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2013 DIGILAW 265 (JK)

National Insurance Co. Ltd. v. Rajit Kumar

2013-05-01

MUZAFFAR HUSSAIN ATTAR

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1. A Claim Petition came to be filed by the respondent no. 1 before the Commissioner under Workmen's Compensation Act, 1923, (Assistant Labour Commissioner), Jammu, (for short "Authority") on 16th January, 2004, wherein he claimed that during the course of his employment with respondent no. 2 as driver, he carried passengers from Akhnoor to Bhar Devta and Takal Battal. It was also claimed by respondent no. 1 that near Ram Nagar Morh National High Way at about 10: 00 a.m., a cow came in front of the vehicle which was driven by the respondent no. 1 and in order to save the cow which had suddenly come in front of the vehicle, he had to immediately apply brakes and resultantly the vehicle skidded off the road and fell into a gorge. It was also claimed that he received injuries all over his body which included fracture of his right hand. He specifically claimed that the injuries, which he had sustained, arose out of and in the course of his employment with respondent no. 2. It was also claimed that the vehicle was insured with appellant herein at the time of accident. He claimed compensation for having suffered permanent disability and requested that a direction be issued for payment of compensation in the amount of Rs. 3.00 lacs with 18% interest. It was also claimed that respondent no. 1 was receiving Rs. 4,000/- per month as wages. 2. On notice issued, Appellant-Insurance Company filed objections, in which, it was specifically pleaded that it was not respondent-claimant, but one Harjit Kumar (alias Raju), who was driving the vehicle which met with an accident. It was also pleaded that the claim petition has not been drafted in accordance with Workmen's Compensation Act. Further plea was taken by the appellant-Insurance Company in the objections that in absence of documentary evidence of claimant/respondent no. 1 being under the employment of respondent no. 2, the claim petition was not maintainable. It was also pleaded that claim petition being time barred merits dismissal. Further plea was taken that at the time of accident, the vehicle was not insured with the Insurance Company. One more plea was taken that in view of breach of terms and conditions of the insurance policy, the appellant-Insurance Company was not liable to indemnify the insured in the event the direction was issued by the Authority for payment of compensation. 3. One more plea was taken that in view of breach of terms and conditions of the insurance policy, the appellant-Insurance Company was not liable to indemnify the insured in the event the direction was issued by the Authority for payment of compensation. 3. On the pleadings of the parties, the Tribunal framed three issues, which are taken note of:- "1. .Whether the petitioner Rajit Kumar sustained injuries during and in the course of his employment with respondent no. 2. 2. What were wages and age of the petitioner at the time of accident (OPP). 3. Relief" 3. After the conclusion of the enquiry, the Authority issued direction under Section 4 (i) c read with Schedule IV of the Workmen's Compensation Act, 1923, to respondent no. 2 for payment of amount of Rs. 1,34,400/- as compensation to the respondent no. 1/claimant. It was further directed that the amount of compensation be paid to the respondent/claimant by the appellant-Insurance Company. The appellant-Insurance Company was directed to deposit the compensation amount within 30 days from the date of announcement of the award. The award was announced on 11th May, 2009. 4. Mr. Baldev Singh, learned counsel for the appellant, vehemently argued that the award is bad in law, inasmuch as, the owner of the vehicle was not authorized to ply the vehicle on the route, where it met with an accident. Learned counsel, accordingly, submitted that this is only issue, involved in this Appeal, which would require to be adjudicated upon. 5. The appellant-Insurance Company has not specifically pleaded in its objections before the Authority that the driver of the owner was not permitted to ply the vehicle on the route, where it met with an accident. This plea is first time taken in the memo of appeal. 6. Additional pleas can be taken before the Authority or the court of original jurisdiction by way of amendment of pleadings. Question of fact cannot be raised for the first time before the appellate court. It is on the basis of pleadings of the parties that the issues were framed and evidence was led. When a fact is not specifically pleaded, even if, evidence is led in respect of it, that evidence cannot be considered and looked into. The parties have to plead the facts and prove them by leading evidence. It is on the basis of pleadings of the parties that the issues were framed and evidence was led. When a fact is not specifically pleaded, even if, evidence is led in respect of it, that evidence cannot be considered and looked into. The parties have to plead the facts and prove them by leading evidence. If the plea is permitted to be taken for the first time at appellate stage, it will certainly affect valuable right of the other side, inasmuch as, the other side will be prevented from controverting the same and from leading evidence in rebuttal. The principles of natural justice will be violated. In these facts and circumstances of this case, no substantial question of law is involved in this appeal. 7. The judgments referred to by the learned counsel for the appellant reported in 2012 (4) JKJ 388 (HC) and 2004 ACJ 2094 proceed on their own facts. The facts of this case are not similar to the facts of the aforementioned cases. This case is covered by the decision of this Court in case titled Oriental Insurance Co. Ltd. v. Sunita Devi and Ors. reported in 2011 (3) JKJ 359 (HC). The appeal in terms of Section 30 of the Act of 1923 can be admitted only when substantial question of law is involved. Since no substantial question of law is involved in this appeal, it merits dismissal. 8. The appeal along with connected CMA(s) is dismissed in limini.