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2019 DIGILAW 2023 (HP)

NATIONAL INSURANCE COMPANY v. MADAN LAL SHARMA

2019-12-24

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, the appellant has challenged order dated 04.07.2008, passed by learned Commissioner under the Workmen's Compensation Act, Shimla, District Shimla, H.P. in case No. 9/2006, titled as Sh. Madan Lal Sharma vs. Smt. Parmeshwari Devi and another, vide which, the claim petition filed by respondent No. 1 herein before the learned Commissioner stood decided in the following terms:- "Therefore, a compensation of Rs. 4,99,152/- (Rupees One Lakh Ninety Nine Thousand One Hundred and Fifty Two) only is hereby awarded in favour of the petitioner. The respondent No. 2, National Insurance Company through its Divisional Manager, Hotel Himland, Shimla, H.P. is hereby directed to deposit the above amount in this court within 30 days from the date of issue of this order failing which the interest and penalty as prescribed under the provisions of Workmen's Compensation Act shall be imposed. A copy of this order be supplied to the respondent No. 2 free of cost. The file may be put up after expiry of 30 days." 2. This appeal was admitted on 23.07.2010 and on 29.06.2017 following substantial questions of law were framed for adjudication thereof:- 1. Whether the award under challenge suffers from perversity as the learned Commissioner has erred in not appreciating that the claimant was not possessing a valid driving licence to drive the vehicle, which was being driven by him on the fateful date when the accident took place? 2. Whether the learned Commissioner has erred in not appreciating that there was no material on record to substantiate the relationship of employer and employee between the claimant and alleged employer, namely Smt. Parmeshwari Devi? 3. Learned Counsel for the appellant has argued that the order passed by learned Commissioner is not sustainable in the eyes of law as learned Commissioner has erred in not appreciating that there was no evidence on record to demonstrate that there was a relationship of employee and employer between the claimant and respondent No. 1. She has further argued that in fact it was concealed from the learned Commissioner by the claimant and respondent No. 1 therein that they happened to be son and mother, respectively. She submits that this cast grave clouds over the veracity of the claim and claimant did not approach the learned Commissioner with clean hands. She has further argued that in fact it was concealed from the learned Commissioner by the claimant and respondent No. 1 therein that they happened to be son and mother, respectively. She submits that this cast grave clouds over the veracity of the claim and claimant did not approach the learned Commissioner with clean hands. She has further argued that the objections which were taken in the reply which was filed by the present appellant before the learned Commissioner with regard to the maintainability of the claim petition, collusion, as well as with regard to validity of the licence possessed by the claimant at the time while he was driving the vehicle in issue when it met with the accident, were neither addressed nor redressed in the order passed by the learned Commissioner. On the basis of these submissions, she prays that as there was nothing on record to demonstrate that the claimant and respondent No. 1 were employee and employer, respectively, the order passed by the learned Commissioner is not sustainable and is liable to be set aside. She has also argued that the claimant did not produce an iota of evidence on record to demonstrate as to what was purportedly the monthly wages of the claimant and this important aspect of the matter has been totally ignored by the learned Commissioner. 4. On the other hand, Mr. Y. Paul, learned Counsel, who is appearing on behalf of both the respondents, i.e. employee and the employer, submits that there is no infirmity with the order which has been passed by the learned Commissioner as all the pleas which have been raked up in this petition were never agitated by the appellant before learned Commissioner. He has further argued that as in the reply which has been filed by the employer before the learned Commissioner, the factum of relationship of employee and employer was not disputed, the same was sufficient for the purpose of adjudication of the claim petition filed by the claimant as the Workmen's Compensation Act is a beneficial legislation and has to be so perceived. Thus, he prayed that as this appeal is devoid of merits, the same be dismissed accordingly. 5. I have heard learned Counsel for the parties and also gone through the order passed by the learned Commissioner as well as the record of the case. 6. Thus, he prayed that as this appeal is devoid of merits, the same be dismissed accordingly. 5. I have heard learned Counsel for the parties and also gone through the order passed by the learned Commissioner as well as the record of the case. 6. It is not in dispute that claimant Madan Lal Sharma is the son of Smt. Parmeshwari Devi, i.e. the owner of the vehicle which met the accident and on account of which accident, certain disabilities have been suffered by the claimant. It is not not in dispute that the claimant claimed himself to be the employee of Smt. Parmeshwari Devi, and thus, claimed compensation under the Workmen's Compensation Act on the pleadings that he was engaged as a driver by by Smt. Parmeshwari Devi on monthly wages of Rs.5,000/- and an additional amount of Rs.50/- was paid to him. Now incidentally, a perusal of the claim petition filed by claimant Madan Lal Sharma demonstrates that in the same, he did not disclose that Smt. Parmeshwari Devi was his mother. Though in law, there is no requirement that he was bound to have had disclosed this fact in the claim petition, however, in the peculiar facts of this particular case, the same gains importance. There is no document on record from which it can be inferred that Madan Lal was engaged by Smt. Parmeshwari Devi as a driver. All that is on record are the pleadings made in the claim petition by Madan Lal Sharma that he was engaged by Smt. Parmeshwari Devi as a driver and admission of the said fact in the reply by Smt. Parmeshwari Devi. It is also a matter of record that the vehicle which stood insured by the present appellant was bearing registration No. HP 51-4675, which was a Swaraj Mazda, two tonne vehicle. As per the insurance cover, the gross weight of the vehicle was stated to be 8800 kg. In the licence which is on record of the claimant demonstrates that he was authorised vide said licence Ext. PW1/A to drive a light motor vehicle. As per Section 2 (21) of the Motor Vehicle Act, a light motor vehicle means a transport vehicle, gross vehicle weight of which does not exceed 7500 kgs. In the licence which is on record of the claimant demonstrates that he was authorised vide said licence Ext. PW1/A to drive a light motor vehicle. As per Section 2 (21) of the Motor Vehicle Act, a light motor vehicle means a transport vehicle, gross vehicle weight of which does not exceed 7500 kgs. Now a perusal of the order which has been passed by the learned Commissioner demonstrates that none of these aspects have been considered and gone into by the learned Commissioner in the impugned order. 7. As it was the claim of the claimant before the learned Commissioner that he was an employee of respondent No. 1, the findings returned by learned Commissioner to the effect that the claimant was proved to be an employee of respondent No. 1 ought to have been substantiated by some evidence on record, which is missing in the present case. In the reply which was filed by the present appellant to the claim petition, in the preliminary objections, it was specifically mentioned that the vehicle in issue which had met with the accident was not driven by an authorised driver and it was in the knowledge of the owner of the vehicle that the driver was not having a valid and effective licence at the time of the accident. It was further specifically mentioned in the preliminary objections that the petition was not maintainable as the same was filed by the claim petitioner in collusion with respondent No. 1 therein. 8. As I have already mentioned above, the factum of the claimant being son of the owner of the vehicle was concealed in the pleadings both by the claimant as well as the owner of the vehicle. No document has been placed on record to prove the relationship of the employer and employee. Copy of the driving licence on record admittedly did not authorise the claimant to drive the offending vehicle. The objection of collusion taken in the reply by the appellant does not finds mention in the impugned order. The findings returned even on the point of the claimant purportedly being an employee of respondent No. 1 are cryptic and vague. Copy of the driving licence on record admittedly did not authorise the claimant to drive the offending vehicle. The objection of collusion taken in the reply by the appellant does not finds mention in the impugned order. The findings returned even on the point of the claimant purportedly being an employee of respondent No. 1 are cryptic and vague. After discussing the respective contentions of the parties and taking into consideration the statement of PW1, all that the Commissioner has said is that "it is proved that petitioner was an employee with the respondent No. 1 and sustained injuries during the course of his employment and he is entitled for compensation". This, in my considered view, does not suffices the spirit of the Act, as the Commissioner was required to answer the objections which were taken in the reply by present appellant on the basis of the evidence which was on record. 9. Therefore, the impugned order is not sustainable in the eyes of law as the same has been passed without adjudicating the objections of the present appellant. Substantial questions of law are answered accordingly and the present appeal is partly allowed by setting aside the order passed by the learned Commissioner dated 04.07.2008 and by further remanding the matter back to the learned Commissioner to decide the claim petition afresh in view of the pleadings of the parties as well as evidence which has been placed on record by the parties. 10. It is clarified that no opportunity shall be granted by the learned Commissioner to either of the parties to place any additional material on record. 11. Parties are directed to appear before learned Commissioner on 27.01.2020. 12. Appeal stands disposed of in above terms, so also pending miscellaneous application(s), if any.