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2016 DIGILAW 2229 (GUJ)

National Insurance Co. v. Manjuben

2016-12-20

A.G.URAIZEE

body2016
JUDGMENT: Mr. A.G. Uraizee, J. The appellant-Insurance Company has challenged the judgment and order dated 13.9.2011 passed by the Commissioner under the Workmen's Compensation Act (for short the “ACT”) in Workmen's Compensation application No. 12/2000, whereby the appellant-Insurance Company is directed to pay a sum of Rs. 1,27,080/- with 10% penalty and 9% interest i.e. on Rs. 12,708/- on the awarded compensation to the respondents with a liberty to recover the same from respondent no. 3 herein. 2. Heard Mr. Dakshesh Mehta, learned advocate for the appellant. There is no appearance on behalf of respondents despite service of notice of admission of the appeal Mr. Mehta, submits that the Commissioner ought not to have directed the appellant -Insurance Company to deposit the awarded compensation in the first instance and to recover it from respondent no. 3 herein as deceased Babubhai Mahijibhai Parmar was not holding any valid license to drive the tractor. He has relied upon the cross-examination of Pravinbhai Parmar who is the son of the deceased who has stated in his cross-examination that his father did not have any driving licence as he was illiterate. He, therefore, submits that the Commissioner ought not to have fastened the liability of payment of compensation with interest on the appellant-Insurance Company. He, therefore, urges that the appeal may be allowed and the appellant be exonerated from its liability of payment of compensation with interest to respondents no. 1 and 2 herein. 3. At the threshold it needs to be noted that the appellant has in-compliance of the order dated 8.12.2011 passed in Civil Application No. 12128/11 deposited the entire amount subject to the final out come of this appeal which is to be recovered from the employers i.e. respondent no. 3 herein if ultimately the appellant succeeds in the appeal and the respondents no.1 and 2 herein are permitted to withdraw the same. Thus, it is vividly clear that the appellant-Insurance Company had deposited the entire awarded compensation with the lower authority which the respondents no. 1 and 2 herein original claimants have already withdrawn. The sole ground which is raised by the learned advocate for the appellant for exonerating the appellant-Insurance Company from its liability is that the deceased was not holding driving licence and therefore the liability of payment of compensation could not have been fastened on the appellant. 1 and 2 herein original claimants have already withdrawn. The sole ground which is raised by the learned advocate for the appellant for exonerating the appellant-Insurance Company from its liability is that the deceased was not holding driving licence and therefore the liability of payment of compensation could not have been fastened on the appellant. The only piece of the evidence available to the appellants to record the conclusion that the deceased was not holding the driving license is the admission on behalf of respondent no. 2 herein in his cross-examination that his father was not holding driving license as he was uneducated. In my opinion the so called admission of respondent no. 2 herein in his cross-examination cannot be read in isolation. For appreciating the fact that the deceased was holding valid license or not, we have to read the evidence as a whole. It cannot be read in truncated manner. In the cross-examination itself respondent no. 2 herein states that he was not aware whether his father was holding any driving license or not and therefore, his admission that his father was not holding driving license as he was uneducated cannot be a base to record a conclusion that the deceased was not holding a driving license. It is manifestly clear from the evidence of respondent no. 2 herein that the evidence as regards whether the deceased was holding driving license or not is unclear and hazy. It is pertinent to note that the Commissioner has raised issued no. 5 to the effect whether the present appellant proves that the deceased was not holding a driving license. This issue was canvassed on the basis of defence raised by the appellant in his witness statement. The appellant, therefore, was obligated to have led some cogent evidence to establish on record that the deceased was not holding a valid license. Under the circumstances, for want of sufficient and reliable evidence it is very difficult to record the finding that the deceased was not holding a driving license to drive a tractor. In any case, this Court has also vide order dated 8.12.2011 as also the Commissioner in impugned order taken care of the interest of the appellant by reserving liberty as also the order to recover the compensation which the appellant has paid to the respondents no.1 and 2 herein from respondent no. 3 employer. 4. In any case, this Court has also vide order dated 8.12.2011 as also the Commissioner in impugned order taken care of the interest of the appellant by reserving liberty as also the order to recover the compensation which the appellant has paid to the respondents no.1 and 2 herein from respondent no. 3 employer. 4. Since the appellant-Insurance Company has already deposited the awarded compensation which respondents nos.1 and 2 have already withdrawn, and liberty is reserved in favour of the appellant to recover the compensation paid by them by respondent no. 3 herein. I am of the view that the order of the Commissioner does not warrant interference in this appeal. 5. For the foregoing reasons, the appeal fails and is hereby dismissed. The appellant-Insurance company shall be at liberty to recover the compensation which they have paid to respondent no.1 and 2 herein from respondent no. 3 herein by instituting appropriate proceedings interms of the liberty reserved in their favour by the impugned judgment and award. 6. In the facts and circumstances of the case the parties are left to bear their own costs. R & P shall be remitted back to the trial court.