The Oriental Insurance Company Ltd vs A.Shamshad Begum 4 Ors
2024 Latest Caselaw 4928 AP

Andhra Pradesh High Court - Amravati

The Oriental Insurance Company Ltd vs A.Shamshad Begum 4 Ors on 1 July, 2024

APHC010769162014
                   IN THE HIGH COURT OF ANDHRA
                               PRADESH
                                                       [3460]
                            AT AMARAVATI
                     (Special Original Jurisdiction)

               MONDAY ,THE FIRST DAY OF JULY
              TWO THOUSAND AND TWENTY FOUR
                           PRESENT
     THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
         CIVIL MISCELLANEOUS APPEAL NO: 413/2014
Between:
The Oriental Insurance Company Ltd              ...APPELLANT
                              AND
A Shamshad Begum 4 Ors and Others          ...RESPONDENT(S)
Counsel for the Appellant:
   1. GUDI SRINIVASU
   2. Y KISHORE BABU
Counsel for the Respondent(S):
   1. S DHEERA KANISHKA
The Court made the following:
                                2




      THE HON'BLE SRI JUSTICE NYAPATHY VIJAY

                    C.M.A.No.413 of 2014

JUDGMENT:

The present appeal is filed under section 30 of Workmen's Compensation Act, questioning the order in W.C.No.08 of 2008 passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Nandyal dated 30.11.2011.

2. The parties are referred to as per their nomenclature before the Commissioner.

3. The facts leading to this appeal are as under:

The deceased A.Akthar Hussain was working as a driver on lorry bearing No.AP 21-W-592 under O.P.No.1 on a monthly salary of Rs.3,000/- per month. On 18.06.2004, at about 1.15 p.m., the deceased after taking meals at Akhila Restaurant of Dommeru Village of Kovvur Mandal was checking the load ropes of the standing lorry and another driver of the said lorry had reversed it in a negligent manner without looking at the deceased driver; as a result of that, the deceased got crushed between the two lorries bearing Nos.AP 21 W 592 and AP 16- TU-6100 which was parked behind the offending vehicle. In the said accident, the deceased died on the spot. As the deceased died in the course of employment, the dependants of

the deceased i.e. wife and children of the deceased made claim application claiming compensation of Rs.3,00,000/-. The offending lorry was insured with Opposite Party No.2, which was valid from 14.08.2003 to 13.08.2004. O.P.No.1 after receiving the notice remained absent and was set ex parte. OP.No.2 i.e. Insurance Company filed counter opposing the claim.

4. The claimant No.1 examined herself as A.W.1 and one Y.Nageswara Rao, Branch Manager, Oriental Insurance Co., Ltd., Nandyal Branch was examined as R.W.1. On behalf of the claimants, Exs.A.1 to A.10 were filed i.e. certified copy of FIR, certified copy of inquest report, postmortem certificate, accident report of Motor Vehicle Inspector, office copy of legal notice, postal receipts, driving licence of deceased and certified copy of charge sheet filed before II Additional First Class Magistrate, Kovvur respectively. O.P.No.2 marked copy of insurance policy as Ex. B1.

5. In the course of evidence, counsel for the insurance company filed an application to summon R.T.O., Vijayawada to give evidence in the case. On behalf of R.T.O., Vijayawada, Senior Assistant was deputed to give evidence and he produced Ex.X.2 driving licence standing in the name of one A.S.R.Murthy bearing No.171021985. It is the opinion of R.W.2 that the driving licence of the deceased filed as Ex.A.9 was not issued by their Office and it is a fake document. Similarly, another application was filed to summon the R.T.O.

Nandyal for production of licence of Gore Hussaingari Ibrahim. Upon receipt of summons, the R.T.O. Nandyal authorized his Office Steno to give evidence and the same was the market as Ex.X3. The steno-I.Prabhakar Rao was examined and he stated that he cannot say whether the driving licence No.2407/97 of Additional Licensing Authority, Nandyal was issued and that the driving licence of Gore Hussaingari Ibrahim was not there in their Office and that it is a false one. The Commissioner after examining the evidence and the provisions of the Act, granted compensation at Rs.3,76,268/-. Hence, the appeal.

6. Heard Sri Y.Kishore Babu, learned counsel for the appellant and Sri S.Dheera Kanishka, learned counsel for the respondents.

7. It is the contention of the counsel for the appellant- insurance company that the deceased was not having any driving licence, there cannot be any employer/employee relationship and the insurance company is not liable to make any payment since the other driver, who was responsible for the accident i.e. Gore Hussaingari Ibrahim was also not having a valid driving licence as per the evidence of the Officers deputed by the respective R.T.O. Offices.

8. This contention was opposed by the learned counsel for the respondents and contended that driving licence is of no relevance in this particular case considering the nature of accident.

9. This Court after hearing the respective counsel is of the opinion that it is not for the insurance company to question the employer/employee relationship and the nature of employment. The objection of the insurance company can be entertained in case the deceased claimant was the driver and he had died in an accident. The facts in this case are that the vehicle was driven by another person by name Gore Hussaingari Ibrahim and the deceased got crushed between the two lorries while standing and checking the load. In an accident of this nature, it is immaterial whether the deceased was having a fake driving licence or a valid driving licence as the accident occurred not on account of the deceased driving the vehicle.

10. Even, if this Court has to consider the contention of the insurance company that the driver of the lorry at the time of accident i.e Gore Hussaingari Ibrahim was not holding a valid licence/fake licence also, it would not sufficient to absolve the liability of the insurer as the owner hiring the driver can only be expected to examine the license. If the driving licence looks genuine on the face of it, he cannot be expected to enquire in the RTO Office about its genuineness. Hence, the insurance company cannot be absolved from liability. This view was taken by Hon'ble Supreme Court in Premkumari and others Vs Prahalad Dev and others.1

11. The above mentioned judgment was followed by the Hon'ble Supreme Court in Ram Chandra Singh v. Rajaram

2008) 3 SCC 193

and others2 and it was held in para 11 of the said judgment that the mere fact that the licence is fake, per se, would not absolve the insurer. The para is extracted below;

"11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved.

However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer."

12. In this case, the owner was not examined and there is no evidence on record to establish that the owner in this case had knowledge of the fake driving licenses. In the absence of this critical evidence, the insurance company cannot seek to be absolved of the liability.

12. Therefore, the order of the Commissioner does not warrant any interference and the same is dismissed. No order as to costs.

(2018) 8 SCC 799

As a sequel, pending applications, if any, shall stand closed.

__________________ NYAPATHY VIJAY, J

Date: 01.07.2024

KLP