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2023 DIGILAW 283 (JK)

Hicks Thermometer (I) Ltd. v. Aruna Koul Bhat

2023-07-14

RAJNESH OSWAL

body2023
JUDGMENT : 1. This is an appeal against the award dated 24.12.2018 passed by the Assistant Labour Commissioner, Jammu (hereinafter to be referred as "the Commissioner") under the Employees Compensation Act, 1923, by virtue of which the appellant has been directed to deposit an amount of Rs.9,74,985/- (Rupees Nine Lacs Seventy Four Thousand Nine Hundred Eighty Five Only) within 30 days of the passing of the order. 2. The award has been impugned on the following grounds:- (i) That the deceased was not an employee within 'the meaning of Section 2(dd) read with Schedule II of the Act (Supra). (ii) That the award impugned is perverse as the Commissioner completely ignored the pleadings, facts and relevant material on record. (iii) That no reasonable opportunity of advancing the final arguments was afforded to the appellant. (iv) That the deceased expired while on a private trip to Srinagar and was not on official duty. (v) That the respondent No. 1 submitted her examination in chief by way of an attested affidavit but in her cross examination, she has clearly stated that she never appeared before anyone for attestation of her affidavit. (vi) That the claimants and witness, namely, Kamal Jeet Dhar in their cross examination have admitted that an insurance claim with respect to the accident was paid by the insurance company, which fact was not disclosed in the claim petition. (vii) That the respondent No. 1 in her cross examination has admitted that as per the policy of the company, the deceased was only allowed to travel using the public transport (Bus), as such, there was wilful disobedience of the deceased as per rules issued by the company. The approval of the company to the deceased was the bus travel only but the deceased went in Bolero vehicle. (viii) That the Commissioner has completely ignored the final investigation report, wherein the negligence of the deceased was established. 3. The appellant has proposed the following substantial questions of law:- (i) Whether the award impugned is perverse being passed without considering the material available and placed on record? (ii) Whether an-unattested evidence by way of an affidavit can be treated as valid in the eyes of law? (iii) Whether the award could have been passed without affording the appellant with an opportunity of advancing the final arguments? (ii) Whether an-unattested evidence by way of an affidavit can be treated as valid in the eyes of law? (iii) Whether the award could have been passed without affording the appellant with an opportunity of advancing the final arguments? (iv) Whether after the receipt of compensation from the insurance company, another compensation award can be passed/claimed ? 4. Mr. Vishal Goel, learned counsel for the appellant vehemently argued that there was no relationship of employer and employee between the appellant and the deceased and further that the appellant did not meet with an accident during the course of his employment as he was on a private visit. He further submitted that the deceased was entitled to travel by bus only and assuming that he was on official duty, he could not have travelled in a private Bolero vehicle. Mr. Goel further argued that the vehicle was being plied without registration number and in view of that, the appellant cannot be fastened with any liability under the Act. Mr. Goel further submitted that the interest @12% per annum could not have been imposed upon the appellant. Learned counsel for the appellant has placed reliance upon the judgment of the Hon'ble Supreme Court in case titled, "United India Insurance Co. Ltd. vs. Sushil Kumar Godara", (2021) 14 SCC 519 , and the judgments of this Court in case titled, "Geeta Devi and others vs. Som Nath and another", 2013 (2) J.K.J. 226 and "New India Assurance Co. Ltd. vs. Lal Dei and Ors.", 2013 AAC 2950 . 5. Per contra, Mr. Sanjay K. Dhar, learned counsel appearing for the respondent Nos. 1 to 3/claimants argued that the award has been passed on the basis of evidence led by the parties and the witnesses examined by the appellant, namely, Jai Narayan Tiwari and Narendra Pal Singh have admitted that Sales Executives of the company have to visit the dealers for marketing the products of the company and further the appellant's witness, namely, Narendra Pal Singh has clearly stated that he was not having any knowledge about any order issued by the company before the death of the deceased, whereby he was directed not to deal in Kashmir region. Mr. Dhar further submitted that both these witnesses have admitted the employment of the deceased as Sale Executive/Representative for J&K territory. Mr. Dhar further submitted that both these witnesses have admitted the employment of the deceased as Sale Executive/Representative for J&K territory. He further argued that statutory interest has been awarded by the Commissioner and further that no plea was raised by the appellant during the proceedings before the Commissioner in respect of denial of its liability due to non-registration of the vehicle, as such, the same cannot be raised at this stage. Learned counsel for respondent Nos. 1 to 3 has placed reliance upon the judgments of the Hon'ble Supreme Court in cases titled, "Jaya Biswal & Ors. vs. Branch Manager, IFFCO Tokio General Insurance Company Ltd. & Anr.", 2016 (11) SCC 201 and "North East Karnataka Road Transport Corporation vs. Smt. Sujatha", [2019] Acci.C.R. 96 (S.C.). 6. Heard and perused the record. 7. The facts necessary for disposal of the present appeal are that one Deepak Koul, who was working as Sales Representative w.e.f. 10.03.2012, met with an accident at Battery Chashma National Highway, Ramban while he was driving a Bolero vehicle bearing temporary registration No. 9827/AV and going to attend various customers in Kashmir, as a result of which, he died. The respondent Nos. 1 to 3 filed an application before the Commissioner for grant of compensation. The appellant was put to notice. Initially, the appellant was proceeded ex-parte but later, the ex-parte proceedings were set aside. The appellant filed the response, wherein a plea was taken that the deceased did not die during the discharge of his official duties but he was on a private trip with his friends. During the trip, he caused accident involving use of private vehicle Bolero by driving it in a rash and negligent manner. It was also pleaded that the company had appointed a distributor for Kashmir, who was directly taking care of the company orders for Kashmir, therefore, there was no question of deceased going to Kashmir for any official work. It was also pleaded that the deceased was looking after the work of Rajouri and Poonch only. The appellant admitted that the deceased was having a salary of Rs.6500/- per month. On these grounds only, the claim petition filed by the respondent Nos. 1 to 3 was objected by the appellant. It was also pleaded that the deceased was looking after the work of Rajouri and Poonch only. The appellant admitted that the deceased was having a salary of Rs.6500/- per month. On these grounds only, the claim petition filed by the respondent Nos. 1 to 3 was objected by the appellant. In the objections, no plea was taken by the appellant that the deceased was entitled to travel by bus only during official visit and also that due to non-registration of the vehicle, the appellant is not entitled to make any payment of compensation to the claimants/respondent Nos. 1 to 3. 8. This Court is dealing with an appeal under Section 30 of the Act (supra), which can be maintained only when a substantial question of law is involved in the appeal. The proposed question of law as raised by the appellant at S. No. (ii) is not the substantial question of law as it pertains to appreciation of evidence. The proposed question of law at S. No. (iii) also cannot be termed as substantial question of law as if this court finds that the award passed by the Commissioner is perverse, the same can be set aside by this court. The proposed question of law at S. No. (iv) as to whether the respondent Nos. 1 to 3 had already received compensation but did not mention the same in their petition, in fact does not arise at all. It needs to be noted that the respondent No. 1 has stated in her cross-examination that the vehicle was not registered on the date of accident but was insured. They got claim from the insurance company without any court case for an amount of Rs. 2.5 lacs as compensation, which was paid to her father-in-law as the vehicle was owned by father-in-law i.e. father of the deceased. The witness of the respondents namely - Kamal Jeet Dhar has stated that the vehicle was registered in the name of father of the deceased and insurance claim from the National Insurance Company was received by the father of the deceased. Thus, it is evident that no compensation was received by the respondent Nos. 1 to 3 on account of death of the deceased but father of the deceased had received Rs. 2.5 lacs as compensation for the damage caused to the vehicle. 9. Thus, it is evident that no compensation was received by the respondent Nos. 1 to 3 on account of death of the deceased but father of the deceased had received Rs. 2.5 lacs as compensation for the damage caused to the vehicle. 9. So far as the contentions of the appellant that there was no relationship of employer and employee between the parties and the deceased was on a private visit and not on an official duty are concerned, the same cannot be considered as substantial question of law being factual issues. The para-9 of the judgment of the Hon'ble Supreme Court in case of North East Karnataka Road Transport Corporation (supra) is very relevant. Paragraph 9' of the judgment is reproduced as under:- “9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue/s his employer to claim compensation under the Act.” 10. Now, this Court will examine as to whether there is any perversity in the award or not. From the record, it is evident that the appellant has not been able to prove by leading any cogent evidence that separate distributor for Kashmir was appointed and the deceased was not dealing in the Kashmir region rather the appellant's witnesses, namely, Narendra Pal Singh and Jai Narayan Tiwari have admitted that the deceased was appointed as Sales Executive of the company for territory of J&K.. The appellant's witness, namely, Narendra Pal Singh has admitted that the deceased was appointed as Sales Executive for J&K territory and he further admitted that Sales Executive of the company has to visit the dealers for marketing the products of the company. He expressed ignorance with regard to appointment of dealer at Srinagar. He also expressed ignorance to any order issued by the company before death of the deceased, whereby he was directed not to deal in Kashmir region. Similarly, PW-Jai Narayan Tiwari stated that he did not remember the name of the dealer appointed in Srinagar. The plea of the appellant that the deceased was entitled to travel in a bus only, also does not arise from the pleadings of the parties. Though the reference of the same in the evidence has been made. In the statements of the two witnesses examined by the appellant, there is no whisper that the deceased was entitled to travel by bus only. The appellant cannot take advantage of passing reference in the cross-examination of the respondent No. 1 in respect of the deceased travelling to Rajouri by bus, more particularly, when she has stated only bus travel was approved by the company and for all official visits, the company used to pay fare of bus. The whole statement of witness is required to be read and not a particular sentence and that too out of context. A perusal of the statement of the respondent No. 1 reveals that the appellant approved the bus fare only. The other contention raised by the appellant that once the vehicle was not registered so the appellant cannot be held liable, was not pleaded by the appellant in its reply to the application for compensation filed by the respondent Nos. 1-3. A perusal of the judgment in case United India Insurance Co. Ltd. v. Sushil Kumar Godara (supra) reliance whereupon has been placed by Mr. Goel, would reveal that the dispute was between the owner of the vehicle and the Insurance Company and because of violation of the condition of the policy, the insurance company was not held liable. The relevant portion of the judgment is extracted as under : “14. In the present case, the temporary registration of the respondent's vehicle had expired on 28-7-2011. The relevant portion of the judgment is extracted as under : “14. In the present case, the temporary registration of the respondent's vehicle had expired on 28-7-2011. Not only was the vehicle driven, but also taken to another city, where it was stationed overnight in a place other than the respondent's premises. There is nothing on record to suggest that the respondent had applied for registration or that he was awaiting registration. In these circumstances, the ratio of Narinder Singh was in the context of an accident, is immaterial. Despite this, the respondent plied his vehicle and took it to Jodhpur, where the theft took place. It is of no consequence, that the car was not plying on the road, when it was stolen; the material fact is that concededly, it was driven to the place from where it was stolen, after the expiry of temporary registration. But for its theft, the respondent would have driven back the vehicle. What is important is this Court's opinion of the law, that when an insurable incident that potentially results in liability occurs, there should be no fundamental breach of the conditions contained in the contract of insurance. Therefore, on the date of theft, the vehicle had been driven/used without a valid registration, amounting to a clear violation of Sections 39 and 192 of the Motor Vehicles Act, This results in a fundamental breach of the terms and conditions of the policy, as held by this Court in Narinder Singh, entitling the insurer to repudiate the policy.” The judgment (supra) is not applicable in the present facts and circumstances of the case. 11. It was also urged by Mr. Goel that interest @12% per annum cannot be granted. He placed reliance upon the judgments of this Court in cases titled, "Geeta Devi and others vs. Som Nath and another" and "New India Assurance Co. Ltd. vs. Lal Dei and Ors." (supra). A perusal of the both the judgments reveal that there is no discussion in respect of rate of interest payable to the claimants except awarding the interest at the rate 6% and 7% per annum. Both the judgments have not laid down any ratio in respect of rate of interest payable to the claimants under the Act(supra) but in terms of sub-section-3(a) of Section 4A of the Act (supra), simple interest @12% per annum is payable from the date of incident. Both the judgments have not laid down any ratio in respect of rate of interest payable to the claimants under the Act(supra) but in terms of sub-section-3(a) of Section 4A of the Act (supra), simple interest @12% per annum is payable from the date of incident. Reliance is placed upon the judgment of the Hon'ble Apex Court in case titled, "Shobha & Ors. vs. The Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana Ltd. & Ors.", 2022 AIR(SC) 1410. It was further contended by Mr. Goel that the deceased died because of his own negligence therefore, the appellant cannot be held responsible for compensating the legal representatives of the deceased. This contention of the appellant is taken note of for the purpose of rejection only as, in "Jaya Biswal & Ors. vs. Branch Manager, IFFCO Tokio General Insurance Company Ltd. & Anr." (supra), the Hon'ble Apex Court has held that section 3 of E.C Act does not create any exception of the kind, which permits the employer to avoid his liability if there was negligence on the part of workman. In view of the above, this Court does not find any perversity in the award impugned and rather the award has been passed on the basis of evidence brought on record by the parties. 12. Viewed thus, there is no merit in the present appeal, as such, the same is dismissed.