THE HON'BLE Dr. JUSTICE G. RADHA RANI
CIVIL MISCELLANEOUS APPEAL No. 4769 of 2004
JUDGMENT:
This appeal is filed by the Insurer against the order dated 28.04.2004 passed in W.C. No.159 of 2003 by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-III, Hyderabad (for short 'Commissioner').
2. The parties are hereinafter referred to as they were arrayed before the Commissioner.
3. The family members of the deceased workman filed the application before the Commissioner claiming compensation of Rs.4,00,000/- contending that the deceased was an employee working as a lorry driver in the employment of the Opposite Party No.1 on the lorry bearing No.AP 9X 3002 and on 16.10.2003 while he was proceeding on the said lorry, carrying sand, travelling from Kurnool to Hyderabad on NH-7 and when reached near Malle Bowenpally village, stopped the lorry to attend the nature call and while trying to cross-over the road, an unknown vehicle dashed against him and he died on the spot.
4. The Opposite Party No.1 remained exparte. The Opposite Party No.2 i.e. appellant herein did not admit that the deceased was a driver, employed by the Opposite Party No.1 and that he was holding Dr.GRR,J 2 CMA No.4769 of 2004 valid and subsisting driving licence and that the accident occurred during the course of employment.
5. The wife of the deceased was examined as AW.1 and she stated that her husband was employed with the Opposite Party No.1 and the driving licence of her husband was lost in the accident. No evidence was adduced by the appellant - Opposite Party No.2, except filing the Insurance policy.
6. On considering the oral and documentary evidence on record, the Commissioner held that there was nothing to disbelieve that the deceased was not employed by the Opposite Party No.1 as a lorry driver and there was nothing to prove that the deceased was not having a valid driving licence. Considering the documents marked as Exs.A.1 to A2, certified copy of the FIR and the Inquest Report, as the occupation of the deceased was mentioned as a driver of the lorry, the Commissioner believed the employment of the deceased as the driver and considering the evidence of AW.1, wherein she stated that the deceased lost driving licence in the accident, the Commissioner assumed that the deceased had a driving licence at the time of the accident. He also relied upon the judgment of the Hon'ble Apex Court in National Insurance Company Limited v. Swaran Singh and Ors.,1 on the aspect that the burden would lie on the Insurance company to prove that the driver was not having a valid driving licence at the time of accident and the Insured was guilty of 1 (2004 (2) ALD 36 Dr.GRR,J 3 CMA No.4769 of 2004 negligence in allowing the vehicle in use by an unlicensed driver and the Insurance Company could not avoid its liability unless the breach of conditions of policy by the driver was so fundamental as to the cause of the accident. He awarded a compensation of Rs.3,65,791/- to be jointly and severally paid by the Opposite Parties No.1 and 2 to the applicants.
7. Challenging the same, the Opposite Party No.2 i.e. Insurance company filed this appeal contending that the compensation could not have been awarded by the Commissioner when there was gross violation of the policy conditions. He further contended that the deceased was not fit to be a driver without driving licence and the Commissioner ought to have considered that the deceased was not a workman and ought to have dismissed the claim.
8. Heard the learned counsel for the appellant and the learned counsel for the respondents-claimants.
9. Now the point for consideration is whether the judgment of the Commissioner was contrary to law and probabilities of the case and was liable to be set aside?
10. On perusal of the record, it would disclose that the Commissioner believed that the deceased was employed as a driver on the lorry basing upon the evidence of AW.1 and EXs.A1 and A2. No contra evidence was adduced by the Opposite Parties No.1 and 2. The Opposite PartyNo.1 remained exparte and did not choose to contest Dr.GRR,J 4 CMA No.4769 of 2004 the case. The Opposite Party No.2 had not summoned the Opposite Party No.1 nor adduced anything in the cross-examination of AW.1 to believe that the deceased was not employed by the Opposite party No.1 nor was he holding a valid driving licence at the time of the accident.
11. Learned counsel for the appellant contended that the Commissioner placing reliance on the judgment of the Hon'ble Apex Court in the case of Swaran Singh (1 supra) was not correct as the said case was pertaining to the Motor Vehicles Act, but not under the Workmen's compensation Act, the burden would lie on the workman in Workmen's Compensation Act to prove that he was employed by the employer and the Commissioner wrongly placed the burden on the Insurance company.
12. Learned counsel for the respondents-claimants, on the other hand, contended that there was no bar to apply the case of Swaran Singh to the cases under Workmen's Compensation Act. He relied upon the judgment of a Division Bench of the High Court of Kerala in Oriental Insurance Company Limited, represented by its Assistant Manager v. Jimmy S/o.Joseph and Manoj S/o.Narayana2 which was delivered under Workmen's Compensation Act, wherein it was held in paragraph-3 that "the employer and employee relationship cannot be disputed by the appellant. The accident also is not disputed. In such circumstances, whether the 2 2003 LawSuit(Ker) 296 Dr.GRR,J 5 CMA No.4769 of 2004 workman did have a proper licence or not, whether he is a Wireman, a Boiler Operator or Driver as the case may be, is not a matter for the concern of the insurer. When the insurer had undertaken the liability that had fallen upon the insured, necessarily the insurer has to discharge that burden. If there is violation of the policy conditions, the insurer can seek appropriate remedy." He also relied upon the judgment of a Division Bench of High Court of Kerala in United India Insurance Company Limited v. Annakutty3, which was also under the Workmen's compensation Act, wherein in paragraph - 3, it was held as follows:
"It is an admitted case that the deceased workman was an employee of the insured and that the accident occurred while he was driving the jeep and the accident resulted in his death. It was on 28.3.2002. When the accident has resulted in the death of the workman, necessarily clause (b)(ii) of the proviso to Section 3(1) of the Act will have no application. Wilful disobedience of an order or rule expressly framed for the purpose of securing such safety like the insistence of a driving licence will have bearing going by the said provision, only in respect of any injury not resulting in the death of the workman. Necessarily even if there was any contravention of the provisions of law, the compensation shall have to be paid by the employer wherever death occurs as a result of the accident. When there was a valid insurance policy, that liability shall be on the insurer. Therefore absence of driving licence cannot be taken as a reason to deny the compensation, in case like this where the accident resulted, admittedly in the death of the workman."
13. A perusal of the judgment in Swaran Singh's case (1 supra), it would disclose that the Hon'ble Apex Court held that the breach of policy condition e.g., disqualification of driver or invalid 3 2005 LawSuit(Ker) 280 Dr.GRR,J 6 CMA No.4769 of 2004 driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy Dr.GRR,J 7 CMA No.4769 of 2004 conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.
14. The contention of the learned counsel for the appellant that the said judgment is not applicable to the Workmen's Compensation Act is not considered valid. Though it was given under the Motor Vehicles Act, it is equally applicable to the Workmen's Compensation Act. The Insurer could not avoid his liability towards the insured unless he proves that the breach was so fundamental to have contributed to the cause of the accident. The deceased was not driving the vehicle at the time of the accident, but was crossing the road to attend the nature call by stopping his lorry. As such, the policy conditions regarding driver not holding driving licence at the time of accident cannot be considered as fundamental breach that had contributed to the cause of the accident, so as to discharge the appellant from the liability. The above judgment also discloses that the absence of the driving licence cannot be a reason to deny the compensation when there was a valid insurance policy. As such, it is considered that the Commissioner had not committed any error in passing the award holding the Opposite Parties jointly and severally liable to pay compensation to the applicants. The order of the Commissioner was not contrary to law or probabilities of the case and was not liable to be set aside. Hence, I do not find any merits in the appeal and therefore, the same is liable to be dismissed.
Dr.GRR,J 8 CMA No.4769 of 2004
15. Accordingly, the Appeal is dismissed confirming the order dated 28.04.2004 passed in W.C. No.159 of 2003 by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-III, Hyderabad. There shall be no order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J October 27, 2021 KTL