M/S. The New India Assurance Co. ... vs Smt. Champa Devi And Ors.
2014 Latest Caselaw 1715 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No.320/2012 & C.M. No.12975/2012 (stay)

%                                                     31st March, 2014

M/S. THE NEW INDIA ASSURANCE CO. LTD.        ....Appellant
                   Through: Mr. D.D. Singh, Advocate.


                          VERSUS


SMT. CHAMPA DEVI AND ORS.                                   ...... Respondents
                  Through:                Mr. Puneet Parihar, Advocate for
                                         respondent No.6.

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 by the appellant/insurance company

under Section 30 of the Employee's Compensation Act, 1923 (hereinafter

referred to as 'the Act') impugning the judgment of the Commissioner dated

29.3.2012 which has allowed the claim petition filed by the respondent nos.1

to 5 herein, and who are the dependants of the deceased Sh. Raju Paswan.

2.           The facts of the case are that the deceased Sh. Raju Paswan was

employed as a driver by the respondent no.6 herein (respondent no.1 before

the Commissioner) for driving his truck bearing no.HR-63-A-1249. On
FAO No.320/2012                                                   Page 1 of 6
 30.5.2008, the deceased Sh. Raju Paswan was driving the truck on the trip

from Mundhra Port, Kandla (Gujrat) to Delhi. The truck was loaded with

tyres. At 6.30 A.M. near Alwar in Rajasthan, the truck met with an accident

from a container coming from the opposite side bearing no.HR-G-0558 and

which was said to be driven in a rash and negligent manner. As a result of

the accident, the deceased Sh. Raju Paswan sustained serious burn injuries

and died on the same day after being admitted to the hospital at Ajmer for

treatment. FIR no.76 dated 30.5.2008 was registered with respect to the

accident. The claim petition was therefore filed seeking compensation under

the Act.

3.             The Commissioner has held that the relationship of employer

and employee was established as also the aspect with respect to there being a

valid insurance policy.      Commissioner therefore applied the statutory

formula and awarded compensation of Rs.4,33,820/- alongwith interest @

12% per annum. The relevant observations of the Commissioner read as

under:-

          "Issue No.1
     (i) The case of the petitioner is that her son deceased Raju Paswan was
     employed with respondent No.1 as driver No.HR-63-A-1249 and
     during the course of his duties died on 30.5.2005 in the accident
     therefore, claimants are entitled for compensation.
     (ii) Respondent No.2 has contended that claimant has not filed any
     documentary evidence in support of her claim application, though,
FAO No.320/2012                                                  Page 2 of 6
   Respondent No.2 in its Written Statement in one line has admitted the
  relationship and in another line has denied the same. In the given
  situation the factum of death is not proved beyond doubt but the
  circumstance are suggestive that the death was caused due to accident.
  In the given situation inference can be drawn. The three judges Bench
  of The Hon'ble Supreme Court of India in the case of Mackinnon
  Mackenzie and Co. Pvt. Ltd., V/s. Ibrahim Mahmood Isshak sited at
  1969 ACJ 422 held that, "As in a case of death caused by accident the
  burden of proof rest upon the workman to prove that the accident arose
  out of employment as well as in the course of employment. But this
  does not mean that workman who come to court for relief must
  necessarily prove it by direct evidence. Although, the onus of the
  proving that the injury by accident arose both out of and in the course
  of employment rest upon the applicant, these essential may be inferred
  with the facts proved justify the inference. On the one hand the
  Commissioner must not surmise conjecture or guess on the other hand,
  he may draw an inference from the proved facts as long as it is a
  legitimate inference.
  (iii) It will be worthwhile to mention that the workmen's compensation
  Act, 1923, is a social legislation and it is generally accepted that
  various provisions of the act ought to be received liberal interpretation.
  The act being welfare legislation made for the interest of the poor
  workman, even if any, particular provision of the Act is capable of
  interpretation, that which is more favorable to the persons for whose
  benefit the legislation has been made should be adopted. The rights of
  the workman deserve to be treat generously while applying statutory
  provision.
  (iv) In the light of the above discussions I have no hesitance to draw the
  inference that deceased Raju Paswan was employed by respondent
  No.1 as driver, more so because there was no contrary evidence led by
  the Respondent.
  Issue No.2
  (i) The factum of accident is not denied by the parties therefore, on the
  basis of the admitted fact it is held that deceased Raju Paswan sustained
  injuries and died during the course of employment.
  10. The petitioner has stated in her claim application that her son
  deceased Sh. Raju Paswan was employed with respondent No.1 and
  drawing of Rs.4000/- PM and Rs.50 daily as perks and was of aged 25
  years at the time of accident, in the given situation the petitioner is
FAO No.320/2012                                                 Page 3 of 6
      entitled the compensation. The Minimum wages at the time of accident
     for a skilled worker Rs.4057/-, whereas, the wages as per section 4 sub-
     section 1 explanation 2 are to be taken as Rs.4000/-.
         216.91X4000X50/100 = Rs.4,33,820/-
     11. The respondent No.2 being insurer of the Truck is hereby directed
     to deposit the amount of compensation alongwith interest @ 12% per
     annum from the date of accident within 30 days for further
     disbursement to the claimant through Pay order in favour of "CWC
     South West District" failing which the same will be recovered as
     arrears of land revenue as per the provisions of the section 31 of the
     Act.
     Given under my hand seal of this court 29th day of March 2012."

4.             On behalf of the appellant/insurance company, it was argued

before this Court that since the driving licence of the deceased was found to

be fake/forged, and this aspect was deposed to and proved in the evidence of

the appellant through its officer Sh. Rakesh Singh, the claim petition ought

to have been dismissed and not allowed. It is argued in alternative that in

case the claim petition had to be allowed, the appellant/insurance company

should be given rights of recovery against the owner of the vehicle/employer

i.e respondent no.6 herein.

5(i)           The law with regard to whether the insurance company is

discharged from its liability on account of the employee having a

fake/forged driving licence is now settled by the Supreme Court as per its

judgment in the case of National Insurance Co. Ltd. Vs. Swaran Singh &

Ors. (2004) 3 SCC 297. In this judgment, Supreme Court has held that an

FAO No.320/2012                                                   Page 4 of 6
 owner of a vehicle does not have to make any detailed enquiry at the time of

employing of a driver in order to ensure that the driving licence is not a fake

or a fabricated one. The employer satisfies himself simply by checking the

licence which is given by the employee/driver to him.

(ii)            In the present case, the employer/respondent no.6 came into the

witness box and led his evidence by way of affidavit. Appellant did not

cross-examine the employer, much less on the aspect that the

employer/respondent no.6 had not made enquiries with respect to valid

licence of the deceased Sh. Raju Paswan.

(iii)           Accordingly, applying the ratio of the Supreme Court in the

case of Swaran Singh (supra) I hold that the insurance company cannot

avoid its liability.

(iv)            It is clarified that in case the driving licence is a forged and

fabricated document, then, the insurance company can in accordance with

the ratio of the judgment in the case of Swaran Singh (supra) initiate

appropriate proceedings against the respondent no.6, and in such

proceedings, the respondent no.6 will have all rights in accordance with law

to show that the claim made by the appellant/insurance company against the

employer/respondent no.6 is not in accordance with law or the facts of the

present case.
FAO No.320/2012                                                   Page 5 of 6
 6.           In view of the above, there is no merit in the appeal, and the

same is therefore dismissed subject, of course, to the observations of the

right of the appellant/insurance company against the respondent no.6.

Parties are left to bear their own costs.




MARCH 31, 2014                              VALMIKI J. MEHTA, J.

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