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2010 DIGILAW 1998 (ALL)

New India Assurance Co. Ltd. v. Vimla Devi & Ors.

2010-07-09

ASHOK KUMAR ROOPANWAL, SATYA POOT MEHROTRA

body2010
Hon'ble Ashok Kumar Roopanwal, J.:- The present Appeal has been filed under Section 30 of the Workmen's Compensation Act, 1923 against the Order dated 1.5.2010 passed by the Workmen's Compensation Commissioner, Agra awarding compensation amounting to Rs.3,68,340/- with simple interest @ 12% p.a. in the event of default in payment of compensation within the prescribed period. It appears that the Claimants-Respondents no.1 to 5 filed a Claim Case under the Workmen's Compensation Act, 1923 against Mangal Singh (Respondent no.6 herein) and the Appellant-Insurance Company. The Case was numbered as W.C.A. No.128 of 2009. It was, inter-alia, stated on behalf of the Claimants-Respondents no.1 to 5 that the deceased Rajan Singh was employed with the Respondent no.6 herein i.e. Mangal Singh as driver for driving Tractor bearing Registration No. UP 85 T-5269 for a salary of Rs.4,000/- p.m. and Rs.100/- per day towards diet expenses; and that when on 15.7.2009, during the course of employment, the said Rajan Singh was driving the Tractor moving the same forward and backward for agricultural work, then the Tractor suddenly overturned and the said Rajan Singh was crushed under the Tractor and died. The Respondent no.6 herein (Mangal Singh) filed his Written Statement admitting the employment of Rajan Singh, occurrence of the accident and his (Mangal Singh) being the owner of the Tractor in question. As regards the salary paid to the said Rajan Singh, it was asserted by the Respondent no.6 herein (Mangal Singh ) in his Written Statement that salary of Rs.4,000/- p.m. was being paid to the said Rajan Singh. It was further stated by the Respondent no.6 herein (Mangal Singh) that the Tractor in question was insured with the Appellant-Insurance Company. The Appellant-Insurance Company in its Written Statement denied the averments made on behalf of Claimants-Respondents No.1 to 5 in the Claim Case. The Claimants-Respondents No.1 to 5 in support of their case filed copies of the Registration Certificate in respect of the Tractor in question, Insurance Policy in respect of the Tractor in question, General Diary of the Police Station concerned, Death Certificate and the Report in respect of the accident. No other document was filed by any of the parties. Smt. Vimla Devi (Claimant-Respondent No.1) was examined as a witness on behalf of the Claimants-Respondents No.1 to 5. In her statement, Smt. Vimla Devi reiterated the averments made in the Claim Case. No other document was filed by any of the parties. Smt. Vimla Devi (Claimant-Respondent No.1) was examined as a witness on behalf of the Claimants-Respondents No.1 to 5. In her statement, Smt. Vimla Devi reiterated the averments made in the Claim Case. Smt. Vimla Devi was cross-examined on behalf of the Respondent No.6 herein (Mangal Singh) as well as on behalf of the Appellant-Insurance Company. No other witness was examined on behalf of any of the parties. On the basis of the consideration of the material on record, the Workmen's Compensation Commissioner concluded that the deceased Rajan Singh was employed with Mangal Singh (Respondent No.6 herein) as driver for driving the Tractor in question, and the deceased Rajan Singh while driving the Tractor forward and backward near the Pumping Set during the course of employment, sustained injuries on account of the Tractor having overturned, and he (Rajan Singh) died on account of the said injuries. The Workmen's Compensation Commissioner further assessed the salary of the said Rajan Singh as Rs.4,000/-. The age of the said Rajan Singh was assessed as 40 years at the time of his death. It was further concluded that the Tractor in question was insured with the Appellant-Insurance Company on the date of the accident and the Premium covering the liability in respect of the driver had been paid, and therefore, the Appellant-Insurance Company was liable to pay compensation. On the basis of the above conclusions, the Workmen's Compensation Commissioner computed the amount of compensation as 3,68,340/-. The Appellant-Insurance Company has thereafter filed the present Appeal challenging the order dated 1.5.2010 passed by the Workmen's Compensation Commissioner, Agra. We have heard Shri Saurabh Srivastava, learned counsel for the Appellant-Insurance Company, and perused the record. Shri Saurabh Srivastava submits that the deceased Rajan Singh was not having any Driving Licence, and therefore, no liability could be fastened on the Appellant-Insurance Company. We have considered the submission made by Shri Saurabh Srivastava, and we find ourselves unable to accept the same. A perusal of the Written Statement filed on behalf of the Appellant-Insurance Company, copy whereof has been filed as Annexure-2 to the Affidavit accompanying the Stay Application filed with the Appeal, shows that no specific averment was made in the Written Statement that the deceased Rajan Singh was not having any Driving Licence on the date of the accident. A perusal of the Written Statement filed on behalf of the Appellant-Insurance Company, copy whereof has been filed as Annexure-2 to the Affidavit accompanying the Stay Application filed with the Appeal, shows that no specific averment was made in the Written Statement that the deceased Rajan Singh was not having any Driving Licence on the date of the accident. What was asserted in paragraph 13 of the Written Statement was as under:- "That unless the D.L. or the particulars thereof are produced or proved, that the applicants husband was a learner/driver on the captioned vehicle." The above-quoted paragraph shows that no specific pleading was made on behalf of the Appellant-Insurance Company regarding the deceased Rajan Singh having no Driving Licence on the date of the accident. Further, a perusal of the statement of Smt. Vimla Devi recorded before the Workmen's Compensation Commissioner, copy whereof has been filed as Annexure-3 to the Affidavit accompanying the Stay Application filed with the Appeal, shows that in her examination-in-chief the said Smt. Vimla Devi stated "@Hindi@". In her cross-examination by the learned counsel for the Owner of the Tractor in question (Mangal Singh-Respondent No.6 herein), Smt. Vimla Devi stated "esjs ikl muds ykblsaUl dh QksVks dkih ugha gSA". In her cross-examination by the learned counsel for the Appellant-Insurance Company, the said Smt. Vimla Devi stated "@Hindi@". In view of the above, it is evident that the factum of the deceased Rajan Singh having Driving Licence on the date of the accident was established by the evidence of the said Smt. Vimla Devi (Claimant-Respondent No.1) before the Workmen's Compensation Commissioner, and this is why, the point does not appear to have been pressed on behalf of the Appellant-Insurance Company before the Workmen's Compensation Commissioner during arguments. In the circumstances, the Appellant-Insurance Company cannot be permitted to raise the said plea for the first time in the present Appeal. In any case, in view of the evidence of the said Smt. Vimla Devi, we are satisfied that the factum of the deceased Rajan Singh having Driving Licence was established on the record. Shri Saurabh Srivastava then submits that notice as contemplated under Section 10 of the Workmen's Compensation Act, 1923 was not given in the present case. In any case, in view of the evidence of the said Smt. Vimla Devi, we are satisfied that the factum of the deceased Rajan Singh having Driving Licence was established on the record. Shri Saurabh Srivastava then submits that notice as contemplated under Section 10 of the Workmen's Compensation Act, 1923 was not given in the present case. Shri Srivastava refers to the averments made in paragraphs 7 and 9 of the aforesaid Written Statement filed on behalf of the Appellant-Insurance Company wherein it has been averred that no notice has been served upon the owner of the vehicle in question (Tractor) i.e., the said Mangal Singh (Respondent No.6 herein). We have considered the submissions made by Shri Saurabh Srivastava, and we find ourselves unable to accept the same. Even though the pleading was made in paragraphs 7 and 9 of the said Written Statement regarding the absence of notice to the owner of the vehicle in question (Tractor), but no evidence was led on behalf of the Appellant-Insurance Company to prove the said assertion. As noted above, neither any documentary evidence nor any oral evidence was led on behalf of the Appellant-Insurance Company before the Workmen's Compensation Commissioner. As noted above, neither any documentary evidence nor any oral evidence was led on behalf of the Appellant-Insurance Company before the Workmen's Compensation Commissioner. Even otherwise, the submission made by Shri Srivastava lacks merit as is evident from a perusal of Section 10 of the Workmen's Compensation Act, 1923 which is reproduced below: "Notice and claim.-(1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or, in case of death, within two years from the date of death: Provided that where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the disease: Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the workman to absent himself from work, the period of two years shall be counted from the day the workman gives notice of the disablement to his employer: Provided further that if a workman who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected: Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim- (a) if the claim is preferred in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or (b) if the employer or any one of several employers or any persons responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed had knowledge of the accident from any other source at or about the time when it occurred: Provided further that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause. (2) Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened, and shall be served on the employer or upon any one of several employers, or upon any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed. (3) The State Government may require that any prescribed class of employers shall maintain at their premises at which workmen are employed a notice-book, in the prescribed form, which shall be readily accessible at all reasonable times to any injured workman employed on the premises and to any person acting bona fide on his behalf. (4) A notice under this section may be served by delivering it at, or sending it by registered post addressed to, the residence or any office or place of business of the person on whom it is to be served, or, where a notice-book is maintained, by entry in the notice-book." Sub-section (2) of Section 10 of the Workmen's Compensation Act, 1923 contemplates giving of notice to the employer. Sub-section (1) of Section 10 of the Workmen's Compensation Act, 1923 provides that no claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given. However, clause (a) of the 4th proviso to sub-section (1) of Section 10 of the Workmen's Compensation Act, 1923, inter-alia, provides that the want of notice shall not be a bar to the entertainment of a claim, if the claim is preferred in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him, and the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred. In the present case, in view of the findings recorded by the Workmen's Compensation Commissioner, it is evident that the death of the Rajan Singh occurred on account of the accident which took place while he was driving the Tractor in question near the Pumping Set for agricultural work under the control of and in the course of employment of Mangal Singh (Respondent No.6 herein), and in the circumstances, clause (a) of the 4th proviso to sub-section (1) of Section 10 of the Workmen's Compensation Act, 1923 is fully applicable. Therefore, the Workmen's Compensation Commissioner could entertain the Claim Case even if the plea raised on behalf of the Appellant-Insurance Company regarding the absence of notice to the owner of the Tractor in question were to be accepted. In view of the above discussion, it is evident that no Substantial Question of Law is involved in the present Appeal. The Appeal, therefore, lacks merits, and the same is liable to be dismissed. The Appeal is, accordingly, dismissed.