IFFCO TOKIO General Insurance Company Limited v. Bhagwan Sahai, Son of late Shri Ram Pal Meena
2018-01-08
INDERJEET SINGH
body2018
DigiLaw.ai
JUDGMENT : 1. The instant appeal has been filed by the appellant against the judgment dated 28.08.2008 passed by the Commissioner Workmen’s Compensation, (hereinafter referred to as Commissioner) Jaipur-II, Jaipur in claim no. WCCF/37/07. 2. Brief facts of the case are that the respondent claimants filed a claim petitioner before the Commissioner, under Section 3 & 22 of Workmen’s Compensation Act 1923 (hereinafter referred to as Act of 1923) for the alleged loss sustained by them on account of death of Narayan son of the claimant respondent no.1 which took place on 11.07.2006. It was further contended that deceased was driver on the tractor No.RJ.14.21-2R-3090 belonged to respondent no.5 & 6. It was further stated that the age of the deceased was 25 years at the time of accident and he was getting Rs.4,000/- as salary per month from the respondent no.5 & 6 and therefore, claimed compensation in sum of Rs.18,61,000/- from the owners and insurance company of the tractor in question. 3. The respondent no.5 & 6 have filed joint reply and stated therein that the deceased was employed on their tractor on the date of accident i.e. 11.07.2006 and stated that they paid the salary Rs. 2500/- per month to the deceased. 4. The appellant-Insurance company also filed it reply and denied the averments and pleaded that the claim petition deserves to be dismissed. It was further stated that the deceased was not employed and said accident did not occur in the course of employment of the insured because owner of the tractor had sold his tractor prior of this accident. The violation of policy conditions were also pleaded. 5. The learned Commissioner partly allowed the claim petition vide judgment dated 28.08.2008 and allowed a sum of Rs.4,36,320/- as compensation along with interest at the rate of 12% in favour of the claimants. 6. Counsel for the appellant submitted that there is no relationship of employee and employer between the deceased and the owner of the vehicle. He further submits that the owner of the tractor filed its reply and stated that deceased was getting Rs.25,00/- as salary per month whereas, the Commissioner has wrongly decided the salary of the deceased as Rs.4,000/- per month.
He further submits that the owner of the tractor filed its reply and stated that deceased was getting Rs.25,00/- as salary per month whereas, the Commissioner has wrongly decided the salary of the deceased as Rs.4,000/- per month. Counsel further submitted that tractor was insured in the name of respondent no.5(Poorna Ram), whereas at the time of accident the said tractor was sold to respondent no.6 (Surendra Rathore) and since deceased was employee of respondent no.6, therefore, the Insurance Company is not liable to pay the compensation. 7. Counsel for the respondent has supported the judgment passed by the learned Commissioner. Counsel further submitted that the Commissioner is the last authority on facts and no substantial question of law is involved in this appeal. 8. Heard counsel for the parties. 9. The first contention raised by the counsel for the appellant regarding no relationship of employee and employer between the deceased and the owner of the vehicle is not acceptable in view of the finding given by the Commissioner on issue no.1 & 2. The Commissioner has given a specific finding on the basis of evidence adduced by the claimants that on the date of accident the deceased was under employment of owner of the vehicle. In my considered opinion, the Commissioner is the last authority on facts as has been held by the Hon’ble Supreme Court in the matter of Golla Rajanna and Ors. Vs. The Divisional Manager and Ors., reported in 2017 (1) SCC 45 in which para 10 has held as under :- “10. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court Under Section 30 of the Act. 10. The next contention raised by the counsel for the appellant that the Commissioner has wrongly considered the salary of the deceased as Rs.
The whole exercise made by the High Court is not within the competence of the High Court Under Section 30 of the Act. 10. The next contention raised by the counsel for the appellant that the Commissioner has wrongly considered the salary of the deceased as Rs. 4,000/- is also not acceptable in view of the fact that the claimants have specifically pleaded that the deceased was getting Rs.4000/- per month as salary and in support of their contention the evidence of father of the deceased Bhagwan Sahai was also produced, whereas neither the owner of the vehicle submitted any documentary proof with regard to payment of Rs.25,00/- per month as salary to deceased nor any oral evidence was produced, therefore, in my considered opinion the Commissioner has rightly given a finding that the deceased at the time of his death getting salary as Rs.4,000/- per month. The last contention raised by the counsel for the appellant regarding no liability of the Insurance Company to pay the compensation as the vehicle was insured in the name of respondent no.5 (Pooran Ram), whereas, on the date of accident the said vehicle was sold transfer to respondent no.6 (Surendra Rathore) is also not acceptable as on the date of accident the vehicle was duly insured, therefore, the Insurance Company is liable to pay the compensation as has been held by the Hon’ble Supreme Court in the matter of Firdaus Vs. Oriental Insurance Company Ltd. & Ors. reported in 2017 (2) R.A.R. 113 (SC) wherein para 15 & 16, has held as under :- “15. Section 157 of the Motor Vehicles Act, 1988 clinches the issue. Section 157 Sub-section (1) contains the deeming provision that "the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of this transfer." Sub-section (1), Section 157 which is relevant is quoted as below : 157.
Section 157 Sub-section (1) contains the deeming provision that "the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of this transfer." Sub-section (1), Section 157 which is relevant is quoted as below : 157. Transfer of certificate of insurance-(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. [Explanation.-For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance]. 16. In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No. HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether Defendant No. 1 was the owner of the vehicle on the date of the accident, or Defendant No. 4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the Defendant No. 1 or not, was unnecessary. 11. In view of the above discussions, no substantial question of law is involved in this appeal. Hence the appeal as well as stay application stands dismissed.