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2015 DIGILAW 1616 (MAD)

Branch Manager, The United India Insurance Company Ltd. , Theni v. Minor V. Veeraselvi

2015-03-25

D.HARIPARANTHAMAN

body2015
Judgment :- 1. The appellant is the Insurance Company. The first respondent is the minor represented by her maternal aunt P.Pounthayee, who filed W.C.No.219 of 2003 on the file of the Commissioner for Workmen's Compensation, Dindigul, claiming compensation for the death of her brother. The brother of the claimant died in a road accident while he was driving the lorry owned by the second respondent herein. 2. The lorry of the second respondent is insured with the appellant and the same is not in dispute. The third respondent is the father of the first respondent-claimant. The father of the first respondent abandoned his son (deceased) and also the claimant (daughter). The claimant was solely dependent on the deceased, since she was abandoned by her father, who got married with another lady and living separately. 3. The appellant resisted the claim on the ground that the deceased was not the driver of the lorry at the time of accident. The appellant relied on the Motor Claim Form sent by the second respondent, who was the owner of the lorry, stating that one Rajasimman was the driver at the relevant point of time. 4. The second respondent herein / owner of the lorry remained ex-parte and he did not file any counter statement. Before the Commissioner, the claimant got examined herself as witness and Exs.P1 to P7 were marked. On behalf of the appellant Insurance Company, one official was examined. The Motor Claim Form said to have been sent by the second respondent was marked as Ex.R1. After hearing both the sides, the Commissioner passed the impugned order dated 04.02.2005 directing the appellant Insurance Company to pay a compensation of Rs.3,62,065/- to the claimant. The Commissioner recorded a factual finding that the deceased was the driver at the time of accident. He relied on the evidence of P.W.1 and also Ex.P1- First Information Report. 5. This Civil Miscellaneous Appeal is against the aforesaid order questioning the liability, raising the following substantial questions of law: (a) Whether the learned Commissioner was erred in holding that the deceased Selvam @ Vimal was an employee of the second respondent? (b) Whether the learned Commissioner has failed to consider the Motor Claim Form marked as Ex.R1? (c) Whether the learned Commissioner has failed to hold that the deceased was not a workman employed by the second respondent? (b) Whether the learned Commissioner has failed to consider the Motor Claim Form marked as Ex.R1? (c) Whether the learned Commissioner has failed to hold that the deceased was not a workman employed by the second respondent? (d) Whether the learned Commissioner has properly decided about the employer-employee relationship between the second respondent and the deceased Selvam @ Vimal? 6. At the time of admission, the learned counsel for the appellant has submitted that the substantial question of law involved in this case is that as per the insurance policy, the Insurance Company is liable to pay compensation only for the driver as well as the third party, but in this case, a person who had driven the vehicle had no valid driving license to drive the vehicle and he is not an employee of the second respondent and there was no employer and employee relationship between the second respondent and the deceased Selvam @ Vimal. 7. The learned counsel for the appellant has placed reliance upon the Motor Claim Form said to have been sent by the second respondent herein. According to him, the same was not considered by the Commissioner and therefore, it is a perverse finding. The learned counsel for the appellant has submitted that the deceased was not working as driver at the time of accident under the second respondent herein. 8. On the other hand, the learned counsel for the claimant has contended that P.W.1 deposed that her brother was employed under the second respondent as driver. Nothing was suggested during the cross-examination. He has taken me through the cross-examination from the original file. Further, he has relied on Ex.P1 – First Information Report wherein it is not stated that Rajasimman was the driver at the time of accident. On the other hand, it has been stated that the brother of the claimant was the driver. Therefore, placing reliance on Ex.P1 as well as the evidence of P.W.1, the Commissioner has recorded a factual finding that no substantial questions of law have arisen. 9. I have heard the learned counsel appearing on either side. 10. Ex.R1 is the xerox copy of the Motor Claim Form. The original form is not produced. There is a signature of one P.Ramar. But it is not proved by the Insurance Company that the claim was made by the second respondent. 9. I have heard the learned counsel appearing on either side. 10. Ex.R1 is the xerox copy of the Motor Claim Form. The original form is not produced. There is a signature of one P.Ramar. But it is not proved by the Insurance Company that the claim was made by the second respondent. Further, when the Commissioner for Workmen's Compensation has recorded a factual finding based on the evidence of P.W.1 and Ex.P1 – First Information Report, I am of the view that the same cannot be termed as perverse. I have gone through the evidence of P.W.1. P.W.1 has stated that the deceased was the driver under the second respondent. During the cross-examination, no suggestion was put to her that he was not a driver. Based on Ex.P1 and the deposition of P.W.1, the Commissioner has rendered a factual finding that the deceased was a workman under the second respondent. In my view, the factual finding recorded by the Commissioner cannot be termed as perverse. The only person examined on the side of the appellant has also submitted that the appellant- Insurance Company did not conduct any independent investigation to ascertain the truth as to whether the deceased was a driver at the time of accident or not. 11. Under these circumstances, I am not inclined to interfere with the order of the Commissioner for Workmen's Compensation, Dindigul. The appeal under Section 30 of the Workmen's Compensation Act is for a very limited purpose. There is no substantial question of law involved, and it is only a factual finding rendered by the Commissioner. As far as the driving license is concerned, the appellant did not take any steps to prove that the deceased did not possess valid driving license, by examining the officials of the Regional Transport Office. 12. In view of all the above reasons, this Civil Miscellaneous Appeal fails and accordingly it is dismissed. No costs. Consequently, the connected miscellaneous petition is closed. 13. At the time of filing the claim petition, the first respondent /claimant was a minor. If the minor has attained majority, she is permitted to withdraw the entire award amount already deposited by the Insurance Company, otherwise, the award amount shall kept in a fixed deposit in any one of the Nationalised banks, initially for a period of three years and thereafter renewed periodically till the minor attains majority. If the minor has attained majority, she is permitted to withdraw the entire award amount already deposited by the Insurance Company, otherwise, the award amount shall kept in a fixed deposit in any one of the Nationalised banks, initially for a period of three years and thereafter renewed periodically till the minor attains majority. The interest accrued shall be withdrawn by her maternal aunt / guardian of the minor, once in three months directly from the bank, which shall be utilised for the benefit and welfare of the minor.