Icici Lombard General Insurance ... vs Smt. Sonia & Ors.
2014 Latest Caselaw 853 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 234/2013
%                                               14th February, 2014

ICICI LOMBARD GENERAL INSURANCE CO. LTD. ......Appellant
                  Through: Ms. Manjusha Wadhwa and Ms.
                           Harsh Lata, Advocates.


                          VERSUS

SMT. SONIA & ORS.                                          ...... Respondents

                          Through:       Mr. M.K.Rathee and Mr. J.P.Sikka,
                                         Advocates for R-1 to 6.

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

To be referred to the Reporter or not?    Yes


VALMIKI J. MEHTA, J (ORAL)

CM No. 8497/2013 (delay 25 days)

For the reasons stated in the application, delay is condoned.

CM stands disposed of.

FAO 234/2013 & CM No. 8498/2013(stay)

1 This first appeal is filed under Section 30 of the Employees'

Compensation Act, 1923 (in short 'the Act') by the insurance company

impugning the judgment dated 22.1.2001 by which the claim petition filed

by the dependants of the deceased Sh. Rakesh Yadav, employee/driver, was

allowed.

2. The facts as pleaded in the claim petition were that the deceased Sh.

Rakesh Yadav was employed with Gopi Chand, respondent no.1 before the

Commissioner (respondent no.7 herein), to drive the vehicle TATA 407 No.

UP-17-C-0540. The salary of the employee Rakesh Yadav was Rs.4500/-

and a daily allowance of Rs.50/- per day. It was pleaded in the claim

petition that on 1.5.2008 in the morning owner/Sh. Gopi Chand insisted that

deceased employee drive the vehicle for supplying of milk to certain areas

and which the deceased refused because he knew that there was a dispute

between Gopi Chand and certain persons in the area and thus a

mishappening may occur. However, on being compelled, the deceased

Rakesh Yadav took the vehicle for supply of the milk. During the

performance of his duty, at Maujpur; Delhi, at about 7.20 a.m, the deceased

Rakesh Yadav was attacked by one Vikram and his two sons as they were

having grudge for milk not being supplied. As a result of beating, the

deceased Rakesh Yadav received multiple injuries and he was declared dead

when brought to the G.T.B.Hospital. An FIR under Section 302/34 IPC

bearing no. 178/2008 was registered with the police station Seelampur,

Delhi where the accused persons are facing trial. It was pleaded that the

beating of the deceased employee Rakesh Yadav took place when he was on

duty i.e the accident arose out of and in the course of employment, and

therefore the dependants were entitled to compensation under the Act.

3. Sh. Gopi Chand/employer appeared and filed his written statement

denying that the deceased Sh. Rakesh Yadav was his employee. It was

pleaded that the vehicle in question was sold by respondent no.1 to one

Islamuddin.

4. On an application filed by the claimants/dependants, Islamuddin was

impleaded, however, Islamuddin did not appear and did not file any written

statement.

5. The appellant-insurance company was respondent no.2 before the

Commissioner. It filed its written statement inter alia pleading that the death

of the deceased employee Sh. Rakesh Yadav did not arise out of and in the

course of employment and that the deceased was not having a valid driving

licence. It is also argued in tandem with the case of the employer Gopi

Chand that since there was no relationship of employer and employee

between Rakesh Yadav and Gopi Chand the claim petition was bound to be

dismissed.

6. The Commissioner has framed the necessary issues, and given his

findings thereafter in paras 7 and 11 to 14 of the impugned judgment and

which read as under:-

"7. Out of the pleadings of the parties the following issues were framed by my predecessor authority:-

(i) Whether their existed any employer-employee relationship between the deceased and Respondent?

(ii) Whether the claimants are entitled to the claimed amount, if so to what amount?

11. The respondent no.1 and III were proceeded ex-parte.

12. On behalf of respondent no.II/Insurance Company, Legal Manager namely Sh. Mohit, Raj Nagar filed his affidavit alongwith computerized copy of policy No.3003/63548937/00/000 insuring vehicle No.UP-17C-0540, a public carrier vehicle with Shri Gopi Chand as insured. He also filed particular of Driving Licence in the form of Accident Information Report of Sh. Rakesh Kumar vide bearing No.R- 640/BPT/2002 dated 2.1.2002 issued by the R.T.O., Bhagpat, U.P. which was issued for driving motor-cycle and LMV(T) only valid for the period 2.1.2002 to 1.1.2005 only. He was also cross examined by the A.R. of the petitioner.

13. The matter was placed for arguments. Written arguments alongwith case laws were filed by the petitioner and oral argument were also heard of the parties.

14. I have to give my findings issue-wise as under:_ ISSUE NO.1 The case of the petitioner is that her husband namely Rakesh Yadav was employed with the respondent no.1 as driver at his vehicle Tata 407 No.UP-17C-0540. That on 01.05.008, in the morning at about 7.20 a.m. the deceased/driver namely Rakesh

while engaged as driver by the respondent no.1 and he was driving the said vehicle on the same day at Maujpur, Delhi and was supplying the milk during this process he was attacked by the accused Vikram and his two sons. After receiving the multiple injuries he was taken to the G.T.B.Hospital, where he was declared dead. A case was registered vide FIR No. 178/2008, U/s 302/34 IPC with P.S.Seelampur, Delhi. In support of the claim, petitioner namely Soniya filed an affidavit alongwith documents, certified copy of the FIR, Charge-sheet, Post Mortem Report, Site Plan and statement of witness. Petitioner namely Ram Chander also filed his affidavit alongwith the documents i.e. Certified copy of FIR, Superdari order of the said vehicle dated 3.5.2008, Superdarinama of the said of the said vehicle and Election I-card of respondent no.1. On going through the documents filed by the claimants i.e. FIR, Charge-sheet, P.M.R., Site plan and statement of witness, it is established that deceased namely Rakesh Kumar Yadav husband of claimant no.1 was employed as driver on the above said vehicle. It is also established as driver on the above said vehicle. It is also established that incident occurred on 1.5.2008 out of and during the course of employment. After going through the documents which was filed by petitioner namely Ram Chander i.e Superdari order, Superdarinama and Election I-card of respondent no.1 proved that respondent no.1 was the owner of the above said vehicle at the time of accident. It is further established that the insurance policy of the vehicle shown the name of the owner as Gopi Chand. In this accident deceased sustained grievous injuries and he was taken to the G.T.B.Hospital, where he was declared dead by the doctor of said hospital. Therefore, in the light of the FIR, P.M.R., Chargesheet and superdari order I hold that deceased driver Rakesh Kumar Yadav died during the course of and out of employment with respondent no.1 not respondent no.III. In view of the above discussion Issue no.1 is decided in favour of the petitioner and against the respondent."

(underlining added)

7. A reading of the aforesaid paras show that the Commissioner gave a

finding of fact of existence of the relationship of an employer and the

employee between Sh. Gopi Chand and the deceased Sh. Rakesh Yadav on

the basis of documents in the criminal case being FIR, charge-sheet and

statement of witnesses. The Commissioner has also arrived at this finding of

fact of the relationship of employer and employee on account of the

Superdari order, Superdarinama and election I-card of Gopi Chand and

accordingly it was held that Gopi Chand was the owner of the vehicle at the

time of accident.

8. The issue with respect to the deceased not having a valid driving

licence and therefore whether the appellant herein could be liable has been

dealt with in paras 18 and 19 of the impugned judgment and which read as

under:-

"18. The respondent no.II/Insurance Company contended that the policy of the vehicle issued to the respondent no.1 and the driver of the vehicle was not holding a valid driving licence, the vehicle was not driven as per the terms and conditions of the permit issued to it. Hence the answering respondent not liable to pay any compensation. The respondent no.II has also filed Accident Information Report form with his affidavit. The A.R. of the petitioner has argued that it is the matter between the owner of vehicle and insurer and victims should not be allowed to suffer. The policy of insurance which the insurance company issued was a representation upon which the

authorities to third parties are entitled to act. In this regard, he drew my attention towards a case titled as ORIENTAL INSURANCE CO. LTD. VS. HAZIRA BEGUM, 11 (1995) ACC 147 KARNATAKA HIGH COURT:-

"The compensation that is being paid is to be the workman and not either to driver, skilled artisan or mechanic as the case may be. The accent of the legislation is on the question whether the victim of the accident was a 'workman' as defined in the Act. If the legal representatives of the deceased establish that the deceased was a 'workman' as defined under Section 2(n) of the Act, then the provision of the Act is attracted. Section 3 holds the employer liable for payment of compensation if such a workman suffers personal injury in an accident arising out of an in the course of employment. The legislation thus anchors the claim on three premises, namely (i) Workman, (ii) Personal injury/death, (iii) Accident arising out of and in the course of employment. If these three requirements exist, then, the employer is liable to pay compensation under the Act. The question whether the worker violated any of the conditions of agreement between the employer and the Insurance Company may not be a germane issue. Unless there is clear terms in the contract of insurance excluding their liability, it is not open to this Court to accept the plea of Insurance Company by a process of judicial interpretation of the provisions of the Motor Vehicles Act.

In another judgment titled as NATIONAL INSURANCE COMPANY VS. MASTAN & ANOTHER, 1(2006) ACC 1(SC) held that:-

"Section 143 of the 1988 Act limits its applicability to the 1923 Act in a case where the liability arises despite the fact that the accident might have taken placed without any fault on the part of the driver of the vehicle or others in control thereof. Under the 1923 Act also, as noticed hereinbefore, a workman is entitled to compensation even if no negligence is proved against

the owner or any other person in charge of the vehicle. It is thus, not possible to extend the applicability of Section 143 of the 1988 Act to include Chapter XI thereof to a claim under the 1923 Act."

".......... In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved. Therein what is required to be proved is that the workman suffered injuries or died in course of employment..............." The A.R. of petitioner drew my attention towards Accident Information Report Form regarding the Driving Licence of deceased which is incomplete and is not attracted to the provision of W.C. Act.

19. In view of the above discussions and keeping in view the case laws of the Apex Court and various superior courts and I other the respondent no.II/Insurance Company to make the payment to the petitioner and they are also at liberty to recover the same from the respondent no.1/owner of the vehicle through appropriate court. It he has breached any terms and conditions of the policy at the time of accident/death of the driver."

9. Before me, on behalf of the appellant-insurance company, it was

firstly argued that once there was no relationship of employer and employee

the appellant-insurance company cannot be fastened any liability. Secondly,

it was argued that the death in the present case was a murder under Section

302 IPC and therefore, the incident cannot be an accident arising out of and

in the course of employment. Thirdly and finally, it is argued that since the

deceased did not have a valid driving licence, no liability can be fastened on

to the appellant-insurance company. Reliance in support of this third

argument is placed upon the judgment of the Supreme Court in the case of

National Insurance Company Limited Vs. Vidhyadhar Mahariwala & Ors.

2008 (12) SCC 701. Counsel for the dependants/claimants/respondent nos.

1 to 6 in this Court refuted the arguments urged on behalf of the appellant

and prayed for dismissal of the appeal.

10. Before adverting to the arguments urged on behalf of the appellant, it

is necessary to note that an appeal which is filed under Section 30 of the Act

can only be entertained if there is a substantial question of law. Findings of

facts unless they are perverse do not result in arising of a substantial

question of law. This Court hearing an appeal under Section 30 is not

empowered to substitute its own findings for the findings and conclusions of

the Commissioner once two views are possible and plausible.

11. The first argument urged on behalf of the appellant does not merit

acceptance because the Commissioner has arrived at a finding of fact that

there is a relationship of employer and employee between the deceased

Rakesh Yadav and Sh. Gopi Chand in view of the documents filed in the

criminal case being FIR, chargesheet, Superdari order and Superdarinama

and which documents showed that it was Gopi Chand who was the owner of

the vehicle. I may also state that the insurance policy is admittedly in the

name of Gopi Chand as the owner of the subject vehicle. The applicants

filed affidavits by way of evidence of the widow of the deceased Smt. Sonia,

(respondent no.1 herein) as also the father Ram Chander (respondent no.5

herein) that the deceased was working as a driver with Sh. Gopi Chand.

Once this was done alongwith the documents of the criminal case, I do not

find that there is any perversity in the finding of fact that the deceased

Rakesh Yadav was an employee of Gopi Chand who was the owner of the

subject truck. I may note that though the respondent no.1 before the

Commissioner -Sh. Gopi Chand contended that he had transferred the

vehicle to one Islamuddin who was impleaded as respondent no.3 before the

Commissioner, however, whether or not the vehicle has been transferred was

to be proved either by the appellant herein or by Sh. Gopi Chand but none of

them have led any evidence that the vehicle in question stood transferred to

Islamuddin.

12. Therefore, the position which emerges is that there was a valid

insurance policy with respect to the subject vehicle, incident of death took

place during the currency of the policy, as per the documents which emerged

on record Gopi Chand was the owner of the vehicle, and consequently, there

is no perversity in the conclusions arrived at by the Commissioner that the

deceased was an employee of Gopi Chand. No substantial question of law

arises so far as this argument which is urged on behalf of the appellant is

concerned.

13. The second argument urged on behalf of the appellant also has no

merit because the expression 'arising out of and in the course of

employment' is wide enough for taking into its fold a death of employee

who is attacked while performing the duties of a driver. In the present case,

the applicants before the Commissioner have sufficiently discharged their

onus of proof by filing of their own affidavits as also the documents in the

criminal case including the FIR which was registered that deceased Rakesh

Yadav was in fact attacked by the accused Vikram and his two sons which

caused serious injuries to the deceased Rakesh Yadav who was declared as

brought dead at G.T.B hospital. Therefore, the accident in this case, being

the murder of the deceased, clearly arises out of and in the course of

employment. The expression 'arising out of and in the course of

employment' does not mean that there has to be death only because of

driving of the vehicle. Accordingly, I reject the second argument which is

urged on behalf of the insurance company.

14. The last argument which is urged before this Court is that since the

deceased did not have a valid driving licence, and the deceased only had a

driving licence of LMV(T), and that too validity of which licence was only

from 2.1.2002 to 1.1.2005 and the accident in question happened on

1.5.2008, the case is squarely covered by the judgment in the case of

Vidhyadhar Mahariwala (supra) which holds that once there is no valid

driving licence, the insurance company cannot be held to be liable.

15. Before discussing the third argument urged on behalf of the

appellant-insurance company, let me reproduce the relevant para of the

appellant-insurance company of its written statement before the court below

on the basis of which this argument of the appellant-insurance company not

being liable is urged. This para-(i) of the preliminary objection of the

written statement reads as under:-

"(i) That the driver of the vehicle was not holding a valid driving licence and hence the terms and conditions of the insurance company have been violated. Thus no liability can be imposed on the answering respondent."

16. The law with respect to what is the extent of enquiry which an owner

has to undertake with respect to validity of a driving licence is now made

clear by the judgment of the Supreme Court in the case of United India

Insurance Company Ltd. Vs. Lehru and Ors. (2003) 3 SCC 338 and para

20 of the same judgment reads as under:-

"20. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner should then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make enquiries with RTO's, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had notice that the licence was fake and still permitted that person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skiandia, Sohan Lal Passi's and Kamla's cases. We are in full agreement with the views expressed therein and see no reason to take a different view."

17. A reading of the aforesaid para in the case of Lehru (supra)

shows that the owner and the claimants before the Commissioner should be

put to notice by a specific pleading of the insurance company that the

driving licence of the workman/driver is not valid or fake or hit by the terms

of the policy. It is only when a specific defence is raised against the

employer or the dependants of the deceased that the employer or the

dependants can come into the witness box and depose that while employing

the driver a valid driving licence was shown. In the present case, I have

already reproduced preliminary objection no.1 of the written statement of the

appellant before the Commissioner, and suffice to state that the defence is

far too general. A defence that there is no valid licence can have many

many connotations and many many aspects. A defence of invalid driving

licence can mean that the driving licence is a fake driving licence or that it is

not valid on the date when the accident took place or a driving licence is for

a different type of vehicle than the vehicle which the deceased driver was

driving at the time of accident etc etc etc. In the facts of the present case, in

my opinion, it was incumbent upon the insurance company in view of the

ratio laid down in the case of Lehru (supra) if the appellant-insurance

company was of the opinion that the driving licence was not valid on the

date of the accident or being only for driving of LMV(T), then such specific

defences ought to have been pleaded in the written statement so that the

applicants/claimants were put to notice for leading evidence in this regard.

Without a specific pleading in this regard the applicants/claimants cannot be

taken by surprise by the witness of the insurance company for the first time

stating in the affidavit by way of evidence that on the enquiry from the RTO

it transpires that the driving licence was not valid on the date of the accident

and was of LMV(T) only. It is settled law that no amount of evidence can

be looked into on a pleading which does not exist. Also, this aspect of lack

of valid driving licence for the date of the accident had to be put as a specific

defence because in such a case applicants/claimants could have given the

date of commencement of the employment of the deceased respondent no.4

and proved/deposed that driving licence was valid on the date of

commencement of the employment which was seen by the owner of the

vehicle. In the absence of the requisite specific pleading, the

claimants/applicants therefore were not required to lead any evidence with

respect to the validity of the driving licence on the date of the accident. As

already held in Lehru's case (supra) the owner of the vehicle does not have

to make full-fledged enquiry with respect to the validity of the driving

licence except at the commencement of the employment unless and until

subsequently it is specifically brought to the notice of the employer that the

driver is driving with a fake driving licence or an expired driving licence. As

already stated in the absence of any such pleading by the appellant, any

evidence which is led, which is beyond the pleading, especially as it causes

prejudice and surprise to the applicants cannot be considered either by this

Court and need not have been considered by the Commissioner also.

18. The judgment relied upon on behalf of the appellant-insurance

company in the case of Vidhyadhar Mahariwala (supra) has no application

in the facts of the present case because in para 4 of the cited judgment it is

specifically noted that the insurance company had filed its objections before

the MACT taking up a specific stand of the driving licence being not valid

on the date of the accident and therefore the appellant-insurance policy had

no liability. As already stated above, there is no specific defence of this

nature in the pleading which is filed by the appellant-insurance company

before the Commissioner, and therefore the ratio in the decision of

Vidhyadhar Mahariwala (supra) has no application to the facts of the

present case which are different.

19. In view of the above, I do not find any merit in the appeal, and the

same is therefore dismissed, leaving the parties to bear their own costs.

FEBRUARY 14, 2014                             VALMIKI J. MEHTA, J.
ib