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2013 DIGILAW 273 (JK)

United Insurance Co. Ltd. v. Seema Devi

2013-05-02

MUZAFFAR HUSSAIN ATTAR

body2013
1. This Appeal under Section 30 of Workmen's Compensation Act, 1923 (for short "Act of 1923") has been filed against the award passed on 29th November, 2008, by the Commissioner Workmen's Compensation Act, (Assistant Labour Commissioner) District Rajouri, J&K (for short `Authority'), whereunder the Appellant-Insurance Company has been directed to deposit amount of Rs. 4, 19,840/- within period of thirty days. It is also provided that incase the award amount is not deposited, interest and penalty in terms of Section 4A of the Act of 1923, shall also be recovered from the Appellant-Insurance Company. 2. Learned counsel for the appellant submitted that the deceased driver of the vehicle was not holding a valid driving license and there was breach of terms and conditions of the insurance policy, inasmuch as, the vehicle, at the time of accident, was having on board passengers beyond prescribed limit. Learned counsel also submitted that Authority could not issue direction for recovery of award amount from the owner. 3. In order to appreciate the contentions raised, facts of the case are briefly summarized; 4. A Claim Petition was filed by the widow of Mohinder Kumar, mother of Mohinder Kumar and his son, claiming therein that Mohinder Kumar, a driver by profession, who was in the employment of respondent no. 4 met with an accident and died in the course of his employment. It was also claimed that Mohinder Kumar was employed by the owner of the vehicle (respondent no. 4 herein) to drive the vehicle Mini Bus No. JK02K-2290 and on 2nd February, 2007, the vehicle met with an accident at Dabbar Mohra Bassali Tehsil Nowshera, in consequence whereof, he died. It was also claimed that he was earning Rs. 6000/- per month and his age was 28 years. 5. The Appellant-Insurance Company filed objections to the Claim Petition and resisted the claim of the claimants. 6. The Authority framed four issues, which are taken note of:- "1. Whether the accident arose out of and during the course of employment? O.P.P. 2. Whether the deceased was holding valid driving license at the time of accident? O.P.P. 3. Whether the opposite party is liable to pay compensation? O.P.P. 4. If it is proved then age and wage of the applicant? O.P.P. .." 7. The issue no. Whether the accident arose out of and during the course of employment? O.P.P. 2. Whether the deceased was holding valid driving license at the time of accident? O.P.P. 3. Whether the opposite party is liable to pay compensation? O.P.P. 4. If it is proved then age and wage of the applicant? O.P.P. .." 7. The issue no. 1 was decided in favour of the claimants as it was held that accident arose out of and during the course of employment. Issue no. 2 was decided in favour of the claimants, inasmuch as, finding was recorded that the deceased driver was holding a valid driving license at the time of accident. In respect of issue no. 3, the owner of the vehicle was held responsible to pay compensation, but since the vehicle was insured with the Appellate- Insurance Company, the Appellant-Insurance Company was directed to pay amount with liberty to seek the recovery of same from the owner of the vehicle. The issue no. 4 was also decided in favour of the claimants. 8. Learned counsel for the appellant referred to impugned award to indicate that the Authority has recorded finding that there has been breach of the route permit, as such, the Appellant-Insurance Company is not liable to pay the compensation. 9. The Authority has not framed the issue in respect of breach of terms and conditions of the route permit. The Appellant-Insurance Company has led evidence, but since no issue was framed, the claimants were deprived of their right to lead evidence to controvert the claim of the Appellant-Insurance Company. 10. In order to prove that there was breach of terms and conditions of the route permit, appellant should have filed application before the Authority for framing of the necessary issue, which would have given opportunity to the claimants to lead evidence to disprove the same. The evidence in respect of route permit cannot be considered as the claimants were not given any opportunity to lead evidence to prove that there was no breach of terms and conditions of the route permit. 11. Considering the evidence in absence of framing of issue and affording opportunity to the claimants, would result in violation of principles of natural justice and law of evidence. The contentions of the Appellant-Insurance Company, in these circumstances, cannot be entertained and accepted. 11. Considering the evidence in absence of framing of issue and affording opportunity to the claimants, would result in violation of principles of natural justice and law of evidence. The contentions of the Appellant-Insurance Company, in these circumstances, cannot be entertained and accepted. Since it is not known to the Court as to whether recovery of award amount from the owner of the vehicle was challenged, the finding in respect of right of recovery given to the appellant cannot be made subject of these proceedings, lest the rights of the owner get prejudiced. 12. The Appeal in terms of Section 30 of the Act of 1923 can be admitted to hearing only when substantial question of law is involved. 13. In view of the above stated discussions, no substantial question of law is involved, the Appeal along with connected CMA(s) is dismissed.