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2014 DIGILAW 1681 (RAJ)

National Insurance Company Ltd. v. Kamla Devi

2014-10-15

ALOK SHARMA

body2014
JUDGMENT 1. - This misc. appeal under Section 30 of the Employees' Compensation Act, 1923 (hereinafter Rs. the 1923 Act') has been filed against the judgment dated 24-8-2009 passed by the Employees' Compensation Commissioner, District Jaipur-I, Jaipur (hereinafter Rs. the Commissioner'), partly allowing the claim petition filed by the wife, children and parents of the deceased Banna Lal (hereinafter `the claimants') and finding them entitled to compensation of Rs. 3,96,620/- along with interest at the rate of 12% following one month from the date of accident till the date of payment. 2. The facts of the case are that claimants filed a petition under Section 22 of the 1923 Act before the Commissioner stating that the deceased Banna Lal was employed as a Driver on Tractor No.R J-14-RA-3341 owned by the respondent Ram Lal and insured with the appellant insurance company. On 2-3-2008, Banna Lal drove the tractor to an agricultural field in village Pingun to deliver a crane at a construction site of a well. After having reached the site and having alighted from the tractor, he sought to unload the crane from the tractor, which however fell on his head resulting in severe head injuries to him, wherefrom he died on 2-3- 2008 itself. It was stated that FIR No.32/2008 was also lodged at Police Station Narena detailing the aforesaid facts. It was prayed that in the circumstances, as Banna Lal was drawing a salary of Rs. 6,500/- per month at the relevant time as driver on the Tractor No.RJ-14-RA-3341 insured with the appellant insurance company and was 35 years of age, compensation of Rs. 8 lacs along wi th interest and penalty be awarded. 3. On service of notice of the claim petition, the owner of the Tractor No.RJ-14-RA-3341 remained ex-parte, and proceedings were so taken against him on 2-9-2008. The insurance company filed its reply of denial to the claim petition. It was contended that the insurer had not been informed by the insured of the accident in breach of policy conditions. It was also alleged that the deceased Banna Lal was not employed with the owner of the insured Tractor No.RJ-14-RA-3341, and in any event there was a breach of conditions of the policy as Banna Lal was not holding a valid and effective driving licence at the time relevant to ply a tractor. It was also alleged that the deceased Banna Lal was not employed with the owner of the insured Tractor No.RJ-14-RA-3341, and in any event there was a breach of conditions of the policy as Banna Lal was not holding a valid and effective driving licence at the time relevant to ply a tractor. It was further pleaded that Banna Lal had not sustained injuries in the manner alleged, but in an accident with another tractor. In the circumstances, it was prayed that claim petition be dismissed, at least qua the insurance company. 4. The Commissioner on the basis of pleadings of the parties framed five issues i.e. (i) Whether Banna Lal was employed as a Driver on the insured tractor; (ii) Whether the deceased died from the injuries suffered in the course of employment; (iii) whether the insurance company was entitled to be absolved of its liability to pay compensation for the reasons of its various defence (primarily of Banna Lal not having a valid and effective driving licence); (iv) whether the claimants were entitled to the claimed compensation, and if so, in what proportion; (v) Relief. 5. On consideration of the evidence produced, with the claimant Kamla Devi appearing as a witness before the Commissioner and defence evidence of the insurance company, the Commissioner found that the deceased Banna Lal was indeed employed as a Driver on the insured tractor and assessed his salary as Rs. 4000/- per month. It was held that Banna Lal sustained head injuries on 2-3-2008 while unloading the crane from the trolly attached to the tractor of which he died the same day. The injuries suffered arose out of and in the course of employment. Thus the claimants were entitled to a compensation of Rs. 3,96,620/- by applying the statutory formula based on the proved age and salary of the deceased along with interest at the rate of 12% per annum following thirty days of the accident i.e. 2-3-2008 till the date of payment. 6. Hence this miscellaneous appeal under Section 30 of the 1923 Act by the appellant insurance company. 7. The main contention of the learned counsel for the appellant insurance company Mr. V.K. Mathur is that there was no evidence of any probative worth before the Commissioner to hold that the deceased Banna Lal was employed as a driver on the insured Tractor No.RJ-14-RA-3341. 7. The main contention of the learned counsel for the appellant insurance company Mr. V.K. Mathur is that there was no evidence of any probative worth before the Commissioner to hold that the deceased Banna Lal was employed as a driver on the insured Tractor No.RJ-14-RA-3341. No documentary evidence was filed by the claimants in this regard, and the Commissioner ought not to have relied upon the mere oral testimony of Kamla Devi, wife of the deceased Banna Lal, who was a interested witness without any corroboration. I find no substance in the argument of the learned counsel for the appellant for the reason that in rural areas of the country, or elsewhere, no owner of a tractor in the informal sector (as the owner of insured tractor was operating) ever issues a letter of appointment in writing to a driver engaged by him. In the instant case the unshaken testimony of Kamla Devi before the Commissioner, as also the facts detailed in the FIR No.32/2008, which was lodged within two and half hour of the accident and was duly exhibited and proved, was sufficient evidence for the Commissioner to come to a conclusion that the deceased Banna Lal was employed as a Driver on the insured Tractor No.RJ-14-RA-3341. It is well settled that unless conclusions of the Commissioner on questions of facts are perverse to the evidence on record, they do not warrant interference by this court as an appellate forum, more particularly within the well-defined jurisdiction of this court under Section 30 of the 1923 Act limiting the exercise of appellate powers only on a substantial question of law. The argument raised by the counsel for the appellant is therefore rejected. 8. Mr. Mathur, the learned counsel for the appellant insurance company then submitted that in any event, the insurance company was not liable to pay the compensation as there was breach of the policy condition by the insured of the tractor, inasmuch as the deceased Banna Lal driving the tractor at time of the accident did not have a valid and effective driving licence. He submitted that the burden on the insurance company to bring the evidence on record in support of its defence would only be found if the claimants had asserted in the discharge of their initial burden of proof that Banna Lal was holding a valid and effective driving licence issued from a specific Regional Transport Office. No such assertion of the deceased Banna Lal having a valid and effective driving licence was made by the claimants. An essential aspect for affixing liability for compensation on the insurance company thus remained unfulfilled and in the circumstances, the Commissioner ought not to have visited the appellant insurance company with any liability for payment of compensation to the claimants. 9. Mr. Sandeep Mathur, learned counsel for the claimants controverted the submissions aforesaid and stated that it was for the insurance company to lead evidence in support of its defence that Banna Lal did not have a valid and effective driving licence at the time of accident. This was not done and consequently learned Commissioner was well within his jurisdiction to find that no condition of policy issued by the insurance company to the owner of the Tractor No.RJ-14-RA-3341 had been breached. Counsel submitted that the initial burden to prove its defence was with the insurance company and was not dependent on the claimants' evidence. Counsel has further submitted that in any event the Hon'ble Supreme Court in the case of National Insurance Co. v. Swaran Singh [2004(1) TAC 321 (SC)] has held that for avoidance of liability of the insurance company to pay compensation for purported breach of the policy condition qua a valid and effective driving licence, it has to be established that such a breach was so fundamental so as to have by itself occasioned the accident. Counsel has submitted that in the instant case, it was the case of the claimants and so proved from their evidence that the deceased Banna Lal died when the crane fell on his head while it was being unloaded. The injuries resulted not while driving the insured tractor. 10. Counsel has submitted that in the instant case, it was the case of the claimants and so proved from their evidence that the deceased Banna Lal died when the crane fell on his head while it was being unloaded. The injuries resulted not while driving the insured tractor. 10. It was submitted that the case set up by the insurance company before the Commissioner that cause of accident was not the falling of crane on the head of deceased while it was being unloaded, but injuries sustained in an accident between the insured tractor and another tractor, had been disbelieved and negated by the Commissioner on the evidence before him. The reason being in the fact that the entire defence of the insurance company was based on a report of the Company's own Investigator, purportedly based on the statements of the parents and wife of the deceased Banna Lal. Counsel submitted that the purported statements of the parents and wife of the deceased Banna Lal allegedly made to the investigator of the insurance company, partook the character of mere hear-say evidence and found unworthy of credence by the Commissioner. In my considered opinion, it would suffice to state that the cause of death of deceased Banna Lal from the evidence on record before the Commissioner was clearly attributable to an accident resulting from the falling of a crane while it was being unloaded from the trolly attached with the insured Tractor No.RJ-14-RA-3341. In this view of the matter, in terms of the dictum of the Hon'ble Supreme Court in the case of the National Insurance Company v. Swaran Singh (supra) even not holding of a valid and effective driving licence by the deceased Banna Lal, driver of the insured Tractor No.RJ-14-RA-3341 (assuming it to be proved even though it was not) was of no benefit and could not constitute a valid defence for the appellant insurance company. The deceased Banna Lal from the evidence on record before the Commissioner did not die while driving Tractor No.RJ-14-RA-3341, or when it was otherwise in motion. Banna Lal died after the tractor had been brought to a stand still and in the course of unloading a crane from the trolly attached with the insured tractor. The deceased Banna Lal from the evidence on record before the Commissioner did not die while driving Tractor No.RJ-14-RA-3341, or when it was otherwise in motion. Banna Lal died after the tractor had been brought to a stand still and in the course of unloading a crane from the trolly attached with the insured tractor. In these circumstances the accident leading to the death of deceased Banna Lal was not of the nature where even the alleged absence of a valid and effective driving licence with Banna Lal could entail the appellant insurance company escaping its liability to compensate the claimants as even the alleged absence of a valid and effective driving licence was not the causation of the accident in issue. 11. Aside of the lack of merit in this appeal for reasons detailed above, this court is also informed of the fact that the full amount of the award passed by the Commissioner was deposited with the Commissioner and then dispersed to the claimants. The claimants belong to the poorer section of the society and it is not unlikely that they must have expanded the amounts in issue disbursed to them in the year 2009 itself, or soon thereafter with little possibility of recovery even in the unlikely event of the appeal being allowed. This is also a relevant additional factor in the appeal filed by the insurance company making it liable to be even otherwise dismissed.In the circumstances, no substantial question of law is made out in the instant appeal against the judgment dated 24-8-2009 passed by the Commissioner. Nothing perverse nor arbitrary can be attributed in the impugned award/ judgment of the Commissioner. Consequently, I find no force in the appeal and the same is dismissed.Appeal dismissed. *******