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Himachal Pradesh High Court · body

2020 DIGILAW 624 (HP)

Oriental Insurance Company Limited v. Prem Kumar

2020-09-21

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, filed under Section 30 of the Employee’s Compensation Act, the appellant/Insurance Company has challenged the order passed by Commissioner, Employee’s Compensation, Solan, District Solan, H.P., in WCA No.7/2 of 2015, titled as Prem Kumar & another Versus Sanjeev Kumar & another, decided on 26.07.2019, vide which order, learned Commissioner awarded an amount of Rs.8,85,480/- alongwith interest @ 12% per annum w.e.f. 24.09.2014, one month after the death of deceased, in favour of the claimants therein. 2. Brief facts necessary for the adjudication of the present appeal are as under:- Respondents No.1 and 2 in the present appeal (hereinafter referred to as the claim petitioners) filed a petition under Section 22 of the Employee’s Compensation Act, inter alia, on the ground that they were the parents of Dheeraj Kumar, who was engaged by Sanjay Kumar as a driver with his truck bearing registration No.HP-11-6943. His salary was Rs.10,000/- per month, which excluded over time. On 24.08.2014, the vehicle being driven by Dheeraj Kumar met with an accident and as a result of grievous injuries which were sustained by Dheeraj Kumar in the said accident, which occurred in the course of his employment, near Bagi, Narkanda, Tehsil Nankhadi, District Shimla, H.P., he lost his life. The claimants prayed for compensation to the tune of Rs.10,00,000/-, inter alia, on the ground that the claimants were dependants upon the deceased whose age at the time of death was only twenty two years. 3. Petition was resisted by the owner of the vehicle (Sanjay Kumar), inter alia, on the ground that as the truck was duly insured, it was the Insurance Company, which was liable to compensate the claimants. The factum of the truck being owned by him which was being driven by the deceased and further the factum of the deceased being engaged by him as a driver upon the said truck on monthly salary of Rs.10,000/- was admitted by him. As per the owner, truck in issue was duly insured with the Oriental Insurance Company, vide Insurance Policy No.263197/31/2015/83, valid from 02.05.2014 to 01.05.2015. 4. The Insurance Company resisted the claim petition, inter alia, on the ground that the truck was not insured with it and further that deceased was not having a valid Driving Licence to drive the vehicle in issue. 4. The Insurance Company resisted the claim petition, inter alia, on the ground that the truck was not insured with it and further that deceased was not having a valid Driving Licence to drive the vehicle in issue. It was further the stand of the Insurance Company that the truck was deliberately handed over for being driven to a person who did not possess a valid licence and thus, the conditions of the policy stood violated and the truck was not having required permit also. 5. On the basis of the pleadings of the parties, learned Commissioner framed the following issues:- “1. Whether the respondent No.1 had employed late Sh. Dheeraj Kumar as driver in his truck bearing No.HP-11- 6943, as alleged? OPP 2. Whether late Sh. Dheeraj Kumar met with an accident on 24.8.2014 and died during the course of his employment with respondent No.1, as alleged? OPP. 3. Whether the petitioners are entitled for compensation as prayed for? OPP 4. Whether the deceased Dheeraj Kumar was not holding valid and effecting driving licence at the time of accident, as alleged? OPR-2 5. Whether the truck in question was not only duly registered and it was not having required permit at the time of accident and could not be plied in public place, as alleged? OPR-2. 6. Relief.” 6. On the basis of evidence led by the parties in support of their respective contentions, learned Commissioner returned the following findings on the issues so framed:- “Issue No.1 Yes. Issue No.2 Yes. Issue No.3 Yes. Issue No.4 No Issue No.5 No Relief The petition of the petitioners is allowed, per operative of the order.” 7. Claim petition was, thus, allowed by learned Commissioner by holding the claimants to be entitled for compensation of Rs. 8,85,480/- alongwith interest @ 12% per annum w.e.f. 24.09.2014, i.e. one month after the death of deceased (Dheeraj Kumar) in accident till deposit of the amount. While holding that the claimants were entitled for compensation to the tune of Rs.8,85,480/-, learned Commissioner held that the deemed monthly wages of the workman came to Rs.8,000/- and that it stood proved on record that the claimants were dependants upon their deceased son. While holding that the claimants were entitled for compensation to the tune of Rs.8,85,480/-, learned Commissioner held that the deemed monthly wages of the workman came to Rs.8,000/- and that it stood proved on record that the claimants were dependants upon their deceased son. Learned Commissioner also held that admittedly the age of the deceased at the time of death was twenty two years and as the employer had not denied the fact of deceased being paid wages of Rs.10,000/- per month, then on the strength of reasoning assigned in para 28 onwards of the order, learned Commissioner took the deemed monthly wages of the workman to be Rs.8,000/-. The compensation was assessed by taking 50% of the deemed income i.e. Rs.4,000/- and multiplying it by R Factor i.e. 221.37. 8. Feeling aggrieved, the Insurance Company has filed the present appeal. 9. This appeal was admitted on 28.02.2020, on the following substantial questions of law:- “1. Whether the appellant is liable to pay the compensation when the driving licence of the deceased driver was found not issued by the concerned DTO which means that licence was fake that too when the same has been proved by the appellant by leading cogent evidence? 2. Whether the report qua driving licence obtained under RTI from the concerned District Transport Officer require corroboration as per Section 77 of the Evidence Act? 3. Whether the learned Commissioner is right in relying upon the evidence led contrary to the pleading as the owner has not stated a single word in his reply that prior to engaging the driver has had checked and verified the driving licence of the deceased driver? 10. I have heard learned counsel for the parties and have gone through the orders passed by learned Commissioner as well as record of the case. 11. A perusal of the record of the case demonstrates that in order to prove their case, claimant Prem Kumar stepped into the witness box as PW-1 and he submitted his affidavit by way of evidence which is on record as Ext.PW1/A. It was stated in this affidavit that the deceased son of the petitioner was engaged as a driver by the owner of the vehicle bearing Registration No.HP-11-6943 and that his per month salary was Rs.10,000/-, out of which he used to hand over an amount of Rs.8,000/- to the claimants for household expenses. It was further mentioned in the affidavit that the son of the claimants died in an accident, on 24.08.2014, in the course of his duty, in which accident he had received fatal injuries. The cross-examination of this witness demonstrates that there was no question put to him by the present appellant that the son of the claimants was not possessing a valid driving licence. 12. The owner of the vehicle (Sanjay Kumar) entered into the witness box as RW-1. He submitted his affidavit by way of evidence, which is on record as Ext.RW1/A. A perusal of this affidavit demonstrates that the owner of the vehicle had mentioned therein that he was owner of the vehicle bearing Registration No.HP-11-6943, which was duly insured with the appellant/Oriental Insurance Company Limited and the insurance was valid from 02.05.2014 to 01.05.2015. He further mentioned in the affidavit that he had engaged the deceased as driver upon the said vehicle in the month of May, 2014, on monthly wages of Rs.10,000/-. In para 3 of this affidavit, it stood mentioned that the owner had duly seen and checked the driving licence of the deceased before he was engaged by him as driver upon his vehicle. The factum of the deceased having died in the course of employment is also borne out from the contents of this affidavit. 13. Record further demonstrates that on behalf of the Insurance Company, Smt. Tamanna, entered the witness box as RW-3, who was serving as Manager (Legal) in the Divisional Office of the Insurance Company at Shimla. She deposed in the Court that the Insurance Company had undertaken an investigation through one Shri Pritam Singh Chandel with regard to validity of the licence of the deceased and in the course of investigation, the information which was supplied to them was Mark ‘C’, in terms whereof, the deceased was not possessing a valid driving licence and thus the conditions of the Insurance Policy stood violated. 14. Before this Court deals with Mark ‘C’, it is apt to mention at this stage itself that in the course of cross-examination of the owner of the vehicle by the Insurance Company, no suggestion was put to the owner by the Insurance Company that at the time of engaging the deceased as his driver, he had not checked the driving licence of the deceased. 15. 15. Now, in this background, while answering the issue framed that the deceased Dheeraj Kumar was not holding a valid and effecting driving licence at the time when the accident took place, learned Commissioner held that this plea stood belied by the statements of RW-1 and RW-2, who had clearly stated that they had checked the licence of the deceased. RW-2 was earlier employer of the deceased driver. Learned Commissioner further held that RW-3 had clearly admitted in the course of her cross-examination that she had not seen the letter which was issued to Shri Pritam Singh Chandel for the purpose of verification of the driving licence. Learned Commissioner further held that the contents of Mark ‘C’ otherwise also did not per se led to the conclusion the driving licence possessed by the deceased was invalid. 16. In my considered view, the findings so returned by learned Commissioner are apt findings based upon the evidence on record and it cannot be said that it stood proved on record that the driving licence possessed by the deceased was either a fake licence or that learned Commissioner relied upon the evidence, led contrary to the pleadings. As it was the case of the Insurance Company that the licence possessed by the deceased was a fake licence, onus was upon it to prove this allegation. Record of the case demonstrates that the Insurance Company miserably failed to prove this fact before learned Commissioner. No evidence was led by the Insurance Company to demonstrate that the licence of the deceased was a fake licence. 17. Mark ‘C’, which is the communication issued by the Office of PIO & District Transport Officer, Tuensang, Nagaland, reads as under:- “With reference to the subject cited above, this is to inform you that no record has been found/available in respect of Driving Licence No.44458/TV/T/2010 in the name of Shri Dhiraj Kumar in the office of the undersigned”. A perusal of the information which stood supplied through Mark ‘C’ nowhere can be construed to be a proof of the fact that the licence possessed by the deceased was not a valid licence or was a fake licence. All that this communication states is that no record was found/available in this fact of the driving licence of Dheeraj Kumar in the office of the undersigned. All that this communication states is that no record was found/available in this fact of the driving licence of Dheeraj Kumar in the office of the undersigned. This information was supplied to one Shri Pritam Singh Chandel, who did not enter the witness box. What information was sought by Shri Pritam Singh Chandel under Right to Information Act from the Office of PIO & District Transport Officer, Tuensang, Nagaland, is not on record. Therefore, in these circumstances, a simple response to Shri Pritam Singh Chandel, vide Mark ‘C’ that no record has been found/available in respect of the driving licence in issue, cannot be construed to be a proof of the fact that the licence possessed by Dheeraj Kumar i.e. the deceased driving, was a fake licence. The findings which have been returned in this regard by learned Commissioner in para 33 of the order, therefore, cannot be said to be perverse findings nor it can be said that the appellant had proved before learned Commissioner the fact that the licence possessed by the deceased was a fake licence. 18. Coming to the provisions of Section 77 of the Indian Evidence Act, all that this Court can observe is that Section 77 of the Indian Evidence Act provides that such certified copies may be produced in proof of the contents of the public documents or parts of the public documents, of which they purport to be the copies. It is not understood as to how Section 77 of the Evidence Act comes to the rescue of the present appellant to demonstrate and prove on the basis of contents of Mark ‘C’ that the driving licence possessed by the deceased was a fake licence. In other words, in view of the provisions of Section 77 of the Indian Evidence Act, this Court is not discarding Mark ‘C’ nor has the same being discarded by learned Commissioner, but it is reiterated that contents of Mark ‘C’ do not prove that the driving licence possessed by the deceased was a fake licence. 19. Similarly, from the record it cannot be said that learned Commissioner relied upon evidence led contrary to the pleadings. 19. Similarly, from the record it cannot be said that learned Commissioner relied upon evidence led contrary to the pleadings. In the reply which was filed by the owner of the vehicle to the claim petition, nowhere it stands mentioned by the owner of the vehicle that he had not verified the licence of the deceased at the time when he engaged him as a driver. In my considered view, simply because it was not expressly mentioned in the response that the owner of the vehicle had engaged the deceased as his driver after verifying his licence, same does not means that this fact has to be assumed against either the claimants or the owner of the vehicle. This, I say for the reason that it has to be appreciated and understood that the contents of the response filed to the claim petition by respondent No.1, have to be construed harmoniously with the contents of the claim petition itself, which were being responded to by way of response. 20. Incidently, in the affidavit which was filed by way of evidence by the owner of the vehicle, in para 3 thereof, he clearly and categorically stated that he had checked the licence of the driver before he engaged him, which he found to be valid. As already mentioned hereinabove also, there was no cross-examination on this point by the Insurance Company and no suggestion was put to the owner of the vehicle by the Insurance Company that the owner did not verify the licence of the driver at the time of his engagement. Therefore, it cannot be said that learned Commissioner relied upon the evidence contrary to the pleadings while deciding the claim petition. Substantial questions of law are answered accordingly. 21. In view of the findings so returned hereinabove, as this Court does not finds any merit in the present appeal, the same is dismissed, so also pending miscellaneous application(s), if any. Interim order, if any, also stands vacated. No order as to costs.