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2017 DIGILAW 1057 (ALL)

United India Insurance Co. Ltd. v. Sunder Lal

2017-04-19

ASHOK KUMAR

body2017
ORDER : Ashok Kumar, J. Heard Sri Vibhuti Narain, Advocate holding the brief of Sri Krishna Yogeshwar learned counsel for the appellant and Sri Nigmendra Shukla learned counsel appearing for the claimant, the opposite party No. 1. 2. No one has put in appearance on behalf of the opposite party No. 2 (Avtaar Singh), owner of the vehicle. 3. This appeal has been filed under Section 30 of the Workmen's Compensation Act, 1923 against the order dated 17.03.2006, passed by the Commissioner in Workmen's Compensation Application No. 163 of 1998, whereby the commissioner has awarded Rs. 54052/- along with 12% interest per annum from the date of the accident i.e. from 11.05.1998, till the date of payment to the claimant. 4. The brief fact of the case are that the present appeal has been filed by the United India Insurance Company, the appellant with a prayer that a judgment and order dated 17.03.2006 passed by Workmen's Compensation Commissioner, Meerut be set aside and the appeal filed by the appellant be allowed. 5. The contention of the learned counsel for the appellant company is that the Commissioner has committed an error while deciding the appeal of the claimants-respondents without framing the issues, in favour of the claimants-respondents. Further, the appellant has contended that the factum of the accident by the vehicle was not proved and the driver of the vehicle was neither produced as witness in the Court nor driving licence was produced either by the claimant or by the owner of the vehicle in question. It is contended that there is no finding given by the Commissioner on the validity of the driving licence of the driver of vehicle. The owner of the vehicle has not filed the permit and fitness certificate of the vehicle. In absence of valid permit, it cannot be proved as to whether the vehicle was being plied in accordance with the terms and conditions of the policy. It has also been submitted that the Commissioner has erred in accepting the claim, which was legally not maintainable due to non-impleadment of owner and insurer of another offending vehicle. 6. In absence of valid permit, it cannot be proved as to whether the vehicle was being plied in accordance with the terms and conditions of the policy. It has also been submitted that the Commissioner has erred in accepting the claim, which was legally not maintainable due to non-impleadment of owner and insurer of another offending vehicle. 6. The insurance company, the appellant has also submitted that from the perusal of the record it is clear that when previously the Commissioner proceeded ex-parte against the owner of the vehicle then vide order dated 01.10.2002, entire liability has been fixed on the owners and thereafter without assigning any reason or basis arbitrarily it has reversed, fixing the liability of satisfying compensation in the hands of the appellant insurance company. 7. In this appeal following substantial question are framed by the appellant-company stating that the same be decided by this Court:- "A. Whether the learned Commissioner was justified in imposing the liability on the Insurance Company in absence of valid and effective driving licence only on the assumption that the driver of the vehicle in question was having valid license on the date of accident even when no driving license was ever produced? B. Whether the learned Commissioner was justified in deciding the appeal in favour of the claimants-respondents without framing the issues and without discussing the point in issue? C. Whether the learned Commissioner was justified in recording his findings on the assumption that the driver of the vehicle in question was having valid license even when neither any copy of driving license was ever produced nor the driver was produced before the Court for witness? D. Whether the learned Commissioner was justified in reversing his earlier decision dated 01.10.2002, fixing entire liability on respondent No. 2, then without any basis or reason, liability of satisfying compensation was shifted on the appellant insurance company?" 8. The appeal is heard on 19.04.2017 learned counsel for the appellant Sri Vibhuti Narain, holding the brief of Sri Krishna Yogeshwar, counsel for the appellant and Sri Nigmendra Shukla, counsel appearing for the claimant are heard. No one appeared on behalf of the opposite party. The opposite party namely, Avtaar Singh (the owner of the vehicle). The appeal is heard on 19.04.2017 learned counsel for the appellant Sri Vibhuti Narain, holding the brief of Sri Krishna Yogeshwar, counsel for the appellant and Sri Nigmendra Shukla, counsel appearing for the claimant are heard. No one appeared on behalf of the opposite party. The opposite party namely, Avtaar Singh (the owner of the vehicle). The claimant Sunder Lal Singh has stated in its claim petition that he was the conductor and was performing his duties as a conductor while the vehicle No. U.P. 15 B-8213 plied for the transportation of the passenger. On 11.05.1998 when the aforesaid vehicle was plied between Modi Nagar to Meerut and when the said vehicle reached near Rithani the accident took place due to over take by the driver of the vehicle at the side where the conductor's seat situates. At the time of accident the vehicle was driven by one Ashok, due to accident the left hand and ankle has broken and the fingers of the left hand got serious injuries and it is stated that at the time of the said accident, age of the claimant was 19 year and he was earning Rs. 2500/- per month on account of his services rendered being the conductor. 9. The claimant has stated that the said vehicle was insured for the period 20.11.1997 to 19.11.1998 and therefore the appellant/insurance company is liable to make the payment so claim to the tune of Rs. 3,00000/- plus 10% interest. Before the Commissioner the submissions/reply are submitted by the opposite party Nos. 1 and 2 in writing and the opposite party No. 1 has accepted the facts narrated by the claimant whereas the opposite party No. 2, the insurance company has rejected the claim on the basis of the facts so stated by the claimant. The insurance company has placed the original insurance policy of the vehicle in question which clarifies that the same was insured in between 20.11.1997 to 19.11.1998 and the same was registered/insured in the name of the opposite party No. 1 Avtaar Singh. The insurance company has placed the original insurance policy of the vehicle in question which clarifies that the same was insured in between 20.11.1997 to 19.11.1998 and the same was registered/insured in the name of the opposite party No. 1 Avtaar Singh. The Commissioner has considered the submissions of respective parties and has permitted the opposite parties to cross-examine the witnesses and during the course of the statement this fact has been brought to the notice of the Commissioner that the claimant was the employee of the owner of the vehicle and for the services rendered by the claimant, the owner of the vehicle was paying sum of Rs. 2000/- per month. However it has been stated that by the owner of the vehicle that there is no record nor any document available with him by which he can prove his statement to be supported by the documentary evidence. It has been admitted by the owner of the vehicle that the vehicle was duly insured but he has not informed the insurance company about the incident which took place on 11.05.1998. It has also admitted by the owner of the vehicle that he has not given any compensation to the claimant on account of the accident which took place and further he has stated that the delay in making the payment is not due to his mistake as such is on account of the insurer. After taking into consideration the respective submissions and the evidence which has been adduced before him the Commissioner has passed an order 17.03.2006 by which he has fixed the liability of payment in the hands of the insurance company. 10. It may be pertinent to mention hear that earlier the Commissioner has passed an order dated 01.10.2002 by which he has fixed the liability of payment to be made to the claimant against the owner of the vehicle namely in the hands of Avtaar Singh. The Commissioner vide order dated 01.10.2002 has recorded a finding that the insurance company has discharged its burden by placing the relevant documents related to insurance of the vehicle whereas the owner of the vehicle has neither appeared nor has produced any documents in support of his stand, whereas he has admitted that the payment of Rs. 2000/- per month has paid to the claimant for the services rendered by the claimant being the conductor. 2000/- per month has paid to the claimant for the services rendered by the claimant being the conductor. Further the owner of the vehicle has failed to co-operate in the proceedings even after the service/summons/notice, hence is liable for the payment to be paid to the claimant. 11. An application has been moved on 10.11.2004 by the owner of the vehicle before the Commissioner being the restoration application in which has been allowed by the Commissioner vide order dated 19.10.2005 by which the order dated 01.10.2002 has been recalled. The Workmen's Compensation Commissioner, Meerut, without framing issues and without considering the evidence adduced by the insurance company has proceeded in the matter and has fixed the liability of satisfying the award of compensation in the hands of the appellant-insurance company. 12. After considering the submissions of the counsel for the parties I found that the owner of the vehicle has failed to discharge his burden to prove that the driver of the vehicle had the valid driving license at the time of accident when admittedly no such evidence has been adduced by the owner with regard to availability of valid license in favour of the driver Ashok. Further it is clear from the order of the Commissioner as well as from the material available on record that the owner of the vehicle abstain himself to participate in the proceedings and therefore without valid driving licence the liability of payment of the claim has been illegally fixed in the hands of the insurance company which is patently wrong. It is well settled law when the driving license is not filed or it is not proved that the driver was holding a valid driving licence the liability of payment of the compensation cannot be fasten in the hands of the insurance company. 13. It is well settled law when the driving license is not filed or it is not proved that the driver was holding a valid driving licence the liability of payment of the compensation cannot be fasten in the hands of the insurance company. 13. In the present case it is admitted case that at no point of time the owner of the vehicle has ever produced the driver or the valid driving license, therefore it clearly demonstrate that it may be just because the deliberate attempt by the owner of the vehicle to avoid the participation in the proceedings and to get some undue advantage and once admittedly there is no finding recorded by the Commissioner that the owner of the vehicle has discharged his burden or has proved that the driver had a valid driving license, the liability for payment of compensation cannot be shifted in the hands of the insurance company. The proposition on this issue is well settled that the burden of prove that the driver of a vehicle had a valid and effective driving license would be entirely upon the owner of the vehicle. The said burden can never be shifted to the insurance company, as it can not be asked to discharge a negative burden with regard to effect which is especially within the knowledge of the driver who is an employee of the owner of the vehicle. 14. In the result, the appeal is allowed and the award made by the Workmen's Compensation Commissioner, Meerut is hereby set aside and it is directed that the impugned compensation should be paid by the owner of the vehicle, Avtaar Singh, Son of Sri Asnaag R/o-54, Patel Nagar, Meerut. The amount if any paid/deposited by the appellant insurance company has to be paid by the owner of the vehicle and in case if the same is already paid to the claimant or deposited before the Court by the Insurance Company, the appellant is entitled to recover the same from the owner of the vehicle. In alternative it is directed that the said payment of the awarded amount is recoverable from the owner of the vehicle and the appellant insurance company is entitled to recover the entire amount from the owner of the vehicle, by taking proceedings in accordance with Section 174 of the Motor Vehicles Act or by any other mode permissible in law. 15. 15. Accordingly, this appeal is allowed.