HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 988 of 2015 Appellant :- National Insurance Co. Ltd. Respondent :- Rais And Anr. Counsel for Appellant :- Anand Kumar Sinha Hon'ble Krishna Murari,J.
Hon'ble Pratyush Kumar,J.
This appeal is directed against the judgment and award dated 26.2.2015 passed by Workmen Compensation Commissioner/Deputy Labour Commissioner, Moradabad Region, Moradabad in Case No.E.C.A. 70 of 2013, Rais Vs. National Insurance Company Ltd. and others.
Heard Shri Anand Kumar Sinha, learned counsel for the appellant.
The impugned judgment and order have been assailed on the grounds that (i) there was no relationship of employer and employee between the deceased and respondent no.2/owner of the vehicle; (ii) at the relevant time the deceased had no valid driving licence. He has been erroneously held to be a driver, which the law does not permit; (iii) accident, wherein the deceased died, not arose out of the use of the said vehicle and (iv) accident, which resulted in the death of the deceased, had no nexus with his duty as employee, therefore, the death is not in the course of the employment.
Before appreciating these grounds, we would like briefly to place on record the facts of the matter. Respondent no.1 moved an application under section 30 of the Workmen's Compensation Act, 1923 against respondent no.2, owner of vehicle no.UP14F-0742 and the present appellant with the averments that his son Asif was working as driver on the said truck under the employment of respondent no.2. The vehicle was insured with the appellant. On 24.6.2010 on the direction of the respondent no.2 his son had gone to get some mechanical work in the said vehicle for which he was bringing some spares from the shop. On his way back he was hit by a motorcycle. He sustained serious injuries and hospitalized in the District Hospital, Sambhal. From there he was referred for better treatment to Moradabad, thereafter to Delhi, on 5.7.2010 he died. Age of the deceased was 29 years. He was getting Rs.8,000/- as salary per month and Rs.50/- as daily diet.
On behalf of the appellant and respondent no.2 written statements were filed. Respondent no.2 admitted that the deceased was under his employment. He was getting Rs.7,500/- pay. Vehicle was insured with the appellant.
The appellant had denied the averments made in the application in its written statement and pleaded that the deceased did not sustain injuries in the alleged accident. He had no valid driving licence. The application is barred by Section 10 of the Workmen's Compensation Act. On the basis of the pleadings of the parties, six issues were framed. Parties were provided opportunity to adduce evidence, oral and documentary both. The learned Commissioner after discussing the evidence has concluded that (a) it is true that the deceased was under the employment of respondent no.2 at the time of the accident; (b) the deceased was employed as a driver by respondent no.2; (c) the vehicle UP14F-0742 was insured with the appellant. Its papers were valid; (d) income of the deceased was held to be Rs.5,000/- and his age was held to be 33 years. After subtractions and multiplications Rs.5,26,650/- were determined as compensation payable by the appellant and respondent no.2. Appellant was directed to pay the amount along with 12% interest.
According to learned counsel for the appellant, driving licence of the deceased was valid only up to 4.6.2010. According to him, it was renewed from 3.7.2010 to 2.7.2013. The accident had occurred on 24.6.2010. On that date he had no valid and operative driving licence.
The argument of the appellant is based upon an entry in form no.54. The entry in this document also reveals that the driving licence of the deceased was renewed within 30 days. Section 15(1) and its first proviso provides that in such cases the driving licence will be deemed to have been renewed with effect from the date of its expiry. The relevant provisions are quoted as below:-
"15.Renewal of driving licences:-(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:
Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:
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There remains no legal impediment for Asif to be employed as driver on the fatal day. The respondent no.2, owner of the vehicle has admitted this fact that the deceased was his employee on the date of the accident, therefore, two grounds raised by the appellant are found without substance.
Learned counsel for the appellant has argued that the accident wherein the deceased sustained injuries and died as a result therefrom did not arise from the use of said vehicle. According to him, even if the averments made in the application are taken to be true on their face value, even then in the accident vehicle of the respondent no.2 was not involved. This is a mixed question of fact and law.
According to respondent no.1 when the accident took place, the deceased acting on the instructions of the respondent no.2 had gone to get some mechanical work in the vehicle of respondent no.2 and for this purpose he was bringing some spares from the shop and was returning to the repairer when he met with an accident.
Here, the question arises whether these combination of facts constitute use of vehicle of respondent no.2 or not. In the case of Harijan Mangri Siddakka Vs. Oriental Insurance Company Ltd., (2008) 16 SCC 115 the similar question arose before the Hon'ble Apex Court. In that case, deceased persons were employed as workmen/labourers in a tractor and trailer combination, when the trailer was being loaded with mud, a huge quantity of mud had collapsed from the quarry smothering the workman to death. The Commissioner held that accident had taken place during and in the course of employment and since the vehicle had been used for the purpose of loading, the Insurance Company was liable to indemnify the award. When the matter reached before the Hon'ble Apex Court, it was contended before the Hon'ble Apex Court that stand of the Insurer was not correct that there was no use of vehicle at the time of accident even though the death occurred at a place away from the vehicle. The Hon'ble Apex Court in this case has observed that in absence of discussion on the factual scenario, no straight jacket formula can be applied, therefore, matter was remanded back for the High Court to decide afresh.
This question has also arisen before the Karnataka High Court in the case of National Insurance Co. Ltd. Vs. Balawwa, II (1993) ACC 463. In para 4 of the judgment the Karnataka High Court had noticed the contentions of the claimant, which are quoted as below:-
"4. The petitioner claimed compensation before the Commissioner on the allegations that her husband was employed as a coolie on the Tractor owned by Respondents 1 and 2, who are brothers; that when he was unloading stones from the tractor on 8.8.1990 at about 11-30 A.M. he went to pass urine near by; that he suddenly fell and started vomiting; that he was taken to the hospital at Konnur for treatment bull he expired there; and that as her husband died during the course of employment she was entitled to compensation. According to her, the deceased was getting daily, wages of Rs. 50/- and she was therefore entitled to compensation of Rs. 1,00,000/- apart from 50% by way of penalty and Rs. 5,000/- by way of interest."
In paras 25 to 29, the Karnataka High Court as concluded the following:-
"25. It is undisputed that the policy covers liability of the insured under the Workmen's Compensation Act in respect of death of an employee carried in the vehicle arising on account of and in the course of his employment. The main objection is that it must be shown that the death arose out of the use of the motor vehicle.
26. In SHIVAJI DAYANU PAUL AND ANR. v. SMT. VATSCHALA UTTAM MORE, the Supreme Court1 has considered the meaning to be attached to the expression 'use of a motor vehicle' and has held as hereunder:
"The expression "use of a motor vehicle" in Section 92A covers accidents which occur both when the vehicle is in motion and when it is stationary. Petrol tanker in question while proceeding along National Highway (i.e., while in use) after colliding with a motor lorry was lying on the side and it cannot be claimed that after the collision the use of the tanker had ceased only because it was disabled. The word "use" has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a break-down or mechanical defect or accident, In the circumstances, it cannot be said that petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck".
With regard to the meaning to be attached to the expression "arising out of" the Supreme Court has held as hereunder:
"As compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Section 95(1) 9b)(i) and (ii) and Section 96(2)(b)(ii) of the Act. In Section 92A, Parliament, however, chose to use the expression "arising out of which indicates that for the purpose of awarding compensation under Section 92A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in Section 92A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment. In the instant case the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on sloping ground resulting in escape of highly inflamable petrol and that there was great risk of explosion and fire from the petrol - coming out of the tanker. In these circumstances it could be said that the collision between the tanker and the other vehicle which had occurred earlier to the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no casual relation between explosion and fire. Therefore, the explosion and fire resulting in the injuries which led to the death of deceased was due to an accident arising out of the use of the motor vehicle viz., the petrol tanker".
27. In view of the above Decision, it is clear that in order to prove that the death or injury was caused by the user of the motor vehicle it is not necessary to prove that the use of the vehicle was the direct or proximate cause for the death or injury. Even a casual connection is sufficient.
28. It may be noted that the Proviso to Sub-section (1) of Section 147 provides for compulsory insurance in favour of only three classes of employees, namely, employee engaged in driving the vehicle; an employee engaged as a conductor or in examining the tickets in a public service vehicle and an employee carried in a goods carriage, who sustain injury or die out of and in the course of their employment. The work of the three classes of employees is connected with the use of the motor vehicle. As such when once it is found that such an employee died on account of and in the course of his employment, it must necessarily follow that there is nexus between the death and the use of the motor vehicle. It is for that reason that insurance in respect of only those classes of employees in so far as the liability under the Workmen's Compensation Act is connected, is made compulsory. In respect of such employees if it is found that they died or sustained injury in an accident on account of and in the course of their employment, the insurer becomes liable under the Workman's Compensation Act, without further proof of rash or negligent use of the vehicle. But without proof of rash or negligent or wrongful use of the vehicle, the said employee cannot seek compensation before the Motor Accidents Claims Tribunal, as that Tribunal has jurisdiction to award compensation only if rash or negligent or wrongful use of the vehicle is established, unless the claim is under Section 140 of the Motor Vehicles Act.
29. In the present case, it is admitted by the insured that the deceased had been employed by him to work on the tractor and that his work was to go in the tractor for purposes of loading and unloading. Even on the day he had gone on the tractor for that work. Even the terms of the policy clearly show that loading and unloading would amount to use of the vehicle. The deceased would come under the category of "employees carried on the goods vehicle". It is found that the deceased has suffered heart attack on account of loading stones to the truck. As loading the vehicle is one of uses of the vehicle, it follows that the death has been caused by the user of the vehicle. There is a casual connection between the death of the employee and the use of the vehicle. Hence the Insurance Company is liable to pay the compensation payable under the Workman's Compensation Act. Hence there are no good grounds to interfere with the order of the Commissioner directing the Insurer to pay the compensation."
The facts of the present case are on much better footing. The deceased was employed as a driver. He was instructed to get some mechanical work done on the vehicle. For this purpose he was fetching some spares when he was hit by a motorcycle and died from injuries sustained in the said accident. There is casual connection between the vehicle and accident resulting in the death of the deceased.
On behalf of the appellant the case of Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Co. Ltd. and another, 2009 (2) TAC 17 (SC) has been cited by the learned counsel for the appellant to fortify his argument that accident did not take place in the course of employment. Facts of that case were quite different. In that case the deceased was detailed to take such passengers to Gurugunta Amreshwara Temple by the employer. When the vehicle reached Gurugunta, the deceased went to the pond and while taking bath at a pit, he had slipped, fell down and as a result of drowning died. In para 19 of the judgment the Hon'ble Apex Court has held that it was not a case of accident in the course of employment. Para 19 of the judgment is quoted hereinunder:-
"19. It is the specific case of the claimants that on 30th November, 2000 the deceased who was driving the vehicle on the direction of the insured had gone to Gurugunta from Siraguppa. There he had gone to a temple and was sitting on the steps of the pond in the temple and he slipped and fell into the water and died due to drowning. This according to us is not sufficient in view of the legal principles delineated above to fasten liability on either the insurer or the insured. The High Court was not justified in holding that the present appellant was liable to pay compensation."
In view of the different factual scenario the legal proposition by the appellant's side does not support the argument of the appellant.
The factual findings recorded by us and legal propositions discussed hereinabove make the other two arguments advanced by learned counsel for the appellant devoid of any merit.
In the written statement on behalf of the appellant a plea has been raised that application of the respondent no.1 is barred by Section 10 of the Workmen's Compensation Act, 1923 for want of statutory notice. A Workman, who is injured in accident, is duty bound to give a notice of it informing in writing without delay to the employer. The object of giving such notice appears to enable the employer to verify the accident and its nexus with the course of his employment, however, no claim for compensation will be rejected in case of accident resulted in the death of the workman in the premises of the employer or within his control or the employer had knowledge of the accident from any other source. Thus, there is no hard and fast rule about the compliance of Section 10 of the Workmen's Compensation Act, 1923, which may render the claim not maintainable.
In the present case, the employer has not opposed the claim on the basis of want of notice. The Insurance Company has no locus to raise this plea. Moreover, in the application for compensation in para 11 specific plea has been mentioned that respondent no.1 had the knowledge of the accident, which resulted in the death of the deceased Mohd. Asif. For this reason there was no need to give notice under section 10 of the Workmen's Compensation Act, 1923. This plea has not been controverted by the respondent no.1, who is the employer. In this background, we are of the opinion that in the present case the Commissioner has rightly waived the condition of notice and on this account no fault can be found in the impugned judgment and order.
No other argument had been raised on behalf of the appellant. We are of the opinion that the impugned judgment and order suffers no factual or legal infirmity and it requires no interference.
The appeal is dismissed in limine.
Order Date :- 22.4.2015 T. Sinha