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2023 DIGILAW 155 (HP)

National Insurance Company Ltd. v. Jeet Mani

2023-03-16

AJAY MOHAN GOEL

body2023
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant/ Insurance Company assailed order dated 04.12.2018, passed by learned Commissioner, Under Employees’ Compensation Act, 1923, Kinnaur at Reckong Peo, District Kinnaur, H.P., in case No.6-2 of 2013, titled as Smt. Jeet Mani & others Versus Smt. Heera Mani and another, in terms whereof, the claim petition preferred by the respondents/claimants under Section 22(1) of the Employees’ Compensation Act, was decided in the following terms :- “55. As a result of partly allowing the petition, petitioners are held entitled to the compensation to the tune of Rs.8,73, 880.00 and interest w.e.f. 04.02.2012 (i.e. one month after the date of accident) to 04.12.2018 i.e. 6 years and 10 months, which comes to Rs.8,73,880.00, in total, Rs.15,90,462.00 from respondents No.2 and 3, in equal proportions. 56. Both respondents No.2 and 3 shall be indemnified to the entire amount of compensation alongwith interest by respondent No.4 being an Insurance Company.” 2. This appeal was admitted on 21.10.2022 on the following substantial questions of law :- “1. Whether impugned award awarding the amount of compensation to claimants deserve to be set aside or modified because the claim in respect of driver of insured vehicle was not covered by the policy of insurance as no premium in respect of the paid driver was paid by the owner/insured and owner/insured to this extent had contracted out? 2. Whether learned Commissioner, employee’s Compensation, while passing the impugned Award had failed to appreciate that since accident had occurred while the deceased was driving vehicle negligently under influence of the intoxicating liquor (As per RFSL, the quantity of alcohol in his blood was reported to be 291.97 mg%) which was in excess of the permissible limit and this led to the accident in question, hence, the liability of payment of compensation amount to claimants could not be foisted on appellant-insurer and the impugned award is liable to be set aside? 3. Brief facts necessary for the adjudication of the present appeal are that the respondents/claimants (hereinafter to be referred as the ‘claimants’) filed a claim petition, inter alia, on the ground that their predecessor-in-interest, i.e. husband of claimant No.1 and father of claimants No.2 and 3 was engaged as a driver of vehicle (Car) bearing registration No.HP 25A-1446. 3. Brief facts necessary for the adjudication of the present appeal are that the respondents/claimants (hereinafter to be referred as the ‘claimants’) filed a claim petition, inter alia, on the ground that their predecessor-in-interest, i.e. husband of claimant No.1 and father of claimants No.2 and 3 was engaged as a driver of vehicle (Car) bearing registration No.HP 25A-1446. The owner of the vehicle was one Shri Ishwar Lal and the deceased was engaged as a driver on the said vehicle on monthly salary of Rs.3,500/-per month and in addition, he was also been paid an amount of Rs.150/-per day as daily expenses for his food etc. According to the claimants, the driver of the car lost his life in an accident involving the said vehicle which he was driving at the relevant time on 04.01.2012. The owner of the vehicle was in the vehicle and the same was being driven for business purpose from Shong to Tapri. The accident took place near a place known as Tilagech in District Kinnaur. According to the claimants, after the accident as the owner of the vehicle did not compensate the claimants in terms of provisions of the Employees Compensation Act, hence the claim petition. 4. In terms of the claim petition, the claimants prayed for payment of compensation to the tune of Rs.8,00,000/- alongwith interest and penalties. 5. The petition was resisted by owner of the vehicle (As the owner of the vehicle died during the pendency of the proceedings before learned Commissioner, he was substituted by his legal representatives). In the reply, though the factum of the accident was admitted so also the factum of death of driver in the same, however, the salary as was mentioned in the claim petition was not admitted and it was stated that the same was exaggerated. It was further the stand of owner of the vehicle that the ill-fated vehicle was duly insured with the Insurance Company for all risks and liabilities. 6. The claim petition was resisted by the Insurance Company, inter alia, on the ground that deceased-Roop Lal was not employee of late Shri Ishwar Lal. It was further the stand of the Insurance Company that the vehicle was being driven in violation of the insurance policy and the insured was not even possessing a valid Registration Certificate of the vehicle at the time when the accident took place. It was further the stand of the Insurance Company that the vehicle was being driven in violation of the insurance policy and the insured was not even possessing a valid Registration Certificate of the vehicle at the time when the accident took place. It was further the case of the Insurance Company that the accident in fact took place on account of the negligence of the driver who was intoxicated. 7. On the basis of pleadings of the parties, learned Commissioner framed the following issues :- “1. Whether deceased Roop Lal was workman (Employee) within the definition of the Act? ….O.P.P. 2. Whether accident has accrued during the course of employment of deceased? ….O.P.P. 3. whether petitioners are entitled to the compensation from respondents? ….O.P.P. 4. Whether the petition is not maintainable? ….O.P.R. 5. Relief.” 8. On the basis of the evidence which was led by the parties to prove their respective contentions, the issues so framed were decided as under :- “ISSUE NO.1 Yes. ISSUE NO.2 Yes. ISSUE NO.3 Yes. ISSUE NO.4 No. RELIEF: Per operative portion of this ORDER, the petition filed by the petitioner, is partly allowed with costs.” 9. The claim petition was accordingly decided by learned Commissioner by holding the petitioners to be entitled to compensation to the tune of Rs.8,73,880/- alongwith interest as mentioned in the claim petition. 10. Feeling aggrieved, the Insurance Company has preferred this appeal which was admitted on substantial questions of law which I have already referred to hereinabove. 11. I have heard learned Senior Counsel for the appellant/Insurance Company as well as learned counsel for the respondents. 12. The first substantial question of law on which the present appeal has been admitted is as to whether the impugned award is liable to be set aside on the ground as learned Commissioner erred in not appreciating that driver of the vehicle was not covered by the insurance policy as no premium in respect of the driver was paid. 13. The insurance policy is on record as Ext.RW1/B. A perusal thereof demonstrates that the premium was indeed paid by the insured towards legal liability (W.C.) to driver. The same could not be disputed by the appellant. 13. The insurance policy is on record as Ext.RW1/B. A perusal thereof demonstrates that the premium was indeed paid by the insured towards legal liability (W.C.) to driver. The same could not be disputed by the appellant. In this view of the fact, it cannot be held that the impugned award is bad as learned Commissioner erred in not appreciating that no premium was paid, insuring the driver, because record demonstrates that as per the insurance policy, premium was indeed paid with regard to insurance of the driver of the vehicle also. 14. Now coming to the second substantial question of law, here is a case where as a result of the unfortunate accident, the driver of the vehicle lost his life. Sub-section (1) of Section 3 of the Employees Compensation Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, then his employer shall be liable to pay compensation in accordance with the provisions of this Chapter. Proviso thereof provides that employer shall not be so liable, inter alia, in respect of any injury not resulting in death or permanent total disablement caused by an accident which is directly attributable to the employee having been at the time thereof under the influence of drink or drugs. There is no provision in the Act which exonerates an employer from the liability payable to an employee wherein the accident may be directly attributable to the employer being under the influence of drink of drugs, the employee looses his life in the incident. Meaning thereby that the proviso to sub-section (1) of Section 3 is not a bar exonerating the employer from compensating the employee in the event of the incident resulting in death of an employee, which incident may be an outcome of the employee being under the influence of drink or drugs. 15. Therefore, this Court has no hesitation in holding that learned Commissioner has not erred in appreciating that the Insurance Company was not liable to indemnify the insured, because the deceased employee was under the influence of liquor at the time when the accident took place because of the statutory provisions mentioned hereinabove. Substantial questions of law are answered accordingly. 16. In view of the findings returned herinabove, present appeal being devoid of any merit is dismissed, so also the present applications, if any. Substantial questions of law are answered accordingly. 16. In view of the findings returned herinabove, present appeal being devoid of any merit is dismissed, so also the present applications, if any. Interim order, if any, stands vacated. On the request of learned counsel for the respondents/claimants, it is ordered that the amount which has been deposited by the Insurance Company either with the Registry of this Court be released in favour of the respondents/claimants in terms of their shares as determined by learned Commissioner with up-to-date interest.