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2010 DIGILAW 602 (JK)

United India Insurance Co. Ltd. v. Sushma Devi

2010-12-08

MOHAMMAD YAQOOB MIR

body2010
1. Ved Parkash while driving Delux JKO2P/5325 lost his life, when the said bus rolled down the road. His dependants/legal heirs i.e. two minor sons and two minor daughters and the widow filed petition under `Workmen's Compensation Act' for grant of compensation to the tune of Rupees six lacs (6,00,000/-) with interest @ 18% per annum, same was resisted by the owner of the vehicle as well as by the Insurer (United India Insurance Company). 2. On the basis of respective pleadings the (Commissioner) (hereinafter referred to as authority), framed four issues, which read as under: a) what were the wages and age of the deceased driver at the time of accident; b) whether the deceased was holding a valid/effective driving license at the time of accident; c) whether the Respondent No.1 is to be indemnified by the Respondent No.2 in light of the Insurance Policy. d) Relief. 3. The authority after examination of the witnesses has recorded findings to the effect that the Vehicle was proved involved in the accident, same was insured with the United India Insurance Company. 4. The age of the deceased as per Post-mortem report was 45 years at the time of death, the monthly wages of the deceased were Rupees four thousand (4,000/-), and the driving license in favour of the deceased issued in the year 1982 has been renewed from time to time by licensing authority, so was holding a valid license. The respondent-Insurance Company could not prove the position of the license as otherwise. 5. Finally authority has concluded, that the deceased Ved Parkash was engaged as Driver by the respondent No. 1 therein, so died during the course of employment. Dependants of the deceased, as such are entitled for grant of compensation, so held entitled to an amount of Rs. 3,38,880/- and the Insurer (United India Insurance Co. Ltd.) was held liable to indemnify. 6. Appellant Insurance Company being dis-satisfied with the award, hence the instant appeal. 7. The contention of the Learned counsel for the respondents is that, the appeal is not maintainable for want of non compliance to 3rd Proviso to Sub Section (1) of Section 30 of Workmen's Compensation Act (hereinafter referred to Act 1923). In support of this contention Learned counsel has relied on the Judgment `State and others v. Commissioner Under Workmen Compensation Act' reported in 2010 (1) SLJ page 189. In support of this contention Learned counsel has relied on the Judgment `State and others v. Commissioner Under Workmen Compensation Act' reported in 2010 (1) SLJ page 189. In the reported Judgment similar objection was raised i.e. Certificate by the Commissioner was not accompanying the Memo of appeal, but however, the awarded money had been deposited with the Nazir of the court. Then the question arose as to whether that can be a substitute and compliance to 3rd Proviso, but while referring to Judgments: i) J&K SFC v. Ghulam Mohamad 1992 KLJ page 244; ii) Khet Ram Manohar Lal v. Sankar Mandal 1975 Lab. IC 274 iii) Firm Amar Nath Baldev Raj Forest Lessees v. Des Raj and two others KLJ 1989 page 89. 8. It was concluded that deposit of the award amount with Nazir, cannot be substitute for deposit of the award money with the Commissioner and a receipt of the Nazir cannot be a substitute for the certificate of the Commissioner. 9. In the instant case, cheque bearing No. 812460 amounting to Rs. 3,38,880/- drawn on J&K Bank in the name of Deputy Labour Commissioner Jammu dated 3.7.2009, has been placed on record alongwith an application shown addressed to Commissioner (Deputy Labour Commissioner) and in the memorandum of appeal, it is mentioned that the cheque infact was tendered in the office of the Deputy Labour Commissioner, but officials refused to receive the same due to absence of the Deputy Labour Commissioner, but in the application No. 376/09. In para-2 it is pleaded, "that the appellant could not deposit the entire awarded, amount with the Commissioner below and respondents 1 to 5 are taking steps to get the amount released from the court below. In case operation of the award impugned in the present appeal is not stayed during the pendency of the appeal and the amount deposited by the appellant is disbursed to the claimants, appellant shall suffer irreparable loss and injury, which cannot be compensated in any manner. Even appeal filed by the appellant will become infructuous." And the court while considering the said application vide order dated 14.7.2009 stayed the operation of the award, subject to deposit of the awarded amount in the court within four weeks. 10. Even appeal filed by the appellant will become infructuous." And the court while considering the said application vide order dated 14.7.2009 stayed the operation of the award, subject to deposit of the awarded amount in the court within four weeks. 10. In compliance thereof award amount has been deposited, but later on application has been moved that the award amount as deposited vide Bank draft dated 30.7.2009 may be returned, as the cheque for the amount was already accompanying the memorandum of appeal, same was permitted to be withdrawn, but however, position appears to be suspicious, as in the CMP No. 376/09 addition of hand written one line at the end of para-2 to the effect "Cheque in original is annexed with the appeal and reason for non deposit have been given in the appeal." 11. Now the question is, as to whether the deposit of the cheque is sufficient compliance to 3rd Proviso referred to above, answer has to be no, because in the Judgment titled J&K SFC v. Ghulam Mohamad reported 1992 KLJ 244 , it has been held: "It has been laid down, that a cheque, a bank draft, cash in deposit or any other kind of security is no substitute for the deposit of the amount with the Commissioner under the Act, and the memo of appeal accompanied by a certificate of the Commissioner to that effect. Court held that allowing any mode of deposit of Award money other than one laid down under Section, 30(1)(1) 3rd proviso would amount to rewriting law." 12. Whereas, in the Judgment reported in KLJ 1989 page 89 the appeal filed by the employer was accompanied by the Cheque of the awarded amount, but it was held: "It is the mandate of the law, the fulfillment of which is condition precedent for entertaining of appeal, as the words "no appeal by an employer under Clause(a) shall lie," makes it abundantly clear that non compliance makes the appeal incompetent." 13. Appeal in hand is not accompanied by the requisite certificate, therefore instead of certificate, the cheque accompanying the memo of appeal cannot be termed to be the compliance of the requirement of 3rd Proviso to Section 30 (1) of the Act 1923. Appeal as such is held not maintainable. 14. Even otherwise there is no merit in the appeal. Appeal in hand is not accompanied by the requisite certificate, therefore instead of certificate, the cheque accompanying the memo of appeal cannot be termed to be the compliance of the requirement of 3rd Proviso to Section 30 (1) of the Act 1923. Appeal as such is held not maintainable. 14. Even otherwise there is no merit in the appeal. The only contention of the Learned counsel for the appellant is that, the driver at the time of accident was not holding a valid license. It was the appellant, who had to prove the same before the authority. In connection thereof appellant had deposited the witnesses expenses. For summoning the Record Keeper of the Registering and Licensing Authority Shimla, Summon was issued and served, but witness did not turn up. It was the duty of the authority to ensure attendance by having resort to the powers under Order 16 of the Code of Civil Procedure, which the authority was empowered to do, as permissible under Rule 41 of the Workmen's Compensation Rules 1924. 15. The contention for a moment appeared to be attractive, but on scrutiny was found to be meritless. It is true that Rule 41 of the rules provide for applicability of certain provisions of the Code of Civil procedure, which include Order 16, Rules 2 to 21, but authority had permitted the dasti summons. Summons are shown to have been served on 11.2.2009, but when the case had been taken up on 16.2.2009, the said summon had not been placed on the record of the authority, means there was nothing on record to show that the Record Keeper was served, therefore authority closed the evidence. The position of service of the said summon appears to be suspicious for the reason of its non production before the authority. 16. That apart on the record of the authority, Driving License was available, which has been renewed from time to time. Even if original could not be verified from the Registering Authority, but still such defence is not available to the Insurer, because the employer (owner of the vehicle) had engaged the driver, who admittedly was in possession of the driving license, which admittedly has been renewed from time to time, then vehicle was being driven for quite sometime by the driver. This was enough for the employer to be satisfied, that the driver possesses valid driving license. This was enough for the employer to be satisfied, that the driver possesses valid driving license. On such basis it cannot be concluded that the terms of the Insurer's Policy have been violated. So even if Record Keeper would have appeared, still that could not make any difference. 17. The another contention that, in violation to route permit there were more passengers on board than permitted, but appellant has not proved the same. 18. Viewed thus, appeal is not only found incompetent, but is also devoid of merit, as such dismissed. The cheque as available on the record shall be send to the Commissioner (Deputy Labour Commissioner), who after encashment shall release the same in favour of the respondents (claimants) i.e. dependants of the deceased driver. Copy of the Judgment alongwith record of authority be sent back forthwith.