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2017 DIGILAW 1852 (RAJ)

National Insurance Co. Ltd. v. Prem

2017-08-17

DINESH CHANDRA SOMANI

body2017
JUDGMENT : Dinesh Chandra Somani, J. The instant appeal under section 30 of the Employees Compensation Act, 1923 (hereinafter referred to as the 'Act') has been filed by the non-applicant/Insurance Company against the award dated 28.9.2015 passed by the Employees Compensation Commissioner, Tonk (hereinafter referred to as the 'Commissioner') in Claim Case No.ECA/F/93/2009 tilted as Prem & Ors v. Pyarelal Yadav & Anr., whereby the learned Commissioner has allowed the claim petition and awarded Rs. 3,63,965/- as compensation, Rs. 2,69,334/- as interest from the date of accident till the date of award and further interest @ 12% per annum till realisation. 2. Skeletal material facts necessary for disposal of this appeal are that the claimant/respondents have filed the claim petition before the learned Commissioner stating inter-alia that the deceased-Ramkesh Meena was employed as a labour on the Truck No.HR-61-0505 owned by non-claimant/respondent No. 5. When the deceased was unloading the truck and while coming down from the truck, the driver of the truck without looking behind took the truck back, due to which the truck hit and run over the deceased and consequently he died. It was also averred that at the time of the accident, the deceased was 25 years old and he was getting salary of Rs. 5000/- per month. 3. The non-claimant/respondent No. 5, who is owner of the vehicle in question, filed reply to the claim petition denying the material averments of the claim petition for want of knowledge and pleaded that the vehicle in question was insured with the non-applicant No. 2-Insurance Company, as such the Insurance Company is liable to indemnify the liability, if any, and prayed to dismiss the claim petition against him. 4. The non-applicant No. 2/appellant filed reply to the claim petition denying the employment of the deceased and stated that the deceased did not die during course of the employment and arising out of the employment. The non-applicant also denied the age and salary of the deceased and raised objection regarding breach of policy condition. It was further averred that the non-claimant No. 1 did not serve notice upon non-applicant No. 2 required under Section 10 of the Act and prayed to dismiss the claim petition. 5. On basis of the pleadings of the parties, learned Commissioner framed as many as 4 issues. It was further averred that the non-claimant No. 1 did not serve notice upon non-applicant No. 2 required under Section 10 of the Act and prayed to dismiss the claim petition. 5. On basis of the pleadings of the parties, learned Commissioner framed as many as 4 issues. In support of the case, the claimant/respondents filed affidavits of Smt. Prem and Mukesh, who were cross-examined by the non-applicant/appellant. The claimant/respondents also filed and exhibited certain documents. In rebuttal, the non-applicant/appellant examined Shri Rakesh Meena and exhibited documents. Non-claimant/respondent No. 5 did not produce any evidence. 6. After hearing learned counsel for the parties, learned Commissioner passed the impugned award. Being dissatisfied with the impugned award, the non-applicant/appellant Insurance Company has preferred this appeal. 7. Learned counsel for the appellant-Insurance Company submits that at the time of alleged accident, the vehicle involved in the accident was used in breach of specified condition of the policy relating to valid permit, therefore, the appellant-Insurance Company cannot be fastened with any liability to pay the compensation to the claimants. Learned counsel also submits that to prove the breach of policy condition regarding permit, Insurance Company has examined witness Rakesh Meena, who proved the condition of permit in the policy. The appellant sent notice to respondent owner of the vehicle to produce the valid permit but he failed to do so. Therefore, if it is proved that the vehicle was used in breach of specified condition of the policy, as such the appellant is not liable to indemnify the statutory liability of the employer and prayed to allow the appeal and to exonerate the appellant from the liability to pay the compensation to the claimant/respondents. 8. Per contra, learned counsel for the claimant/respondents opposed the arguments of learned counsel for the appellant and supported the impugned judgment and award. Learned counsel also submits that the appellant has not taken any specific plea in the written statement about the breach of specified condition of the policy with regard to permit of the vehicle, as such the appellant cannot be permitted to travel beyond it's pleadings. In support of his submissions, learned counsel placed reliance on the judgment of Hon'ble Apex Court in the case of Union of India v. Ibrahim Uddin & Anr. reported in (2012) 8 SCC 148 . 9. In support of his submissions, learned counsel placed reliance on the judgment of Hon'ble Apex Court in the case of Union of India v. Ibrahim Uddin & Anr. reported in (2012) 8 SCC 148 . 9. I have given my anxious consideration to the rival submissions of learned counsel for the parties and also gone through the material made available for my perusal as well as the relevant legal provisions. 10. According to written statement filed by the appellant, the non-claimant/respondent No. 5 did not inform the Insurance Company about the alleged accident, which is required under the terms and conditions of the policy, as such it is a case of breach of policy condition, therefore, the Insurance Company cannot be fastened with the liability in absence of the information of the alleged accident. The appellant/Insurance Company has not pleaded specifically that the vehicle was used without valid permit in breach of conditions of the insurance policy. In the case of Union of India v. Ibrahim Uddin (supra), Hon'ble Apex Court in para No. 77 has held and observed as under : "77. This Court while dealing with an issue in Kalyan Singh Chouhan v. C.P. Joshi, after placing reliance on a very large number of its earlier judgments including Trojan & Co. v. Nagappa Chettiar, Om Prakash Gupta v. Ranbir B. Goyal, Ishwar Dutt v. Collector (LA) and State of Maharashtra v. Hindustan Construction Co. Ltd., held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in the absence of the pleadings in that respect. No party can be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon." 11. In view of the law laid down by Hon'ble Apex Court, the decision of the case cannot be based on the ground outside the pleadings of the appellant and the appellant cannot be permitted to travel beyond it's pleading, as such the evidence produced by the appellant with regard to permit of the vehicle, cannot be taken into consideration. In view of the law laid down by Hon'ble Apex Court, the decision of the case cannot be based on the ground outside the pleadings of the appellant and the appellant cannot be permitted to travel beyond it's pleading, as such the evidence produced by the appellant with regard to permit of the vehicle, cannot be taken into consideration. 12. In my view, looking to the facts and circumstances of the case, no substantial question of law can be said to have arisen in the present case. As discussed above, none of the contentions made on behalf of the appellant can be said to be tenable, therefore, the appeal is liable to be dismissed. 13. Consequently, the appeal being devoid of any merit, is hereby dismissed. In view of the above, the stay application also stands dismissed.