Bombay High Court
The New India Assurance Co.Ltd. ... vs Shri Pandurang S/O Mahadev ... on 22 May, 2017
Bench: V.A. Naik
2205FA1036.09-Judgment 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 1036 OF 2009
APPELLANT :- The New India Assurance Co. Ltd., Branch at
(Org.N.A.No.2) Chandrapur, District Chandrapur, Through
the Divisional Manager, Dr. Ambedkar
Bhavan, 4th Floor, NECL Building Seminary
Hills, Nagpur.
...VERSUS...
RESPONDENTS :- 1. Shri Pandurang s/o Mahadev Urkande, aged
(Org.Applicant No.1) about 49 years, Ocu. Labour.
(Org.Applicant No.2 2. Sou. Bebi W/o Pandurang Urkande, aged
on R.A.) about 41 years, Occu.: Household,
Nos.1 and 2 both R/o Tadgwhan (Rai), Tah.
Warora,District-Chandrapur.
(Org.Applicant No.2 3. Shri Uttam s/o Niwaruti Narkhede, Aged
on R.A.) Major, Occu-Owner, R/o Major Store
Chowk, Tadoba Road, Durgapur, District
Chandrapur.
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Mr. P. S. Sahare, counsel for the appellant.
None for the respondents.
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CORAM : SMT. VASANTI A NAIK, J.
DATED : 22.05.2017
2205FA1036.09-Judgment 2/10
O R A L J U D G M E N T
By this first appeal, the appellant-New India Assurance
Company Limited challenges the judgment and award of the
Commissioner under the Workmen's Compensation Act, dated
28/01/2009 in Workman Compensation Case No.5 of 2007.
2. Few facts giving rise to the first appeal are stated thus:-
The respondent Nos.1 and 2 are the father and mother of
deceased Sandip, who expired in an accident between a Tata tipper and
matador on 30/01/2007. Sandip was driving Tata tipper bearing
registration No. MH-35 A-4555 on 30/01/2007 at about 9.30 p.m. on
the road from Tadgawhan to Nandori when there was a collision
between a matador and the tipper driven by Sandip. Sandip died on the
spot. Since Sandip was the elder son of the respondent Nos.1 and 2,
they filed an application bearing Workman Compensation Case No.5 of
2007 under the Workmen's Compensation Act for compensation. It was
pleaded by the respondent Nos.1 and 2 in the application that Sandip
was their elder son, who was barely 23 years of age at the time of the
accident and was at the relevant time, working as a driver of the tipper
with respondent No.3 Shri Uttam Narkhede. It was pleaded that the
Tata tipper that was involved in the accident was insured with the
appellant-insurance company for the period from 10/11/2006 to
2205FA1036.09-Judgment 3/10
09/11/2007. It was pleaded that on the date of the accident, the
insurance policy was valid. It was further pleaded that Sandip was
earning daily wages of Rs.100/- and allowance of Rs.50/- per day. It
was pleaded that the monthly income of the deceased was Rs.4,500/- as
Sandip was regularly driving the vehicle. It is pleaded that though
Sandip was earning a sum of Rs.4,500/- per month, even if it is
assumed that he was sparing a sum of at least Rs.2,000/- per month for
his family members, the insurance company and Uttam Narkhede would
be jointly and severally liable to pay a sum of Rs.4,27,800/- to the
respondent Nos.1 and 2. The respondent Nos.1 and 2 claimed interest
at the rate of 12% per annum on the aforesaid amount.
3. Shri Uttam Narkhede did not contest the matter. The
appellant-insurance company filed the written statement and denied the
claim of the respondent Nos.1 and 2. It was denied that Sandip was
working as a driver with Uttam Narkhede. It was denied that Sandip
died in the accident on 30/01/2007. It was also denied that Sandip
was earning a sum of Rs.4,500/- per month, as alleged by the
respondent Nos.1 and 2. The appellant-insurance company sought for
the dismissal of the application. In the specific pleadings, it was pleaded
that the respondent Nos.1 and 2 ought to have joined the driver, the
owner and the insurance company with which the matador was insured
2205FA1036.09-Judgment 4/10
as necessary parties. It was pleaded that the accident was caused due
to the rash and negligent driving by Sandip and not by the driver of the
matador.
4. On the aforesaid pleadings of the parties, the issues were
framed and respondent No.1 Pandurang tendered oral evidence in
support of his claim. Pandurang stated in his evidence that Sandip was
born on 30/07/1983 and that he was barely 23 years of age at the time
of his death. It was stated that Sandip was earning a sum of Rs.4,500/-
per month. It was stated that the accident was caused near Nandori
village on 30/01/2007 and Sandip had died on the spot. It was stated
that as Sandip was not married at the relevant time, he was giving a
substantial part of his earning to Pandurang and his wife. Pandurang
was cross-examined on behalf of the appellant-insurance company.
Pandurang stated in his evidence that he does not possess any
document to show that Sandip was employed as a driver on the tipper
with Uttam Narkhede. Pandurang denied that his son was not earning
a sum of Rs.4,500/- per month and that his son was married at the
relevant time. Pandurang denied that he was not dependent on the
income of Sandip. Pandurang further denied that some people were
travelling in the tipper as passengers on payment. The Branch Manager
of the appellant company at Chandrapur was examined. He stated in
2205FA1036.09-Judgment 5/10
his examination-in-chief that the tipper was insured with the appellant
company from 10/11/2006 to 09/11/2007 and the owner of the tipper
was K. Shankar. It was stated that at the relevant time Uttam Narkhede
was not the owner of the tipper. In his cross-examination the Branch
Manager however admitted that he was not aware whether Uttam
Narkhede was the owner of the tipper as per the record of the Regional
Transport Office. The Branch Manager admitted that they had received
the premium of the policy for the said tipper regularly. The Branch
Manager however denied that he was tendering false evidence in
support of the insurance company. On an appreciation of the evidence
on record, the Commissioner under the Workmen's Compensation Act
allowed the application filed by the respondent Nos.1 and 2 and held
that the appellant-insurance company and Uttam Narkhede were jointly
and severally liable to pay the compensation of Rs.4,39,900/- to the
respondent Nos.1 and 2 with interest at the rate of 6% per annum from
09/04/2007. The award of the Commissioner under the Workmen's
Compensation Act is challenged by the insurance company in the
instant appeal.
5. The learned counsel for the appellant submitted that the
Commissioner under the Workmen's Compensation Act was not justified
in allowing the application filed by the respondent Nos.1 and 2. It is
2205FA1036.09-Judgment 6/10
submitted that the tipper was insured with the appellant-insurance
company from 10/11/2006 to 09/11/2007 but the tipper was not
registered in the name of Shri Uttam Narkhede. It is submitted that
since at the relevant time Sandip was driving the tipper which allegedly
belonged to Uttam Narkhede and since the policy was in the name of K.
Shankar, the Commissioner under the Workmen's Compensation Act
was not justified in directing the insurance company to jointly and
severally pay a sum of Rs.4,39,900/- to the respondent Nos.1 and 2. It
is submitted that in the circumstances of the case, the application filed
by the respondent Nos.1 and 2 was liable to be dismissed.
6. On hearing the learned counsel for the appellant and on a
perusal of the record and proceedings, it appears that the following
points arise for determination in this first appeal:-
(I) Whether the Commissioner under the Workmen's
Compensation Act was justified in directing the insurance
company to pay a sum of Rs.4,39,900/- to the respondent
Nos.1 and 2 towards compensation with 6% interest?
(II) What order?
7. To answer the aforesaid points for determination, it would
be necessary to consider the pleadings of the parties and the evidence
2205FA1036.09-Judgment 7/10
tendered by them. It appears from the pleadings of the respondent
Nos.1 and 2 that Sandip was the driver of the tipper bearing registration
No. MH-35 A-4555 and on 30/01/2007, he died on the spot in the
accident between the tipper and the matador. The respondent Nos.1
and 2 have pleaded that Sandip was earning a sum of Rs.4,500/- per
month and was giving a sum of Rs.2,000/- per month to his parents as
they were dependent on him. It is pleaded that Sandip was barely 23
years of age at the time of accident. The respondent Nos.1 and 2,
therefore claimed compensation at Rs.4,27,800/- with interest at the
rate of 12% per annum. The insurance company denied the claim of
the respondent Nos.1 and 2. It is pertinent to note that the appellant-
insurance company has not denied that the tipper was insured with the
appellant-insurance company for the period from 10/11/2006 to
09/11/2007. Admittedly, the accident occurred on 30/01/2007. Thus,
the accident occurred when the tipper was insured with the appellant-
insurance company. Uttam Narkhede has not defended the proceedings
and has also not entered into the witness box to deny the claim of the
respondent Nos.1 and 2. It appears from the record that Sandip was
driving the tipper since K. Shankar was the owner and continued to do
so after Uttam Narkhede became the owner of the tipper. Though the
Branch Manager of the insurance company at Chandrapur had stated in
his examination-in-chief that K. Shankar was the owner of the tipper at
2205FA1036.09-Judgment 8/10
the time of the accident, he has admitted in his cross-examination that
he is not aware whether Uttam Narkhede was the owner of the tipper at
the time of the accident and that he was the registered owner of the
same with the Regional Transport Office. The Branch Manager had
fairly admitted in his cross-examination that the premium for the policy
was regularly paid during the relevant period, i.e. from 10/11/2006 to
09/11/2007. Admittedly, when the tipper was insured with the
insurance company, the insurance company was rightly joined as a
party to the proceedings and a claim for compensation was made
against it.
8. Pandurang had entered into the witness box in support of
his case that Sandip was earning a sum of Rs.4,500/- per month and
50% of his monthly wages would be Rs.2,250/-. Pandurang stated in
his pleadings and in his evidence that even if it is assumed that 50% of
the monthly wages of Sandip would be only Rs.2,000/-, the respondent
Nos.1 and 2 would be entitled to a sum of Rs.4,27,800/- towards
compensation. The learned Commissioner under the Workmen's
Compensation Act has rightly relied on the evidence of Pandurang and
believed his version that 'Sandip must be earning a sum of Rs.4,500/-
per month as the driver of the tipper'. The learned Commissioner,
therefore, recorded a finding in support of the claimants that the
2205FA1036.09-Judgment 9/10
minimum monthly earning of Sandip must be Rs.4,000/-. The learned
Commissioner rightly held on the basis of the evidence that Sandip
had the license for driving light motor vehicles and heavy motor
vehicles. The learned Commissioner further rightly held that while
granting compensation under the Workmen's Compensation Act, it
would not be necessary to decide as to whether Sandip was negligent in
driving the vehicle or not. A finding of fact was recorded that Sandip
was earning at least a sum of Rs.4,000/- per month and was barely 23
years of age at the time of the accident. At the relevant time, since the
interest on the savings bank account in the nationalised bank was 6%
per annum, the learned Commissioner granted interest at the rate of 6%
per annum on the amount of Rs.4,39,900/- that was liable to be paid by
the appellant-insurance company and Uttam Narkhede, jointly and
severally to the respondent Nos.1 and 2. The findings of facts recorded
by the Commissioner are based on a proper appreciation of the evidence
on record. Since Sandip possessed the license for driving the light motor
vehicles and heavy vehicles and since admittedly the tipper for which
Sandip was engaged as a driver was insured with the appellant-
insurance company at the relevant time, the learned Commissioner was
justified in holding that the insurance company was jointly and
severally liable to pay the compensation to the respondent Nos.1 and 2
along with Shri Uttam Narkhede. The findings of facts recorded by the
2205FA1036.09-Judgment 10/10
Commissioner under the Workmen's Compensation Act are just and
proper and call for no interference in this first appeal.
9. In the result, the first appeal fails and is dismissed with no
order as to costs. The respondent Nos.1 and 2 are permitted to
withdraw the amount deposited by the appellant company in terms of
the award. A copy of the order may be sent to the respondent Nos.1 and
2 at the earliest. Order accordingly.
JUDGE
KHUNTE
