THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
CIVIL MISCELLANEOUS APPEAL NO.165 OF 2007
JUDGMENT
This Civil Miscellaneous Appeal has been filed by Opposite Party No.2-insurance company challenging the Award of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Patancheru at Ramachandrapuram in W.C. No.6 of 2004 dt.20.10.2006.
2. The appellant insurance company is challenging the award on the ground that the deceased auto driver was only holding a licence authorising him to drive a non-transport vehicle and he was not authorised to drive an auto (transport) and as such the Commissioner has erred in entertaining the application and awarding compensation to the applicants. It was also submitted that the Commissioner has failed to see that the auto was overloaded with 10 persons at the time of the accident as against the permitted seating capacity of 4 in all and therefore the owner of the vehicle has violated the terms and conditions of the policy and therefore, the insurance company is not liable to pay any compensation. It is further submitted that the owner of the vehicle did not appear nor did he admit that the deceased was his driver. Thus, according to the insurance company, the employer 2 and employee relationship is not established. Therefore, according to the learned counsel for the appellant, Sri A. Ramakrishna Reddy, the awarding of compensation is not in accordance with law and is not supported by any documentary evidence.
3. The learned counsel for respondents 1 to 5/applicants, Sri K. Rathangapani Reddy, submitted that the deceased was having a valid driving licence and therefore was entitled to drive transport vehicle of the same category and that this issue is covered by a decision of the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited1. As regards the violation of the policy conditions by permitting 10 persons to travel in the auto, it was submitted that the deceased was only a driver of the auto and the owner of the vehicle was answerable to the insurance company for the violations, if any.
4. Having regard to the rival contentions and the material placed on record, this Court finds that the Opposite Party No.1 being the owner of the vehicle and also the vehicle being involved in the accident are not in doubt. The fact that the owner of the vehicle did not appear only goes to give an impression that he is not denying the employer and employee relationship as claimed by the applicants. 1 (2017) 14 SCC 663 3 Therefore, the only other question is whether the licence held by the deceased permitted him to drive the subject auto.
5. In the decision of the Hon'ble Apex Court in Mukund Dewangan (1 supra), it was held that as long as the driver possesses a licence to drive a category of vehicles, he is eligible for driving a transport vehicle of the same category and therefore, he is entitled to compensation in case of an accident as rightly awarded by the Commissioner.
6. As far as the countention of the appellant that by permitting more than 4 persons to travel in the auto at the time of the accident and thereby violating the conditions of the policy and consequently, the insurance company not being liable to pay the compensation is concerned, the Commissioner has given a finding that the accident has occurred due to rash and negligent driving by the driver in the opposite vehicle and over seating of passengers is not the cause of accident. This finding of the Commisisosner is not rebutted or challenged by the appellant. Further, the Commissioner has held both Opposite Party No.1 and Opposite Party No.2 to be jointly and severally liable to pay the compensation. Therefore, this Court does not find any reason to interfere with the awrd.
7. Accordingly, the Civil Miscellaneous Appeal filed by the insurance company is dismissed. No order as to costs. 4
8. Pending miscellaneous petitions, if any, in this CMA shall also stand dismissed.
___________________________ JUSTICE P. MADHAVI DEVI Dt. .11.2021 Svv