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2014 DIGILAW 35 (HP)

Oriental Insurance Company v. Deepa

2014-01-06

SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, J. (oral) The Oriental Insurance Company (appellant herein) has filed the present appeal under the provisions of Section 30 of the Employees Compensation Act, 1928, as amended up-to-date, assailing the order dated 9.11.2012, passed by learned Civil Judge (Sr. Division), Mandi, H.P., in W.C. Petition No.01/07 (31/2011), titled as Smt. Deepa and another versus Ranjeet Singh and another. 2. The appeal stands admitted on the following substantial questions of law:- “1. Whether the award of the Commissioner suffers from illegality and is unsustainable by wrongly deciding employer-employee relationship which apparently did not exist, especially when the owner of the vehicle has not produced any record of recruitment to prove the employment of the deceased? 2. Whether the Commissioner has erred while non-suiting the appellant on the defence of Driving Licence in a case under Employee Compensation Act. 3 Whether the commissioner erred while ignoring the contract of insurance and based its findings on conjectures and surmises?” 3. Mr. Deepak Bhasin, learned counsel for the appellant fairly states that in view of the findings returned by the Court below, Question No.1 does not arise for consideration. Relationship of employer and employee is thus not under challenge. 4. In so far as Questions No.2 and 3 are concerned, I am of the considered view that the issue is no longer res-integra. The Authority below, in fact, referred to and relied upon decisions rendered by various High Courts of the Country, including this Court. 5. In United India Insurance Company versus Seema Devi and others, 2005 (2) Shim. LC 442, this Court held that:- “In my opinion, the Insurance Company can raise all defences available to it in claims under the W.C. Act. It cannot be argued that the Insurance Company is restricted to raise only those defences available to it under Section 149 of the Motor Vehicles Act. Therefore, it can raise question whether the employee had a license or not. However, the Insurance Company has agreed to indemnify the employer for his liability under the W.C. Act and if the employer is liable then the Insurance Company has to be held liable unless it can show that there has been breach of the policy on behalf of the insured. This view is in consonance with the judgment of the apex Court in National Insurance Company Ltd. v. Swaran Singh and others, 2004 (4) ACJ 1. This view is in consonance with the judgment of the apex Court in National Insurance Company Ltd. v. Swaran Singh and others, 2004 (4) ACJ 1. Though that was a case under the Motor Vehicles Act, the general principle of law laid down is that it is for the insurer to prove that the insured has breached the policy. Taking a cue from Section 3 quoted supra it is my considered view that when an employee dies or suffers permanent total disablement in an accident arising out of and in the course of his employment, then the fact that such employee had obtained employment on the basis of false qualification would not be a defence open to the employer and consequently the Insurance Company. However, in case the employee only suffers injury which does not disable him permanently, then the employer can take up a defence that the deceased has obtained employment on the basis of false qualifications and, therefore, willfully disregarded the law and in such an eventuality the employer and the Insurance Company may not be liable. This is in consonance with the intention of the legislature that when a person dies or suffers permanent disablement then it is not only he who suffers, but his dependants suffer with him. In the case of other injuries the employee alone suffers and, therefore, he has not been given the benefit. The intention appears to be that the dependants of the employee should not be denied compensation. In the present case there is nothing to show that the employer knew that the license in question was fake. Ostensibly on the face of it, the driving licence appears to be valid. When the owner of a vehicle employs a driver he is only expected to see the driving license. He is not expected to go to the registration and licensing authority to verify the genuineness of the license. In the present case also, there is no breach on the part of the owner. No doubt, it is true that in the present case the deceased himself endangered his safety and life by inviting unnecessary calamity by engaging in driving of vehicles when he knew that he did not have a valid driving license. In the present case also, there is no breach on the part of the owner. No doubt, it is true that in the present case the deceased himself endangered his safety and life by inviting unnecessary calamity by engaging in driving of vehicles when he knew that he did not have a valid driving license. In view of the provisions of proviso (b) to Section 3(1) of the Act, when a workman dies or is permanently disabled then even if it is proved that he acted recklessly or endangered his life by illegal means would, in my humble opinion, not be a defence open to the employer and consequently the Insurance Company. In case the employee only receives injuries, this would be a valid defence.” 6. While applying the aforesaid ratio to the instant facts, it be only observed that owner of the vehicle has deposed, which testimony is impeachable and unrebutable, that prior to engagement of the deceased as a driver, licence was got verified by him. Testimony of RW-1 (Shri Ranjit Singh) is evidently clear to this effect. Deceased Vijay Kumar, who was an employee of owner Ranjit Singh, was driving vehicle (No.HP65-0486) at the time of accident, which took place on 20.4.2006. Deceased was drawing salary of Rs.4,000/- per month, which fact stands evidently proved and established on record through the testimony of PW-1 Shri Gowardhan (father of the deceased). Deceased being 21 years of age, in my considered view, Court below rightly awarded compensation of Rs.4,48,000/- alongwith interest, payable w.e.f. 20.5.2006, one month after the date of accident. As such, there is neither any illegality nor any infirmity/perversity in the impugned award dated 9.11.2012, passed by Civil Judge (Sr. Division), Mandi, District Mandi, H.P., in W.C. Petition No.01/07 (31/2011), titled as Smt. Deepa and another versus Ranjeet Singh and another. 7. Mr. Deepak Bhasin, learned counsel for the appellant has referred to and relied upon decisions rendered by the Apex Court in National Insurance Co. Ltd. versus Mastan and Another, (2006) 2 SCC 641 and Gottumukkala Appala Narasimha Raju & Ors. v. National Insurance Company Ltd. AIR 2007 SC 2907 to support his contention that it would be open for the insurer to take all defences available under the provisions of Motor Vehicles Act, 1988, in the proceedings under the Workmen’s Compensation Act, 1923. Ltd. versus Mastan and Another, (2006) 2 SCC 641 and Gottumukkala Appala Narasimha Raju & Ors. v. National Insurance Company Ltd. AIR 2007 SC 2907 to support his contention that it would be open for the insurer to take all defences available under the provisions of Motor Vehicles Act, 1988, in the proceedings under the Workmen’s Compensation Act, 1923. Noticeably, the principle of law stands considered by this Court in Seema Devi (supra). 8. Questions of law are answered accordingly. 9. For all the aforesaid reasons, present appeal is dismissed, so also pending application(s), if any. CMP No.20919/2013 Allowed. Entire amount, falling to the share of the applicants, alongwith up-to-date interest be released in their favour. The amount be remitted directly into the bank accounts as per particulars mentioned in Para-4 of the application (photocopies of the passbooks attached). Application stands disposed of.