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Rajasthan High Court · body

2018 DIGILAW 2189 (RAJ)

National Insurance Co. Ltd. v. Sitara Bano

2018-11-13

ALOK SHARMA

body2018
JUDGMENT : ALOK SHARMA, J. This Civil Misc. Appeal under Section 30 of the Employee's Compensation Act, 1923 (hereafter ‘the Act of 1923’) impugns the judgment dated 13.9.2004 passed by the Employee's Compensation Commissioner, Jaipur City (Raj.) (hereafter ‘the Commissioner’) in Case No. WCC (F) 10/2002 - Smt. Sitara Bano v. Faiyyaj Ahmed, whereby the appellant Insurance Co. (hereafter ‘the appellant’) has been directed to deposit a sum of Rs. 3,84,280/- payable as compensation to respondents no. 1 to 9, LRs of one Aalam Khan, driver of insured vehicle No RJ 14 T 0788 who died while driving the insured vehicle along with interest @ 9% p.a. for the period commencing 13.3.2002 till one month after the date of award i.e. 13.10.2004 and there after @ 12% p.a. Further penalty of Rs. 38,428/- has been visited on the appellant for default in payment of compensation to the LRs of the deceased Aalam Khan for 2 1/2 years. 2. The facts of the case are that respondent no. 1 Smt. Sitara Bano alongwith her children and mother in law (hereafter ‘the claimants’) - all of mother and LRs of late Aalam Khan instituted an application no. 10/2002 (hereafter ‘the claim application’) before the Commissioner for grant of compensation under the provisions of the Act of 1923. The claim was founded on the death of Aalam Khan, driver of the insured vehicle no. RJ 14 T 0788, presumed by resort to Section 108 of the Evidence Act, 1872 for reason of the fact that on 13.2.1995 since carrying passengers on the insured vehicle, a taxi, to Delhi, he was then not heard of over seven years. It was stated that on 11.3.1995 a FIR had been lodged with the jurisdictional police station with regard to Aalam Khan disappearing along with the insured taxi carrying passengers to Delhi. And despite investigation in respect thereto, no evidence of the missing Aalam Khan or the insured taxi was found and hence investigation closed. It was submitted that the owner of the insured taxi had lodged a claim with the appellant under the relevant insurance policy for the theft loss of insured taxi and the said claim came to be settled on 8.1.1996. It was submitted that the owner of the insured taxi had lodged a claim with the appellant under the relevant insurance policy for the theft loss of insured taxi and the said claim came to be settled on 8.1.1996. It was submitted in the facts of the case the husband/father/son of the nine claimants Aalam Khan, by resort to Section 108 of the Evidence Act be presumed to be dead and as his death related to his disappearance at the time of his driving the insured taxi, it be treated an outcome of an accident while driving and compensation of Rs. 4,15,960/- alongwith interest thereon as also penalty under the provisions of the Act of 1923 be granted. 3. The owner of the insured taxi one Faiyyaj Ahmed in his reply to the claim petition admitted to the factum of Aalam Khan being employed by him as a driver on the insured taxi and also stated that Aalam Khan had taken certain passengers in the insured taxi to Delhi on 13.2.1995 but had since thereafter not been heard of nor the taxi found. It was Faiyyaj Ahmed's case that Aalam Khan in the facts of the case appears to have been murdered and his taxi stolen. It was also stated as averred by the claimants that the appellant had honoured his claim under the insurance policy and compensated him for the theft of the insured taxi car. 4. The appellant - Insurance Company on its part opposed the claim application inter-alia on the ground that the presumed death of Aalam Khan by resort to Section 108 of the Evidence Act did not entail any liability therefor to pay compensation at its end under Section 3 of the Act of 1923. Objections with regard to the ascertainment of wages to determine compensation for Aalam Khan's presumed death were also taken. The claim application was therefore denied and it was prayed that it be dismissed. 5. Taking into consideration the 6 issues struck on the pleadings of the parties and the contesting evidence thereon both oral and documentary, the Commissioner by the impugned judgment and award dated 13.9.2004 held that the claimants were entitled to compensation within the provisions of the Act of 1923 for the presumed death of Aalam Khan by resort to Section 108 of the Evidence Act. This for the apparent logic that the said presumed death related to Aalam Khan's employment as a driver on the insured vehicle. Resultantly the Commissioner awarded a sum of Rs. 3,84,280/- as compensation along with interest @ 9% p.a. commencing 13.3.2002 till 13.10.2004 and 12% thereafter. A penalty of 10% of the awarded compensation aggregating to Rs. 38,428/- for reason of default in the payment of compensation by the appellant to the claimants for 2 1/2 years since the claim was raised was also visited upon the appellant. 6. Hence this appeal. 7. Substantial question of law set out in the memo of appeal is as to whether presumption of death of Aalam Khan by virtue of Section 108 of the Evidence Act would occasion a cause of action for payment of compensation under Section 3 of the Act of 1923? Another question of law agitated in the memo of appeal is as to whether the presumed death by virtue of Section 108 of the Evidence Act would also lead to presume that the death in issue arose due to accident arising out of and in the course of employment of Aalam Khan? Further question of law agitated is whether a driver missing along with the insured vehicle and presumed in law to be dead and so declared could be held to die in an “accident” within the meaning and purpose of the word under the Act of 1923. 8. The question of law agitated in the alternative is as to whether where a workman is presumed to be dead in an accident by virtue of Section 108 of the Evidence Act, how interest on the amount of compensation awarded could be computed and payable. 9. Mr. Vizzy Agarwal appearing for the appellant has in the course of arguments confined his case to Section 3 of the Act of 1923 not attracting to a case where the death of a Drier of the insured vehicle is presumed by drawing upon Section 108 of the Evidence Act. Mr. Vizzy Agarwal submitted that Section 3 of the Act of 1923 provides that if personal injury is caused to the employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter-II - and by extension his insurer. Mr. Vizzy Agarwal submitted that Section 3 of the Act of 1923 provides that if personal injury is caused to the employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter-II - and by extension his insurer. It was submitted that it is pellucid that for any compensation payable under Section 3 of the Act of 1923, death of an employee has to relate to an accident in the course of employment - and there has to be a clear and line link between the accident in the course of employment on the one hand and death or injury on the other. It was submitted that in the instant case, there was no material by way of any positive evidence or otherwise before the Commissioner that Aalam Khan had died for reason of accident in the course of his employment or even that the presumed death of Aalam Khan by resort to Section 108 of the Evidence Act related to or was/could be linked to the alleged “accident”. It was submitted that the presumption under Section 108 of the Evidence Act, as held by the Apex Court in the case of LIC of India v. Anuradha [2004] 9 CLD 586 (SC) would attract only for 7 years subsequent to the date of a person being last seen. Mr. Vizzy Agarwai submitted that in the instant case, Aalam Khan as driver of the insured vehicle was last seen on 13.2.1995. In terms of the dictum of the Apex Court in the case of LIC of India v. Anuradha (supra), presumption of his death would operate only on 12.2.2002. It was submitted that on this fact the date of death of Aalam Khan i.e. 12.2.2002 could not relate to the accident 13.2.1995 even if at all the disappearance of the insured vehicle and Aalam Khan there with as on 13.2.1995 could be by a stretched interpretation, which the appellant opposes, be taken as the date of the accident. The linkage between the ‘date of accident’ and the ‘date of death’ thus having broken, Section 3 of the Act of 1923 would not attract and consequently neither the employer of Aalam Khan nor the insurer of the vehicle, the appellant - Insurance Co. would be liable to pay compensation in regard thereto. Mr. The linkage between the ‘date of accident’ and the ‘date of death’ thus having broken, Section 3 of the Act of 1923 would not attract and consequently neither the employer of Aalam Khan nor the insurer of the vehicle, the appellant - Insurance Co. would be liable to pay compensation in regard thereto. Mr. Vizzy Agarwal also emphatically submitted that in the case of LIC of India v. Anuradha (supra), the Apex Court has categorically held that the presumed death under Section 108 of the Evidence Act following 7 years from the person last seen does not extend to a presumption of the manner and the circumstances of the death of the person so presumed to be dead. 10. Mr. Ram Singh Rathore has supported the judgment and award passed by the Commissioner impugned in this appeal but without anything more. 11. The Apex Court in the case of LIC of India v. Anuradha (supra) held as under: “10. Neither Section 108 of Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time. The presumption stands un-rebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before’ that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death. 11. 11. A presumption assists a party in discharging the burden of proof by taking advantage or presumption arising in his favour dispensing with the need of adducing evidence which may or may not be available. Phipson and Elliott have observed in ‘Manual of the Law of Evidence’ (Eleventh Edition at p.77) that although there is almost invariably a logical connection between basic fact and presumed fact, in the case of most presumptions it is by no means intellectually compelling. In our opinion, a presumption of fact or law which has gained recognition in statute or by successive judicial pronouncements spread over the years cannot be stretched beyond the limits permitted by the statute or beyond the contemplation spelled out from the logic, reason and sense prevailing with the Judges, having written opinions valued as precedents, so as to draw such other inferences as are not contemplated. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise. 12. If an issue may arise as to the date or time of death the same shall have to be determined on evidence-direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years absence was shown to have elapsed. 13. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years absence was shown to have elapsed. 13. We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant-LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies. 14. The appeals are allowed and both the judgments of the High Court under appeal are set aside but subject to the clarification, that, in view of the statement made on behalf of the appellant-LIC, the monetary benefits available to the respondents in the two appeals under the judgments of the High Court shall not be denied by the appellant-LIC.” 12. In the instant case, the purported accident arising from the disappearance of the insured vehicle bearing no. RJ 14 T 0788 and its driver Aalam Khan as per claimants’ own case and even other wise took place on 13.2.1995 even though it is extremely doubtful as to whether disappearance of the vehicle along with driver thereof can be termed an accident within the meaning of the term under the Act of 1923. The death of Aalam Khan presumed under Section 108 of the Evidence Act will be held to be on 12.2.2002. The death of Aalam Khan presumed under Section 108 of the Evidence Act will be held to be on 12.2.2002. The date of the alleged “accident” of the insured vehicle and the date of death of Aalam Khan by resort to presumption under Section 108 of the Evidence Act in the course of his employment there fore have no linkage essential for grant of compensation under Section 3 of the Act of 1923. 13. I am of the considered view that in the aforesaid uncontroverted facts and state of law relating to presumption of death under Section 108 of the Evidence Act, and there being no other evidence of any probative worth before the Commissioner to find and hold that the presumed death of Aalam Khan arose from the alleged “accident” in the course of his employment as a driver of the insured vehicle, the claimants’ claim to compensation could not have been allowed by the Commissioner. 14. In this view of the matter, I am inclined to set-aside the impugned judgment and award passed by the Commissioner and allow this appeal. Accordingly directed. The award amount deposited by the appellant Insurance Company with the Commissioner be forthwith refunded to it.