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2013 DIGILAW 1732 (ALL)

National Insurance Co. Ltd. v. Saba Parveen

2013-07-02

KARUNA NAND BAJPAYEE, RAKESH TIWARI

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JUDGMENT 1. Heard counsel for the appellant and perused the impugned award. This First Appeal From Order filed by the National Insurance Company Ltd. Challenges the validity and correctness of the award dated 11.4.2013 passed by Employee's Compensation Commissioner/Labour Commissioner, Azamgarh in E.C.A. No. 21 of 2012, Saba Parveen and others v. Lohit and others whereby the claimants have been awarded a sum of Rs. 6,80,137.50P along with 12% simple interest as compensation in view of death of Liyakat Ahmad, husband of claimant respondent No. 1 and father of respondent Nos. 2 to 6. 2. Brief facts of the case are that Liyakat Ahmad was employed as driver on Tata Indica Car No. UP 54F-2998 owned by respondent No. 7 -Lohit son of Prabhat, resident of Chowk, P.S. Kotwali, Tehsil Sadar, district Azamgarh. On the fateful day i.e. 25.11.2011 he was taking the aforesaid car from Azamgarh to Lucknow on the instructions of his employer/owner of the car Sri Lohit aforesaid. The car met with an accident near Sukul Bazar with a tractor trolley which was standing in the middle of the road without any indicator/light on. Liyakat Ahmad, driver of the car could not see the trolley and dashed with its rear portion and suffered grievous injuries. He was taken to B.H.U. on 28.11.2011 and he succumbed to the injuries there. Liyakat Ahmad was 40 years of age at the time of his death. 3. Claim Petition E.C.A. No. 21 of 2012 was preferred by the claimant respondent Nos. 1 to 6 against the appellant insurance company as well as owner of the vehicle claiming a sum of Rs. 8,21,680/- along with 18% interest. 4. It appears that initially the owner of the vehicle did not appear before the Workmen's Compensation Commissioner for certain reasons which are disclosed in the impugned award and are referred to at later stage in the judgment. 5. On receipt of the notices, the appellant insurance company appeared in the case and contested the claim by filing its written statement. During filing of evidence, an application was moved by the appellant insurance company for summoning the vehicle owner, who subsequently appeared before the Commissioner and moved an application for recall of the order to proceed ex parte. The said order was recalled and he filed his written statement as well as documents in evidence in support of his case. 6. During filing of evidence, an application was moved by the appellant insurance company for summoning the vehicle owner, who subsequently appeared before the Commissioner and moved an application for recall of the order to proceed ex parte. The said order was recalled and he filed his written statement as well as documents in evidence in support of his case. 6. The car owner admitted the accident and the claim stating that he is owner of the aforesaid Indica car; that Liyakat Ahmad was employed by him as driver on monthly salary of Rs. 7500/- in addition to Rs. 2000/- for food per month; that insurance, registration of the car and other papers were in force and effective on the date of accident i.e. 25.11.2011 and that Liyakat Ahamad also possessed a valid and effective driving licence when he was taking car from Azamgarh to Lucknow on his instructions on normal course of his duty, but he died as a result of fateful accident as stated above and that his indica car involved in the accident was insured with the appellant insurance company under policy No. 452103/31/11/6700010075 for the period 5.7.2011 to 4.7.2012 which was valid and effective on the date of accident. It was also averred that some months back, a person had contacted him claiming himself to be the investigator of the insurance company who made certain inquiries from him with regard to the accident and was informed that claim was substantially correct and Liyakat Ahmad was his employee. Thereupon, the said investigator had advised him to deny the employment of Liyakat Ahmad otherwise he would be in trouble with Income Tax and other Govt. departments. It was on account of misrepresentation and undue persuasion by the said investigator that he had given him in writing that Liyakat Ahmad was not under his employment. 7. On its part, the appellant insurance company denied the claim in toto disputing employment of Liyakat Ahmad on basis of investigator's report and stating that claim application against the appellant company is not maintainable. It was also stated that there was no evidence filed by the claimant regarding the accident such as FIR, charge-sheet, site plan and treatment by doctor in the hospital including prescriptions, cash memos, vouchers and even the post-mortem report. It was also stated that there was no evidence filed by the claimant regarding the accident such as FIR, charge-sheet, site plan and treatment by doctor in the hospital including prescriptions, cash memos, vouchers and even the post-mortem report. The appellant further took a stand that Liyakat Ahmad was not an employee of Sri Lohit, owner of the vehicle and in fact no such accident had taken place on 25.11.2011 as claimed with the Indica car aforesaid and that Liyakat Ahmad had neither died nor injured in the claimed accident; he was also not earning Rs. 9,500/- as wages in his employment as driver of aforesaid Indica car of Sri Lohit and that he was also not having a valid and effective driving licence at the time of his death. His age as well as liability to pay claim was also disputed. 8. The claimants in support of their case had submitted post-mortem report, FIR, prescriptions for treatment of Liyakat Ahmad, his bed head ticket, driving licence and police form No. 340 which is in the form of final report whereas Sri Lohi, owner of the vehicle had filed insurance policy, its registration certificate etc. which established that the aforesaid Indica car was duly covered by the said policy issued by, the appellant insurance company. 9. On the basis of the pleadings of the parties, the Compensation Commissioner, framed the following issues: (Vernacular matter omitted.... Ed) 10. It appears that whole case of the insurance company was based upon report of the investigator and letter dated 3.11.2013 given by Sri Lohit in writing on persuasion and threat extended by the Investigator denying employment of Liyakat Ahmad on the aforesaid Indica car No. UP 54F-2998. It appears that it was also argued before the Commissioner that claimant No. 1 Saba Parveen, wife of Liyakat Ahmad had remarried and therefore she can no longer be classified as dependant of the deceased. 11. After hearing counsel for the parties, the Compensation Commissioner held that investigator of the insurance company is an interested witness and is employee of the company. In this regard, he placed reliance upon the judgment rendered in New India Insurance Co. Ltd. v. Rajendra Prasad (TAC 2008(4) page 610) : (AIR 2008 (NOC) 11) rendered by Allahabad High Court. 11. After hearing counsel for the parties, the Compensation Commissioner held that investigator of the insurance company is an interested witness and is employee of the company. In this regard, he placed reliance upon the judgment rendered in New India Insurance Co. Ltd. v. Rajendra Prasad (TAC 2008(4) page 610) : (AIR 2008 (NOC) 11) rendered by Allahabad High Court. The Compensation Commissioner also recorded a finding that any statement given by a person outside the court could have no relevance viz-a-viz his statement in the court, hence denial of employment vide letter dated 3.11.2012 could not be of any relevance as the owner who had been got summoned on the application filed by the insurance company, had admitted on oath in the proceedings before the Commissioner that Liyakat Ahmad(since deceased) was his employee and was being paid Rs. 9500/- per month. As regards second marriage of claimant No. 1- Saba Parveen, the insurance company could not prove that she had remarried as there was neither oral nor documentary evidence produced in this regard. Statement of the vehicle owner Sri Lohit as well as wife of the deceased -Saba Parveen could not be shaken even by rigorous cross examination by the appellant insurance company. 12. Thereafter, relying upon the judgment rendered in Divisional Manager, United India Insurance Co. Ltd. v. Smt. Reshma Khatoon and others (TAC 2003(3) page 580) : (2003 All LJ 2377) wherein this High Court has held that once employment is accepted by the vehicle owner, it does not require any additional or other material for its proof, the Compensation Commissioner recorded a categorical finding that employment of Liyakat Ahmad, since deceased with Sri Lohit- owner of the vehicle, was proved, who had admitted employment of aforesaid deceased before the court. 13. So far as salary is concerned, the Compensation Commissioner held that according to Govt. Gazette notification dated 31.5.2010, salary of deceased Liyakat Ahmad would come to Rs. 7500/- as was claimed apart from the food allowance of Rs. 2000/- per month. 14. After discussing the difference in age of the deceased as given by the claimant in her statement, inquest report and post-mortem report as well as in his driving licence where his date of birth was recorded as 3.5.1971, the Commissioner ascertained age of the deceased to be about 40 years, six months i.e. about 4\ years. 2000/- per month. 14. After discussing the difference in age of the deceased as given by the claimant in her statement, inquest report and post-mortem report as well as in his driving licence where his date of birth was recorded as 3.5.1971, the Commissioner ascertained age of the deceased to be about 40 years, six months i.e. about 4\ years. He also found that the vehicle in question was covered by the insurance at the time of the accident and the deceased had a valid and effective driving licence when he was performing his duties as driver on the fateful day i.e. 25.11.2011. 15. The Compensation Commissioner in the circumstances, computed compensation to the tune of Rs. 6,80,137.50P. according to the formula Rs. 7500 x 181.7 as provided in the Workmen's Compensation Act, 1923, with 12% simple interest till the date of its payment. 16. After hearing counsel for the parties and on perusal of the record, we are of the considered opinion that there is no illegality or infirmity in the award passed by the Compensation Commissioner, in E.C.A. No. 21 of 2012 in favour of the claimants. 17. We are shocked at the manner in which the appellant insurance company has used its investigator to obtain the letter dated 3.11.2011 who had obtained it from Sri Lohit, owner of the vehicle involved in the accident by misleading and threatening him. This is not only deplorable but also raises question on working system of Insurance Company in depriving the rightful dues of poor claimants who have already been deprived of love and affection and umbrella of protection of their bread earner. It appears to us that the vehicle owner had earlier not appeared before the Commissioner as he was under the threat and influence exerted by the investigator on behalf of the insurance company that he will be in hot waters by income tax department and other Govt. departments if admitted employment of Liyakat Ahmad (since deceased) as his driver in the claim application before the Commissioner. 18. The findings recorded by the Compensation Commissioner in the impugned award are cogent and in accordance with law, therefore, they do not require any interference by this Court. The appeal has no substance and is accordingly dismissed.