) THIS court in Divisional Manager, orissa Forest Development Corporation ltd. v. Janakalata Barik, 2002 ACJ 1187 (Orissa), had the occasion to deal with the first point formulated above and analyzing the provisions under section 149 of the motor Vehicles Act came to the conclusion that in a case under the Workmen's compensation Act, the insurer is liable to pay the compensation amount even though on the date of accident the driving licence was not valid, but the driver had held a driving licence and was not disqualified to hold a driving licence. In such a case it was held that it cannot be said that there has been any violation of any specified conditions of the policy. In this context, it would be profitable to extract the proviso to section 147 (1) of the Motor Vehicles act which is as follows:"147. In such a case it was held that it cannot be said that there has been any violation of any specified conditions of the policy. In this context, it would be profitable to extract the proviso to section 147 (1) of the Motor Vehicles act which is as follows:"147. Requirements of policies and limits of liability.-Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-From the above it would be clear that the exceptions enumerated in the above proviso regarding the nature of liability which are not required to be covered under the insurance policy does not include a liability with regard to the death of a person arising out of and in the course of his employment, of the employee of a person insured by the policy, under Workmen's Compensation act, 1923. It is, therefore, clear that the special provisions of the Motor Vehicles act in respect of the liability of the insurer must prevail over the general provisions under the Workmen's Compensation Act in respect of compensation to a victim of motor accident. The fiction created by section 149 of the Motor Vehicles Act can be extended to judgments granting compensation under the Workmen's Compensation act also. ( 8 ) FURTHER, this court is of the view that workmen's Compensation Act is a welfare and beneficial legislation which makes provisions for special Tribunals to deal with cheaply and expeditiously disputes regarding compensation and is supplemented by the provisions of Motor Vehicles Act. The intention of the legislation being to provide speedy disposal of disputes relating to compensation to workmen and their dependants, the provisions of the act should be construed in such a manner so as to achieve the purpose for which it has been enacted. In view of the above, it is held that the decision in the cases of New india Assurance Co. Ltd. v. Kamla, 2001 acj 843 (SC) and United India Insurance co. In view of the above, it is held that the decision in the cases of New india Assurance Co. Ltd. v. Kamla, 2001 acj 843 (SC) and United India Insurance co. Ltd. v. Bishi Keshan Barik, M. A. No. 189 of 1995; decided on 20. 1. 2003, would be applicable to a case under Workmen's compensation Act. ( 9 ) NOW coming to the question as to whether in the absence of an endorsement in driving licence specifically authorising to drive a transport vehicle it can be held that the driver possessed a valid driving licence. The decision in Ashok Gangadhar maratha v. Oriental Insurance Co. Ltd. , 2000 ACJ 319 (SC), has been relied upon by Mr. G. N. Misra, learned counsel for the claimants. In the said case, the Apex Court has held:"to reiterate, since a vehicle cannot be used as transport vehicle on a public road unless there is a permit issued by the Regional Transport Authority for that purpose, and since in the instant case there is neither a pleading to that effect by any party nor is there any permit on record, the vehicle in question would remain a light motor vehicle. "it has been further held in the said decision that in the absence of an endorsement in the driving licence, it cannot be said that the driver did not have an effective licence to drive and as such the insurer is absolved of its liability to cover the liability of the insured. In this context, the decision of the apex Court in National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), can also be relied upon, where the Apex Court has after considering the various provisions of the Motor Vehicles Act, 1988 with regard to driving licence and interpreting the said provisions observed that the beneficial statute as is well-known must receive a liberal interpretation and even held that if a person does not hold an effective licence as on the date of accident he may be liable for prosecution in terms of section 181 of motor Vehicles Act but the insurer cannot be absolved of its liability. It has also been held that even in a case where a person holding learner's licence and there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence the same would run counter to the provisions of section 149 (2) of the Motor Vehicles Act and the insurance company would be liable to satisfy the award. ( 10 ) IN the instant case though the appellant took a specific plea in the written statement that the deceased driver had no valid driving licence, from the impugned judgment it would be seen that in spite of an opportunity being given to the insurer it has not discharged the said onus which lay heavily on it to establish that there has been a wilful breach of the policy condition on the part of the insured. I, therefore, hold that absence of an endorsement in the licence to drive a transport vehicle in the instant case, does not amount to breach of any of the policy conditions and the appellant on that ground is not absolved from its liability to pay the awarded amount. ( 11 ) IN support of the third point that the insurance company is not liable to pay the interest as awarded and at least not from the date as mentioned in the impugned judgment. Mr. Dutta, learned counsel for the appellant, has submitted that no liability to pay interest or penalty as envisaged under section 4-A of Workmen's Compensation Act can be fastened on the appellant insurer and even conceding for the sake of argument but not admitting that the insurer would be liable to pay the interest, the same can be applied only from the date when the payment of compensation falls due under section 4 of the Workmen's Compensation act. Mr. Misra, on the other hand, submitted that section 4-A (3) of the Workmen's compensation Act empowers the Commissioner to grant such interest from the date of accident as the compensation fell due from the date of the accident. Mr. Misra, on the other hand, submitted that section 4-A (3) of the Workmen's compensation Act empowers the Commissioner to grant such interest from the date of accident as the compensation fell due from the date of the accident. ( 12 ) CONSIDERING the above submissions made at the Bar, this court is of the view that mere mention about liability being of the employer in section 4-A (3) of the Act is not enough to exonerate the insurer to indemnify the employer in this regard in a case of accident involving a motor vehicle which required compulsory insurance under the provisions of the Motor Vehicles act. The primary liability of paying the compensation is also fastened on the employer as would appear from section 3 (1)of the Act. If the insurer is liable to indemnify the employer for the latter's liability to pay the compensation as visualized in section 3 (1) of the Act, there is no cogent reason to exonerate the insurer in paying interest fastened on the employer because of what is stated in section 4-A (3) of the act. If the liability of the insurer arises on the principal amount though the same is required to be paid by the employer as stated in section 3 (1) of the Act, by applying the same principle, the insurer's liability would arise to pay the interest awarded on the principal amount of compensation. The mere fact that section 4-A (3) has spoken about the 'employer' is not enough to exonerate the insurer. ( 13 ) THIS court, therefore, concludes that the ratio of the decisions in the cases of new India Assurance Co. Ltd. v. Kamla, 2001 ACJ 843 (SC) and United India Insurance Co. Ltd. v. Lehru, 2003 ACJ 611 (SC), also applies to cases under the Workmen's Compensation Act, 1923. Absence of specific endorsement in the driving licence to drive transport vehicle in case of light motor vehicle does not make the driving licence ineffective so as to hold that there has been a breach of policy condition and interest awarded on the compensation by the Commissioner under the Workmen's compensation Act is also to be paid by the insurance company. Since in this case, in spite of an opportunity being made available to the insurer it has not discharged the onus of establishing that there has been wilful breach on the part of the insured of the contract of insurance, there is no scope for this court to remand the matter to the forum below to adjudicate inter se liability between appellant insurer and the insured (owner ). ( 14 ) IN the result, therefore, the appeal is devoid of merit and is dismissed. Appeal dismissed.