Allahabad High Court
Oriental Insurance Co Ltd vs Smt Kalloo And Others on 6 January, 2023
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
Court No. - 44
Case :- FIRST APPEAL FROM ORDER No. - 637 of 2005
Appellant :- Oriental Insurance Co Ltd
Respondent :- Smt Kalloo And Others
Counsel for Appellant :- Mithilesh Kumar Tiwari
Counsel for Respondent :- Achintya Kumar
And
Case :- FIRST APPEAL FROM ORDER No. - 643 of 2005
Appellant :- Oriental Insurance Co Ltd
Respondent :- Rizwan And Another
Counsel for Appellant :- Mithilesh Kumar Tiwari
Counsel for Respondent :- Komal Mehrotra
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Shri Mithilesh Kumar Tiwari, learned counsel appearing for the appellant and Shri Achintya Kumar, learned counsel for the respondents-original claimants. None appeared for the owner.
2. Both these appeals arise out of same incident in which one person had died and one person sustained injuries. First Appeal From Order No. 637 of 2005 arises from claim petition filed by the claimant/heir of the deceased whereas First Appeal From Order No. 643 of 2005 arises from claim petition filed by the injured-claimant.
3. It is submitted that the deceased was aged about 61 years at the time of accident and was being paid about Rs. 4,000/- per month. It is submitted by the learned counsel for the appellant that it was urged before the learned Commissioner that the person of 61 years of age could not have been employed as a driver. Moreover, his driving license had expired on 26.01.2002 and, therefore, also the Insurance Company could not have been saddled with liability. The Commissioner awarded Rs. 2,27,540/- to the heir of the deceased and Rs.3,18,772.80 to injured-claimant, whereas, the claim petitions were for Rs. 2,00,000/- each. It is further submitted that the rate of interest would be 5% to 6% and the Commissioner has ignored the said fact. It is submitted that there is no independent witnesses who had deposed whether the accident occurred due to the rash and negligence driving of the other vehicle. Lastly, it is submitted that the learned Commissioner has ignored the fact that the claimants had failed to prove that the deceased was under the employment of opposite party no.1.
4. The substantial questions of law raised by the Insurance Company are as follows:
"1. Whether, the Learned Commissioner has jurisdiction to award the compensation Rs. 2,27,540/- against the appellant though the claimants have claimed the amount of compensation only Rs. 2,00,000/- in their claim petition?
2. Whether, without giving notice under Section 10 of the Workmen's Compensation Act, 1923 to the opp. parties before filing of the claim petition the interest of 12% per year can be awarded against the appellant, Oriental Insurance Company.
3. Whether, the driver of 61 years old is workman under the Workmen's Compensation Act, 1923.
4. Whether, the grant of the amount of compensation of Rs. 2,27,540/- is sustainable under the law, without giving findings of calculation."
5. While admitting these appeals, the Division Bench did not formulate any questions of law as required under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'Act, 1923'). Be that as it may, it would be fruitful for this Court to deal with the questions of law as raised by the Insurance Company.
6. Before this Court deals with any other issue Question No. 2 which is raised is answered against the Insurance Company in view of the decision of the Apex Court in Oriental Insurance Company Vs. Siby George and Others, 2012 (4) T.A.C. 4 (S.C.). The rate of interest after amendment in Act, 1923, is 12%.
7. As far as Question No.1 is concerned, it has been held by the Apex Court that as far as beneficial piece of legislation are concerned, the Courts can grant what is known as just compensation, if the same works out as per the formula under the Act, 1923 which in this case has been applied properly by the Commissioner. As far as the penalty is concerned, it was what is known as subjective penalty and, therefore also, it does not need any interference of this Court.
8. This takes this Court to the last question whether the person of 61 years of age could be appointed as driver or not. Just because the Investigating Officer has put in investigating report as he was aged about 61 years 47 days, will not make him a non-employee as the age factor is nowhere described in the Workmen's Compensation Act that person above 60 years of age could not have employed as a driver. Nothing has been brought by the Insurance Company to rebut this factual data that he was employed by the owner.
9. This takes this Court to the fact that the license had expired much prior to the date of accident. The driving license having been expired has not been proved cogently by the Insurance Company. In the light of the judgment in Oriental Insurance Company Limited Vs. Poonam Kesarwani and others, 2008 LawSuit (All) 1557, when it was not proved by the Insurance Company that there was breach of policy conditions, the appeal cannot succeed. On the contrary, the Insurance Company has not produced the policy, hence, an adverse inference is drawn against the Insurance Company as in view of the the decision of the Apex Court in National Insurance Company Ltd. Vs. Jugal Kishore and others, AIR 1988 SC 719, it was bounden duty of the Insurance Company to produce insurance policy.
10. In North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018, Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) & Mayan vs. Mustafa and another, 2022 ACJ 524 also, the Apex Court has held that under Section 30 of Workmen Compensation Act, the High Court cannot enter into the arena of facts unless they are proved to be perverse and the Court cannot interfere unless there is a question of law involved. The decision in Salim vs. New India Assurance. Co. Ltd. and another, 2022 ACJ 526 also will not permit this Court to interfere with the well reasoned judgment of learned Commissioner.
11. In view of the above, both these appeals fail and stand dismissed.
12. The amount kept in fixed deposit be disbursed to the claimants forthwith.
Order Date :- 6.1.2023
DKS/Imtiyaz Ahmad
