Oriental Insurance Co. Ltd. vs Smt. Palwinder Kaur & Ors.
2014 Latest Caselaw 1879 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 50/2012 & CM No. 1773/2012 (Stay)

%                                                 15th April, 2014

ORIENTAL INSURANCE CO. LTD.                ......Appellant
                 Through: Mr. R.C.Mahajan, Adv.


                          VERSUS

SMT. PALWINDER KAUR & ORS.                  ...... Respondents
                 Through:  Ms. Pratima N. Chauhan, Adv. for R-
                           1 to 3.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This first appeal is filed under Section 30 of the Employee's

Compensation Act, 1923 by the insurance company impugning the judgment

of the Commissioner dated 25.11.2011 by which the claim petition filed by

the legal representatives of the deceased Tarsem Singh, respondent nos. 1 to

3 herein, has been allowed and compensation awarded of a sum of

Rs.3,84,280/-alongwith funeral charges of Rs.2500/- and also interest at 12%

p.a from the date of the accident.



FAO 50/2012                                                              Page 1 of 6
 2.    The case as set up by the respondent nos. 1 to 3 before the

Commissioner was that the deceased Tarsem Singh, late husband of

respondent no.1 and father of respondent nos. 2 and 3, was employed as a

driver of respondent no.4 herein (respondent no.1 before the Commissioner),

for driving a truck bearing no.HR-55-9697. It was pleaded by the claimants

that on 7.10.2004, the deceased Tarsem Singh was on his occupational trip

as a driver on the said vehicle from Satara to Delhi. The truck was loaded

with Rajma and the deceased Tarsem Singh was murdered by some

miscreants near Nardana village on Mumbai-Agra road. It was pleaded that

the deceased was drawing wages of Rs.4500/- per month and Rs.100/- per

day as daily allowance. The claim petition was accordingly filed under the

Employee's Compensation Act, 1923 (hereinafter referred to as 'the Act').


3.    The case of the appellant-insurance company was that the deceased

was never an employee of respondent no.4 herein but the deceased was in

fact owner of the subject truck. It was further argued that the deceased could

not have got any claim under the Motor Vehicles Act, 1988 because this was

a case of murder and not a case of accident which would be covered under

the insurance policy and hence the subject false case has been filed under the

Act. It is also argued before this Court that the only way in which the

FAO 50/2012                                                                 Page 2 of 6
 compensation could be claimed was by falsely showing that Tarsem Singh

was an employee and hence entitled to compensation under the Employee's

Compensation Act.

4.    Before me, learned counsel for the appellant has argued and

contended that the Commissioner has overlooked the admitted documents

which showed that the permit issued with respect to subject truck on

19.7.2004 and the same was in the name of deceased Tarsem Singh. Since

permit of a vehicle is only issued by an owner and the permit in this case

was issued in the name of Tarsem Singh hence Tarsem Singh was the owner

of the vehicle and was not an employee of respondent no.4. It is also argued

that the registration of the vehicle was as of 8.11.2004 applied for being

changed to the name of deceased Tarsem Singh clearly showing that when

the accident took place on 7.10.2004, actually it was Tarsem Singh who was

the owner of the vehicle and not that Tarsem Singh was an employee of

respondent no.4 herein.   Though in the R.C. transfer form, the date of

transfer to Tarsem Singh has been shown as 4.11.2004, but the fact that the

permit was earlier issued in the name of deceased Tarsem Singh, hence the

deceased Tarsem Singh was actually the owner and definitely not the

employee of respondent no.4 herein.

FAO 50/2012                                                              Page 3 of 6
 5.    I have gone through the documents filed by the respondent nos. 1 to 3

before the Commissioner. Three of these documents are very relevant and

are required to be noticed. Two of the documents i.e Ex.AW1/37 and

Ex.AW1/44 are very important and relevant but they have only been

mentioned cursorily by the Commissioner.        The three documents are

exhibited as Ex.AW1/35(Insurance Policy), AW1/37, (Certificate of

Registration), and Ex.AW1/44 (Authorization for National Permit).


6.    The first document Ex.AW1/35 being the insurance policy shows that

no doubt the insurance was in the name of Harvinder Singh but the vehicle

was financed and hence hypothecated to M/s Sundram Finance Limited. It

is only for this reason that the insurance policy was in the name of

respondent no.4 i.e Harvinder Singh.       The question is that whether

respondent no.4 was the owner of the vehicle or the deceased Tarsem Singh

was the owner of the vehicle. In my opinion there remains no doubt that the

deceased Tarsem Singn was the owner of the vehicle because the document

Ex.AW1/44 is a document dated 19.7.2004 i.e much before happening of the

accident on 7.10.2004, and which document shows that the authorisation for

national permit of the vehicle by the Regional Transport Authority was

applied for and granted to the deceased Tarsem Singh with respect to the

FAO 50/2012                                                             Page 4 of 6
 subject vehicle. A permit can only be granted to the owner of the vehicle

and the document Ex.AW1/44 in my opinion is enough to show that the

deceased Tarsem Singh was in fact owner of the vehicle on the date of the

accident and he was not the employee of respondent no.4. Any doubt with

respect to owner of the vehicle only being Tarsem Singh is removed by the

fact that respondent nos. 1 to 3 admit that the vehicle was transferred in the

name of Tarsem Singh after the death of Tarsem Singh. I have failed to

understand the reasoning as to why a vehicle will be transferred in the name

of a deceased employee because a vehicle is transferred only in the name of

the owner. It may also be noted that the hypothecation agreement was

cancelled on 8.11.2004 for effecting the transfer of the vehicle in the name

of Tarsem Singh deceased.


7.    In view of the above, it is clear that the claim petition was wholly

misconceived because the deceased Tarsem Singh was the owner of the

vehicle in question. Once the deceased was the owner of the vehicle in

question and he got murdered, under the ordinary insurance policy he could

not have got any compensation. Respondent nos. 1 to 3 therefore devised

this modality to fleece the appellant-insurance company by falsely

contending that when the deceased was the driver /employee of the

FAO 50/2012                                                                Page 5 of 6
 respondent no.4 herein whereas there can be no doubt that the deceased

Tarsem Singh was not an employee but in fact was the owner of the truck in

question which was insured by the appellant-insurance company.

8.    Ordinarily, I would have imposed costs while allowing this appeal but

taking a lenient view inasmuch as respondent nos.1 to 3 are the widow and

children of the deceased Tarsem Singh , the appeal is allowed, leaving the

parties to bear their own costs.


      If respondent nos. 1 to 3 have received amounts pursuant to the

impugned judgment, appellant is entitled to initiate appropriate legal

proceedings for recovery of the amount paid under the impugned judgment

to the respondent nos.1 to 3.




APRIL 15, 2014                             VALMIKI J. MEHTA, J.

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