Bombay High Court
The New India Assurance Co.Ltd vs Smt.Sushilabai S.Aswar,And Ors on 26 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 610 OF 1997
The New India Assurance Co. Ltd.,
through its Senior Divisional Manager,
Shri Syed Khalil s/o Syed Chand,
age major, Occ. Service in Divisional
Office, Adalat Road, Aurangabad
R/o Aurangabad.
..Appellant..
(orig respondent no.2)
VERSUS
1. Smt. Sushilabai w/o Sukhdeo Aswar,
age 28 years, Occ. Household,
R/o Maliwada, Near Daulatabad,
Tq. & Dist. Aurangabad.
2. Ankush s/o Sukheo Aswar,
age 9 years, Occ. Minor,
3. Lalu s/o Sukhdeo Aswar,
age 7 years, Occ. Minor.
4. Arun s/o Sukhdeo Aswar,
age 5 years.
Respondents No2 to 4 are minors
u/g of their mother
Sushilabai Sukhdeo Aswar,
Resp No. 1 r/o Maliwada,
Daulatabad Dist. Aurangabad.
...Respondents..
/orig claimants.
5. Shri Sayed Wahab Syed Akbar,
(Deceased) through his L.Rs.
5-a. Mr. Sayed Zuber Sayed Wahab,
age 38 years, Occ. Agri and Business,
R/o Daulatabad, Tq. & Dist. Aurangabad.
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5-b. Mr. Sayed Juned Sayed Wahab,
age 33 years, Occ. Agri and Business,
R/o Daulatabad Tq. & Dist. Aurangabad.
5-c. Mr. Sayed Mohsin Sayed Wahab,
age 30 years, Occ. Agri and Business,
R/o Daulatabad Tq. & Dist. Aurangabad.
5-d. Mr. Sayed Mujahed Sayed Wahab,
age 28 years, Occ. Agri and Business,
R/o Daulatabad Tq. & Dist. Aurangabad.
..Respondents...
ig WITH
FIRST APPEAL NO.116 OF 2004
The New India Assurance Company Ltd.,
Divisional Office No.I, Adalat Road,
Aurangabad through its Divisional
Manager, Namdeo Gangaram Mali,
age 45 years, Occ. Service, R/o N-4,
Cidco, Aurangabad. ..Appellant..
(Orig. respondent No.2)
VERSUS
1. Roshanbee w/o Shaikh Gaffar,
age 45 years, Occ. Household,
R/o Daulatabad, Tq. & Dist.
Aurangabad.
2. Syed Wahab s/o Syed Akbar
(Deceased) through his L.Rs.
2-a. Mr. Sayed Zuber Sayed Wahab,
age 38 years, Occ. Agri and Business,
R/o Daulatabad, Tq. & Dist. Aurangabad.
2-b. Mr. Sayed Juned Sayed Wahab,
age 33 years, Occ. Agri and Business,
R/o Daultabad Tq. & Dist. Aurangabad.
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3 FA 610.1997+.odt
2-c. Mr. Sayed Mohsin Sayed Wahab,
age 30 years, Occ. Agri and Business,
R/o Daulatabad Tq. & Dist. Aurangabad.
2-d. Mr. Sayed Mujahed Sayed Wahab,
age 28 years, Occ. Agri and Business,
R/o Daulatabad Tq. & Dist. Aurangabad.
..Respondents...
...
Advocate for Appellant : Shri M.M. Ambhore.
Advocate for Respondents : Mr A. A. Joshi for
respondents No.1 in FA 116/2004 and Mr.Abhishek
Kulkarni h/f Mr. S.H.Joshi for respondent No.1 to 4 in
FA No.610/1997
Mr R. R. Shaikh For 2(a) to 2(d) in FA 116/2004 and for
respondent No.5 in FA 610/1997
...
CORAM : V.K. JADHAV, J.
Dated: April 26, 2016
...
COMMON JUDGMENT :-
1. Heard learned counsel for respective parties.
2. Both these appeals can be decided by this
common judgment, as same are arising out of one and
the same motor vehicular accident.
3. Being aggrieved by the Judgment and Award dated
05.04.1997 in WC No.9 of 1991 and the Judgment and
Award dated 18.01.2001 in WC No.6 of 1991 passed by
learned Labour Court, Aurangabad, original respondent
4 FA 610.1997+.odt
No.2-insurer has preferred these two First Appeals.
4. Brief facts, giving rise to the present appeals are
as follows :-
(a) On 7.6.1990 deceased Shaikh Sattar was working
as usual on the truck bearing registration No.MWD-
8762 owned by respondent No.1 as a labour along with
other labours. On that day truck was transporting
bricks and deceased Shaikh Sattar alongwith other
labours sat in the back portion of the truck for
unloading said truck at the given destination. At the
relevant time, said truck was being driven by deceased
Shaikh Salauddin. On way at about 09.00 p.m. said
truck met with an accident. Said truck dashed against
one S.T. Bus within the limits of village Mitmita. In
consequence of which, deceased Shaikh Sattar
sustained head injury. He was immediately shifted to
Ghati Hospital, where he succumbed to the injuries.
Legal representatives of deceased Shaikh Sattar filed
WC No. 6 of 1991 before Labour Court, Aurangabad for
grant of compensation.
5 FA 610.1997+.odt
(b) Similarly, legal heirs of another labour who also
died in the said accident, namely Sukhdeo Kondiba
Aswar also filed W.C. No.9/1991 before Labour Court,
Aurangabad for grant of compensation.
(c) Respondent No.1 has strongly resisted both the
applications by filing his separate written statements in
respective applications. Respondent No.1 has not denied
the employer-employee relationship. He has also
admitted happening of the accident and death of
labours working on his truck at the time of accident.
Respondent no.1 has accepted that deceased Sukhdev
and deceased Shaikh Sattar met with an accidental
death out of and during the course of their employment.
According to respondent no.1, the truck involved in the
accident is insured with respondent no.2 under the
insurance certificate covering the date of accident and
therefore, respondent no.2 is liable to pay the
compensation.
(d) Respondent no.2-insurer has also strongly resisted
both the applications by filing separate written
6 FA 610.1997+.odt
statements. According to respondent no.2, at the
relevant time, the truck was being driven by an
incompetent person who was not having valid and
effective driving licence. However, respondent no.2 has
resisted both the claim petitions on the ground that in
all nine persons were travelling in the truck as
passengers and therefore, there has been breach of
terms and conditions of the policy. Respondent No.2 is
not liable to pay compensation along with penalty and
interest.
(e) The learned Judge of the Labour court,
Aurangabad by impugned Judgment and order dated
18.1.2001 in application WC No.6/1991 which is
impugned in First Appeal No. 116 of 2004, partly
allowed the said application and awarded compensation
of Rs.52,433/- alongwith Rs.10,000/- towards penalty
from respondent no.2 with interest @ 6% p.a. on
compensation amount from the date of application till
passing of the order. Learned Judge of the Labour
court, by Judgment and Award dated 05.04.1997 which
is impugned in First Appeal No. 610 of 1997, allowed the
7 FA 610.1997+.odt
application WC No.9/1991 in toto and thereby directed
the respondents no. 1 and 2 to pay the compensation as
claimed alongwith 50% penalty, plus 12% interest as
claimed by the applicants. Being aggrieved by the same,
respondent no.2-insurer has preferred two separate
appeals i.e. First Appeal No.610/1997 (The New India
Assurance Co. Ltd. Vs. Smt. Sushilabai Aswar and
others) and First Appeal No.116/2004 (The New India
Assurance Co. Ltd. Vs. Roshanbee w/o Shaikh Gaffer
and others).
5. Learned counsel for the appellant-insurer submits
that, the Labour court has not considered the defence
raised by appellant-insurer in its proper perspective.
Learned counsel submits that, in all nine persons were
travelling in a goods carriage as passengers and
therefore, appellant-insurer is not liable to pay
compensation. Learned counsel submits that deceased
Salauddin was not driving the vehicle truck at the time
of accident and some other person was driving the truck
at the time of accident. Learned counsel submits that
after the accident, said Salauddin found beneath the
8 FA 610.1997+.odt
bricks and the same was not possible if at all deceased
Salauddin was driving the truck. Learned counsel
further submits that the Labour Court has erroneously
saddled the appellant-insurer with liability to pay the
penalty.
6. In order to substantiate his submissions, learned
counsel for the appellant places his reliance on following
cases :-
Ved Prakash Garg Vs. Premi Devi and
others, reported in AIR 1997 SC 3854.
2. Udhav Rangnathrao Pawar Vs. Sheshrao
Ramji Jogdand and anr., reported in 2009
(5) Bom.C.R.523.
7. Both the learned counsel appearing for original
claimants submit that the Labour Court has rightly
considered the oral and documentary evidence adduced
by the claimants. Learned counsel submits that
deceased Shaikh Sattar and deceased Sukhdev were
working as labours and they were travelling in the truck
in that capacity for unloading the truck at the given
9 FA 610.1997+.odt
destination. Learned counsel submits that the owner-
employer has not disputed the same. Learned counsel
submits that deceased Salauddin was driving the
vehicle truck at the time of accident and after the
accident, crime came to be registered against him in the
concerned police station for driving the vehicle truck in
rash and negligent manner. Learned counsel submits
that even though compensation was due after period of
one month from the date of accident, and even though
intimation was given by the owner to the appellant-
insurer, the compensation amount was not deposited
before the Labour Court and the Labour Court has
rightly saddled the appellant-insurer with liability to pay
the penalty. Learned counsel submits that, no
interference is required in the impugned Judgments and
Awards and the appeals are liable to be dismissed.
8. Learned counsel for the respondent-owner submits
that as per the Insurance Policy, eight persons were
permitted to travel in the truck as labours for
loading/unloading the said truck and the liability to pay
compensation towards said labour is covered by the
10 FA 610.1997+.odt
policy issued by the appellant-insurer. Learned counsel
submits that, in light of oral evidence adduced by
respondent/owner coupled with certified copies of police
papers, it can be safely concluded that at the time of
accident labours along with driver and cleaner of the
truck were travelling in the truck and they were not the
passengers. Learned counsel submits that even though
intimation was given to the appellant-insurer about the
accident and even though own damage claim of the
vehicle is settled finally by the appellant-insurer, the
appellant-insurer has not deposited compensation
amount before the Labour Court and therefore, the
Labour Court has rightly saddled the appellant-insurer
with liability to pay the penalty.
9. The appellant-insurer has examined its Branch
Manager before the Labour Court. He has admitted in
his cross examination that the Insurance Company has
settled the own damage claim of respondent-insured. It
also appears from the documents placed before the
Labour court that in the police complaint, there is a
specific reference that on account of rash and negligent
11 FA 610.1997+.odt
driving of driver Salauddin, labours sat on the heap of
bricks at the back portion of the truck met with an
accidental death. Furthermore, respondent no.1-owner
has also not disputed the employer-employee
relationship and he has also admitted that at the time of
accident deceased Sukhdev and deceased Shaikh Sattar
were travelling in the truck in the capacity as labours
for unloading said truck at the given destination.
Learned Judge of the Labour Court has therefore,
rightly observed that the appellant-insurer has failed to
prove that there was breach of conditions of the policy.
Learned Judge of the Labour Court has recorded
findings in the negative to the issue that deceased was
an unauthorized passenger travelling by the truck
involved in the accident. In view of the above discussion,
I do not find any fault and the evidence on record clearly
indicates that deceased Sattar and deceased Sukhdeo
Aswar were travelling in the truck as labours.
10. So far as question of penalty is concerned, learned
counsel appearing for the claimants in both the appeals
have fairly conceded that the appellant-insurer cannot
12 FA 610.1997+.odt
be saddled with the liability to pay the penalty. The
Supreme Court in case of Ved Prakash Garg (supra)
relied upon by learned counsel for the appellant-insurer
held that, claim for compensation payable under
Workman's Compensation Act along with interest
thereon u/s 4-A (3) have to be paid by the insurer, but
so far as the amount of penalty imposed u/s 4-A(3)(B) is
concerned, as that is on account of personal fault of the
insured not backed by any justifiable cause, the insurer
cannot be made liable and has to be paid by the
employer himself. In the said case, the Supreme Court
further held that, penalty is required to be levied under
the provisions of said Act after issuing show cause
notice to the employer concerned who will have
reasonable opportunity to show cause that on account
of some justification on his part, there is delay in
making payment of compensation and thus, he is not
liable to pay the penalty. It is further observed by the
Supreme Court that, if ultimately, the Commissioner
after giving reasonable opportunity to the employer to
show cause, takes a view that there is no justification
for such delay on the part of the insured employer and
13 FA 610.1997+.odt
because of his unjustified delay and due to his personal
fault, he is held responsible for the delay, then penalty
would be imposed on him. It has been further held
that, so far as penalty amount is concerned, it cannot
be said that it automatically flows from the main
liability incurred by the insured employer under the said
Act.
11.
In view of the above observations and the
observations made by learned Single Judge of this
Court in the case of Udhav Rangnathrao Pawar (supra)
relied upon by learned counsel for the appellant-insurer,
the impugned Judgment and Award dated 05.04.1997
passed in WC No.9 of 1991 directing the appellant-
insurer to pay penalty to the extent of 50% and the
impugned Judgment and Award dated 18.01.2001
passed in WC No.6 of 1991 directing the appellant-
insurer to pay penalty of Rs.10,000/- are liable to be
quashed and set aside to that extent only.
12. At this stage, both the learned counsel appearing
for respondents/original claimants in respective appeals
14 FA 610.1997+.odt
make a statement that the respondents/original
claimants waive the amount of penalty. In view of this,
no purpose would be served in remanding the matter to
the Commissioner for issuing show cause notice to the
employer concerned and after giving an opportunity of
being heard to the respondent-employer, pass an
appropriate order with regard to the imposition of
penalty.
13. So far as quantum of compensation is concerned,
the Labour Court has awarded Just and reasonable
compensation and the same is also not disputed by
learned counsel appearing for the appellant-insurer. No
interference is required in this regard. Accordingly, I
pass following order.
O R D E R
I. First Appeal No.610/1997 (The New India
Assurance Co. Ltd. Vs. Smt. Sushilabai w/o
Sukhdeo Aswar and others) and First Appeal
No.116/2004 (The New India Assurance Co.
Ltd. Vs. Roshanbee w/o Shaikh Gaffer and
others) are hereby partly allowed.
15 FA 610.1997+.odt
II. The impugned Judgment and award dated
05.04.1997 passed in WC No.9 of 1991
(Sushilabai Sukhdeo Aswar and others Vs Syed
Wahab Syed Akbar and another) to the extent
of directing the appellant-insurer to pay
penalty to the extent of 50% of amount of
compensation and the Judgment and award
dated 18.01.2001 passed in WC No.6 of 1991
(Roshanabee Shaikh Gaffar Vs Syed Wahab
Syed Akbar an another) to the extent of penalty
of Rs.10,000/-, are hereby quashed and set
aside.
III. Rest of the Judgment and awards dated
05.04.1997 and 18.01.2001 passed in WC No.9
of 1991 and WC No.6 of 1991 respectively,
stand confirmed.
IV. In the circumstances, there shall be no order
as to costs.
V. Award be drawn up accordingly.
VI. In light of the above, the original claimants in
both the appeals are permitted to withdraw the
amount, if deposited by the appellant-insurer
before the Commissioner.
VII. Both the appeals are disposed of accordingly.
( V.K. JADHAV, J. )
aaa/- ......
