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2018 DIGILAW 3684 (MAD)

A. Yesudhas v. M. C. A. Subramaniam

2018-10-09

V.M.VELUMANI

body2018
JUDGMENT : V.M. Velumani, J. 1. This civil miscellaneous appeal has been filed against the award, dated 5.9.2008 made in WC No. 201 of 2006, on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul. 2. The appellant is claimant in WC No. 201 of 2006, on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul. He filed the said WC No. 201 of 2006 for the injuries sustained by him in the accident that occurred on 23.2.2006. 3. According to the appellant, he was employed by the respondent No. 1 as driver on a monthly salary of Rs. 4,000. The accident occurred during and in the course of employment under the respondent No. 1. Respondent No. 1 as employer and the respondent No. 2 as insurer of the vehicle are liable to pay compensation. 4. The respondent No. 1 filed counter and admitted that the appellant was employed by him as driver on monthly salary of Rs. 4,000 and accident occurred during and in the course of employment. He further contended that the vehicle was insured with the respondent No. 2 and the respondent No. 2 is only liable to pay compensation. 5. The respondent No. 2 filed counter and denied that the appellant was employed as driver by the respondent No. 1 and contended that the appellant was not working as a driver, but he was an employee of the respondent No. 1 in his firm. The appellant did not possess any driving licence and hence, the respondent No. 2 is not liable to pay any compensation. 6. The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul, considering the pleadings, oral and documentary evidence let in by the parties held that the appellant was employed as driver by the respondent No. 1 and that appellant sustained injuries in the accident during and in the course of employment. The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul directed the respondent No. 1 to pay compensation and held that the respondent No. 2 insurance company is not liable to pay compensation as the appellant did not possess valid driving licence. 7. Aggrieved by the said order, the appellant has come up with the present appeal. 8. The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul directed the respondent No. 1 to pay compensation and held that the respondent No. 2 insurance company is not liable to pay compensation as the appellant did not possess valid driving licence. 7. Aggrieved by the said order, the appellant has come up with the present appeal. 8. The learned counsel appearing for the appellant contended that the appellant has filed the said claim petition under Workmen's Compensation Act and proved that the appellant was employee of respondent No. 1 and accident occurred during and in the course of employment. But, the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul, erroneously applied principles under Motor Vehicles Act and held that the respondent No. 2 is not liable to pay any compensation. 9. The learned counsel appearing for the respondent No. 2 contended that the appellant did not possess driving licence at the time of accident. The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul, considering the judgment of the Hon'ble Apex Court in United India Insurance Co. Ltd. v. Gian Chand, 1997 ACJ 1065 (SC), has rightly held that the respondent No. 2 insurance company is not liable to pay compensation and hence, no substantial questions of law arise in the appeal and prayed for dismissal of this appeal. 10. Though the respondent No. 1 entered appearance through his counsel, there is no representation on behalf of the respondent No. 1 on 5.10.2018 and today, i.e., on 9.10.2018. 11. I have heard the learned counsel appearing for the appellant and respondent No. 2 and perused the materials available on record. 12. At the time of admission following substantial question of law has been framed: Whether the Workmen's Compensation Commissioner is correct in fixing the responsibility of paying compensation upon the respondent No. 1 on the basis that the driver did not possess proper licence? From the materials on record it is seen that the appellant had initiated proceedings under Workmen's Compensation Act, claiming compensation for the injuries sustained by him during and in the course of employment. The respondent No. 1 admitted that the appellant was employed as driver by him and accident occurred only during and in the course of employment. From the materials on record it is seen that the appellant had initiated proceedings under Workmen's Compensation Act, claiming compensation for the injuries sustained by him during and in the course of employment. The respondent No. 1 admitted that the appellant was employed as driver by him and accident occurred only during and in the course of employment. The respondent No. 2 disputed its liability to pay compensation on the ground that the appellant was not employed as driver of the respondent No. 1 and he did not possess driving licence. The appellant has let in evidence as well as marked first information report lodged by the driver of the other lorry and proved that he was employed by the respondent No. 1 as driver and the accident occurred when he was driving the vehicle belonging to the respondent No. 1 and insured with the respondent No. 2. As far as the contention of the respondent No. 2 with regard to the driving licence is concerned, in any proceedings under Workmen's Compensation Act, the Commissioner has to decide whether there is an employer-employee relationship and that whether the accident occurred during and in the course of employment and then, he has to award compensation based on the provisions of Workmen's Compensation Act. The provisions of Motor Vehicles Act are not applicable to the claim filed under Workmen's Compensation Act. The judgment in National Insurance Co. Ltd. v. Panibudi Chulia, 2007 ACJ 164 (Orissa), relied on by the learned counsel appearing for the appellant, is squarely applicable to the facts of the present case and the relevant para 8 reads as follows: (8)...In paras 21 and 34 of the judgment, the Apex Court having laid down that under the 1988 Act if the driver of the vehicle has no licence, the insurer shall not be liable to indemnify the insured and that in a given situation the Accidents Claims Tribunal having regard to its rights and liabilities vis-à-vis the third person may direct the insurance company to meet the liabilities of the insured permitting it to recover the same from the insured and that the 1923 Act does not envisage such a situation, we are of the view that the decision rendered in the case of Oriental Insurance Co. Ltd. v. Akadasi Das, 96 (2003) CLT 126, has not been correctly decided." The judgment relied on by the respondent No. 2 before the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul relates to claim under Motor Vehicles Act. The Commissioner erred in exonerating the respondent No. 2 by relying upon the judgment produced by the respondent No. 2 which is not applicable to the facts of the present case and hence, the impugned order is hereby set aside and both the respondents are liable to pay compensation. 13. In the result, this civil miscellaneous appeal is allowed. No costs. 14. The respondent No. 2 insurance company is directed to deposit the entire amount awarded by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul, within a period of six weeks from the date of receipt of a copy of this judgment, after deducting the amount already deposited if any, and on such deposit being made, the claimant is permitted to withdraw the award amount on filing necessary application before the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul.