National Insurance Co. Ltd. vs Smt. Badami Devi And Ors.
2014 Latest Caselaw 1619 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO No.37/2014

%                                                   26th March, 2014

NATIONAL INSURANCE CO. LTD.             ....Appellant
                 Through:   Mr. Pradeep Gaur, Advocate.

                           VERSUS

SMT. BADAMI DEVI AND ORS.                           ...... Respondents
                   Through:

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


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.1869/2014 (exemption)\

1.           Exemption allowed subject to just exceptions.

             C.M. stands disposed of.

C. M. No.1868/2014 (condonation of delay in filing)

2.           For the reasons stated in the application, delay of 130 days in

filing the appeal is condoned.

             C.M. stands disposed of.

+ FAO No.37/2014 and C.M. No.1867/2014 (stay)

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

Compensation Act, 1923 impugning the judgment of the Commissioner dated
FAO No.37/2014                                                  Page 1 of 6
 14.6.2013 which has allowed the claim petition filed by the claimant;

respondent no.1 herein; and who is the mother of the deceased employee Sh.

Umesh Kumar. Sh. Umesh Kumar died on 24.7.2005 in an accident while

driving T.S.R No.DL-1RJ-1105 (three wheeler) which belonged to the

employer/respondent no.2 herein, respondent no.1 before the Commissioner.


4.           The facts of the case as pleaded before the Commissioner by the

respondent no.1 herein were that the deceased Sh. Umesh Kumar was

employed by the respondent no.2 herein. The deceased employee on 24.7.2005

at 2.15 A.M. while driving the TSR No.DL-1RJ-1105 met with an accident and

died. The death is therefore stated to have been caused on account of injuries

sustained by him in the accident during the course of employment with the

respondent no.2 herein. The deceased was 20 years old at the time of his death

and his monthly salary was stated to be Rs.4,500/- per month.         An FIR

No.236/2005 was registered at police station Usmanpur, Delhi and the post

mortem of the deceased employee was conducted in G.T.B hospital, Shahdara

Delhi. Compensation was accordingly claimed from both the employer as well

as the appellant-insurance company.


5.           The Commissioner has held that there existed a relationship of

employee and employer because the deceased Sh. Umesh Kumar was found to

have driven the vehicle which met with an accident, and which vehicle was
FAO No.37/2014                                                 Page 2 of 6
 found registered in the name of the respondent no.2 herein. The Commissioner

also noticed that the appellant/insurance company has taken additional

premium under the Workmen's Compensation Act, 1923 with respect to the

driver, and this is also one of the grounds for holding that the deceased Sh.

Umesh Kumar would have had a relationship of an employee with the

employer/respondent no.2.     The Commissioner has thereafter applied the

statutory formula and awarded compensation both against the respondent no.2

herein as also the appellant/insurance company.


6.           Before me, counsel for the appellant has argued the following two

points:


(i)    There was no relationship of employee and employer between the

deceased Sh. Umesh Kumar and the respondent no.2 herein.


(ii)   No compensation is payable because the deceased employee was having

a licence for LMV and was not having a driving licence for the three wheeler

which had met with the accident on 24.7.2005.


7.           So far as the first argument is concerned, in my opinion, no

substantial question of law arises under Section 30 for this appeal to be

entertained because in cases of employing of a driver for driving of a TSR I do

not think that there would be properly drafted and typed out contracts which are

FAO No.37/2014                                                   Page 3 of 6
 required to be filed for showing the relationship of employer and employee. It

is settled law that provisions of Code of Civil Procedure, 1908 (CPC) and

Evidence Act, 1872 do not apply to the proceedings before the Commissioner.

However, the fact that the vehicle which was driven by deceased Sh. Umesh

Kumar met with an accident was in the name of the employer/respondent no.2,

is sufficient to hold that the deceased Sh. Umesh Kumar was the employee of

the respondent no.2 more so because there was no reason why the

appellant/insurance company would have taken additional premium under the

policy with respect to the Employee's Compensation Act if there was no

employee i.e the deceased employee Sh. Umesh Kumar. The first argument

therefore urged on behalf of the appellant is rejected.


8.           So far as the second argument is concerned, in my opinion,

though a vague plea of there not being a valid licence was taken in the written

statement, but that is not too happily worded because the objection is that "if it

is proved" that the deceased employee did not have a driving licence. Also no

such specific issue with respect to the deceased Sh. Umesh Kumar not having

an appropriate driving licence was sought to be got framed. Further the object

of a pleading is to give notice of a case to the opposite party for being met and

a plea of valid licence not being there is hardly a specific plea because lack of

valid licence can include various issues of a licence being fake or expired or not

FAO No.37/2014                                                    Page 4 of 6
 being for a vehicle of requisite type/category. Even if I allow such a plea to be

raised it is not disputed before me that the deceased had an LMV licence. The

issue is whether LMV licence entitled the deceased Sh. Umesh Kumar to drive

the three wheeler scooter. The law in this regard is now settled by a Division

Bench judgment of three Judges of the Supreme Court in the case of National

Insurance Company Ltd. Vs. Swaran Singh & Ors. (2004) 3 SCC 297 and

wherein the Supreme Court has held that merely because there is a different

type of driving licence in itself that will not enable the insurance company to

wriggle out of its liability unless it shows that possessing of a different type of

driving licence than the vehicle which was being found driven is the main or

contributory cause for the accident. It has further been held that if accident is

caused because of some other unforeseen or intervening causes like mechanical

failures having no nexus with driver not possessing the requisite type of

licence, the insurance company will not be allowed to avoid its liability merely

taking by a pleading of breach of conditions concerning the driving licence.

9.           In view of the ratio of the judgment of the Supreme Court in the

case of Swaran Singh & Ors. (supra), in my opinion, once the deceased had a

driving licence for a light motor vehicle, he was also otherwise competent to

drive the three wheeler scooter and which is of a lower category than an LMV,

and in any case no issue has been urged by the appellant-company before the


FAO No.37/2014                                                     Page 5 of 6
 Commissioner and no evidence is led that the different type of licence of the

deceased Umesh Kumar being for an LMV and not for a TSR is the main or

contributory factor with respect to causing of the accident. Therefore even the

second ground urged on behalf of the appellant does not have any merit.

10.          In view of the above, no substantial question of law arises for this

appeal to be entertained under Section 30 of the Employee's Compensation

Act, 1923 and therefore the appeal is dismissed, leaving the parties to bear their

own costs.




MARCH 26, 2014                                 VALMIKI J. MEHTA, J.

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