M.F.A.NO.3926/2011
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.3926/2011(WC)
BETWEEN:
THE NATIONAL INSURANCE COMPANY
LIMITED, DIVISIONAL OFFICE
REGIONAL OFFICE
NO.144, SHUBRAHAM COMPLEX
M.G.ROAD, BANGALORE - 560 001
REPRESENTED BY IT'S ADMINISTRATIVE
OFFICER KHAJ PASHA ... APPELLANT
(BY SRI.L.SREEKANTA RAO, ADV.)
AND:
1. D.C.SHANKARAPPA
S/O LATE CHANDRE GOWDA
AGED ABOUT 48 YEARS
2. KANTHA MANI
W/O D.C.SHANKARAPPA
AGED ABOUT 41 YEARS
3. SOMASHEKAR
S/O.D.C.SHANKARAPPA
AGED ABOUT 25 YEARS
RESPONDENT 1 TO 3 RESIDING AT
NO.48, PEENYA SECOND STAGE
HOTEL KUMAR BUILDING
NELAGEDARANAHALLI
NAGASANDRA POST
BANGALORE
4. B.H.PALAKSHA
S/O HULEGOWDA
M.F.A.NO.3926/2011
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HONNASOMMANAHALLI
HALLABEEDU HOBLI
BELLUR TALUK,
HASSAN DISTRICT ... RESPONDENTS
(BY SRI.K.N.HARISH BABU AND ASSOCIATES, ADVOCATE
FOR R1 TO R3; NOTICE TO R4 IS HELD SUFFICIENT
V/O DTD:16.06.2014)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C.
ACT AGAINST THE JUDGMENT DATED 05.01.2010 PASSED IN
WCA/FC/CR-39/2008 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN'S COMPENSATION,
SUB DIVISION-1, BANGALORE, AWARDING A
COMPENSATION OF RS.4,36,940/- WITH INTEREST @ 12%
P.A.
THIS MFA COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT THROUGH PHYSICAL HEARING
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal of the Insurer arises out of the award dated 05.01.2010 in WCA/FC/CR-39/2008 passed by the Workmen's Compensation Commissioner, Sub- Division-1 Bengaluru. By the impugned award the Commissioner has awarded compensation of Rs.4,36,940/- under the Workmen's Compensation Act to respondent Nos.1 to 3 due to the death of one Pradeep.
2. Before the Commissioner, respondent Nos.1 to 3 were the claimants. Respondent No.4 was the first M.F.A.NO.3926/2011 3 M respondent and the appellant was the second respondent. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the Commissioner.
3. Claimant Nos.1 and 2 are the parents. Claimant No.3 is the major brother of deceased Pradeep. On 14.01.2008 at 10.30 p.m. when Pradeep was driving the auto bearing No.KA-46-1155 that met with an accident near Chikkonahalli gate, Channarayapatna Taluk, Hassan District. In the accident, Pradeep died and two others were injured. Regarding the accident, Takeem Pasha inmate of the vehicle filed complaint before Hirisave Police of Hassan District.
4. On the basis of the said complaint, Hirisave Police registered the case in Crime No.5/2008 as per Ex.P1. On investigation, Hirisave Police charge-sheeted Pradeep for the offences punishable under Sections 279, 338 and 304A of IPC. The first respondent was the registered owner of goods auto bearing No.KA-46-1155.
M.F.A.NO.3926/2011 4 M During the said period, the said autorickshaw was insured with the second respondent. The Insurance policy covered the risk of the driver.
5. The claimants filed claim petition under Section 3 of the Workmen's Compensation Act, 1923 ('the Act' for short) before the Commissioner contending that the deceased Pradeep was working under the first respondent as driver in the said goods autorickshaw. They further claimed that the accident and death arose out of and during the course of employment. They were dependents of the deceased and thus claimed compensation of Rs.10,00,000/-. They further claimed that the second respondent being the Insurer was liable to indemnify the damages.
6. The first respondent despite service did not appear before the Commissioner and contest the matter. The second respondent alone contested the matter denying the jural relationship of employer and employee, occurrence of the accident and death during the course of employment and dependency of the M.F.A.NO.3926/2011 5 M claimants. The second respondent further contended that at the time of the accident, Pradeep was not holding valid driving licence, therefore, it was not liable to indemnify the damages as there was breach of policy condition.
7. The parties adduced evidence. The Commissioner on hearing the parties by the impugned award held that the accident arose out of and during the course of employment and the claimants were the dependents of the deceased. The commissioner further held that respondent No.1 employed the deceased on wages of Rs.4,000/- p.m. and limited that to Rs.2,000/- having regard to Section 4(1) of the Act, applied 218.47 factor and awarded the compensation of Rs.4,36,940/-. The Commissioner further held that the second respondent has failed to prove that Pradeep was not holding valid driving license and thus fastened the liability to the second respondent.
8. Aggrieved by the said award, the second respondent has preferred the above appeal. This Court M.F.A.NO.3926/2011 6 M admitted the appeal to consider the following substantial question of law:
"In the absence of any evidence that deceased - Pradeep was holding driving license to drive the vehicle in question, whether the Commissioner was justified in fastening the liability to the appellant/Insurer?"
9. Sri L.Sreekanta Rao, learned counsel for the Insurer submits that the claimants failed to produce the driving licence of the deceased to show that as on the date of the accident he was holding valid driving license. He further submits that the Insurer cannot be called upon to prove a negative fact that he was not holding a valid driving licence, therefore, the Commissioner was in error in fastening the liability to the Insurer.
In support of his contention he relies upon the judgment of the Hon'ble Supreme Court in Beliram vs. Rajinder Kumar1.
1 2020 SCC On line SC 769 M.F.A.NO.3926/2011 7 M
10. Per contra, Sri K.N.Harish Babu, learned counsel for the claimants submits that when the Insurer claimed that victim was not holding valid driving licence, the burden was on it to prove the said defence. He further submits that Pradeep was not charge sheeted for driving the vehicle without license and even the FIR was not registered for such offence, therefore it was clear that he was having driving licence at the time of the accident. He further submits that even assuming that the claimants were not able to prove that the deceased was holding a driving licence as on the date of the accident, the Insurer has to indemnify the damages and recover the same from the first respondent-employer.
In support of his contention, he relies upon the following judgments of the Hon'ble Supreme Court:
i) Gurmail Singh vs. Bajaj Allianz General Insurance Co.Ltd and another2
ii) Pappu and others vs. Vinod Kumar Lamba and another3 2 2019 ACJ 713 3 AIR 2018 SC 592 M.F.A.NO.3926/2011 8 M
11. It is no doubt true that respondent No.1 did not file any objection denying the jural relationship and occurrence of the accident when Pradeep was driving the vehicle. There was no dispute that the vehicle in question belonged to respondent No.1. Under such circumstances the Commissioner held that the first respondent had authorized Pradeep to drive the vehicle at the time of the accident as driver. Admittedly, the Insurance Policy covered the risk of the driver.
12. Then the only question was whether at the time of accident the deceased Pradeep was holding driving licence to drive the vehicle. To claim the benefit of the Insurance, the burden was on the first respondent to show that he had employed a person having a valid driving license. But, he did not discharge the said burden. Though learned counsel for the claimants' contends that it was for the Insurer to prove that the deceased was not holding valid driving license, when the claimants come to the Court, initial burden was on them to show that Pradeep was holding valid M.F.A.NO.3926/2011 9 M driving licence. The Insurer cannot be expected to prove a negative fact.
13. In Beliram's case it was affirmatively held that at the time of the accident, the workman was not holding a valid driving license. But, in the case on hand, as the charge sheet was not filed against the deceased for driving the vehicle without license, it cannot be finally concluded that he was driving the vehicle without the driving license. The Workmen's Compensation Act being a beneficial and social legislation, the dependents of the workman shall not be deprived of the relief for the failure of the Insurer or the employer to prove a fact conclusively. At the same time, for the lapse on the part of the Insured, the Insurer shall also not be penalized as the funds of the Insurance company are the public funds.
14. In the judgment in Pappu's case, it was held that even in case of failure of the claimants to prove the fact of driver holding a driving license, the Insurer has to indemnify the damages and recover the same M.F.A.NO.3926/2011 10 M from the Insured. That view was upheld by another judgment of the Hon'ble Supreme Court in Gurmail Singh's case which involved the case under the Workmen's Compensation Act.
15. In Beliram's case the judgments in Pappu's case and Gurumail Singh's case were not referred. Para-9 of the said judgment indicates that the counsel representing the parties in Beliram's case represented before the Court that there was no direct judgment on the point. Therefore it appears the judgment in Pappu's case and Gurumail Singh's case did not fall for consideration of the Hon'ble Supreme Court in Beliram's case.
16. Under such circumstances, this Court is persuaded to hold that the judgment in Pappu's case is applicable. Even in the absence of direct evidence in proof of Pradeep holding valid driving licence, the Insurer shall have to pay the compensation to the claimants and recover the same from the Insured.
M.F.A.NO.3926/2011 11 M Answering the substantial question of law accordingly the appeal is partly allowed. The impugned award of the Commissioner is modified as follows:
The appellant-Insurer shall pay the compensation awarded by the Commissioner to the claimants and recover the same from the Insured. The Insurer can recover the damages given to the claimants in the same proceedings before the Commissioner.
The amount in deposit shall be transmitted to the jurisdictional Commissioner/Court.
Sd/-
JUDGE akc