Gauhati High Court
National Insurance Co Ltd vs Jadu Gogoi And Anr on 10 May, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010235992013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/35/2013
NATIONAL INSURANCE CO LTD
SUBSIDIARY OF GENERAL INSURANCE CORPORATION OF INDIA
REGISTERED HEAD OFFICE AT 3, MIDDLETON STREET, CALCUTTA 700071
REPRESENTED BY THE ASSTT. MANAGER, GAUHATI REGIONAL OFFICE,
BHANGAGAR, GUWAHATI 781005
VERSUS
JADU GOGOI and ANR
S/O SRI GANGADHAR GOGOI, R/O VILL. PANJAN, P.O. and P.S.
SARUPATHAR, DIST. GOLAGHAT, ASSAM.
2:JITENDRA SAIKIA
S/O SRI BINESWAR SAIKIA
R/O VILL. PONKA GAON
P.O KANAIGHAT
DIST. GOLAGHAT
ASSAM
For the Petitioner(s) : Mrs. R. D. Mozumdar, Advocate
For the Respondent(s) : Mr. S. Dutta, Sr. Advocate
: Ms. S. Mochahari, Advocate
Date of Hearing : 10.05.2024
Date of Judgment : 10.05.2024
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BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mrs. R. D. Mozumdar, the learned counsel appearing on behalf of
the Appellant and Mr. S. Dutta, the learned Senior counsel assisted by Ms. S.
Mochahari, the learned counsel appearing on behalf of the Respondents.
2. This is an appeal under Section 30 of the Workmen's Compensation Act,
1923 presently the Employee's Compensation Act, 1923 challenging the award
dated 14.12.2012 in W.C. Case No.51/2008 whereby the learned Commissioner
for Employee's Compensation at Golaghat (hereinafter referred to as "the
learned Tribunal") had awarded an amount of Rs.3,07,540/- along with simple
interest @9% per annum on the total amount of compensation from the date of
filing of the petition till the date of realization. It was also mentioned that the
Appellant herein will be liable to pay the said compensation along with interest
to the claimant and the amount was directed to be deposited within 30 (thirty)
days from the date of the said order.
3. This Court vide an order dated 15.03.2013 admitted the instant appeal by
formulating two substantial questions of law which are reproduced herein
under:
"1. Whether, in view of the specific requirement of the policy regarding valid
driving license, if the driver was not holding a valid and effective driving license
to drive the vehicle and he had a driving license which authorized him to drive
private vehicle and not as paid driver, the appellant was liable to pay any
compensation to the respondent as per the terms of the policy of the vehicle?
2. Whether, when a fact is not in dispute, additional evidence is to be led to
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prove the same?"
4. The first substantial question of law relates to as to whether the Appellant
Insurance Company would be liable if the driver was not holding a valid and
effective driving license to drive the vehicle inasmuch as the driver had a driving
license which authorized him to drive private vehicle and not as paid driver.
5. This Court has duly taken note of the judgment of the learned Tribunal
wherein the very aspect of the matter has been duly considered and it was
opined that the Employee's Compensation Act, 1923 did not require that the
claimant is required to prove whether he has possessed any driving license
either private or profession. It was opined that the claimant was only required
to prove that he was an employee/workman and thereupon the owner and the
insurer are jointly and severely liable for compensation if the accident occurs
during the course employment. In the opinion of this Court, the said opinion
rendered by the learned Tribunal is inconsonance with the judgment of the
Supreme Court in the case of S. Iyyapan Vs. United India Insurance Company
Ltd. and Another reported in (2013) 7 SCC 62 and in that regard, this Court finds
it very relevant to reproduce paragraph Nos. 17, 18 and 19 which are herein
under:
"17. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act,
it is evidently clear that in certain circumstances the insurer's right is
safeguarded but in any event the insurer has to pay compensation when a valid
certificate of insurance is issued notwithstanding the fact that the insurer may
proceed against the insured for recovery of the amount. Under Section 149 of
the Motor Vehicles Act, the insurer can defend the action inter alia on the
grounds, namely,
(i) the vehicle was not driven by a named person,
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(ii) it was being driven by a person who was not having a duly granted
licence, and
(iii) person driving the vehicle was disqualified to hold and obtain a driving
licence.
Hence, in our considered opinion, the insurer cannot disown its liability
on the ground that although the driver was holding a licence to drive a light
motor vehicle but before driving light motor vehicle used as commercial vehicle,
no endorsement to drive commercial vehicle was obtained in the driving licence.
In any case, it is the statutory right of a third party to recover the amount of
compensation so awarded from the insurer. It is for the insurer to proceed
against the insured for recovery of the amount in the event there has been
violation of any condition of the insurance policy.
18. In the instant case, admittedly the driver was holding a valid driving
licence to drive light motor vehicle. There is no dispute that the motor vehicle in
question, by which accident took place, was Mahindra Maxi Cab. Merely
because the driver did not get any endorsement in the driving licence to drive
Mahindra Maxi Cab, which is a light motor vehicle, the High Court has
committed grave error of law in holding that the insurer is not liable to pay
compensation because the driver was not holding the licence to drive the
commercial vehicle. The impugned judgment is, therefore, liable to be set
aside.
19. We, therefore, allow this appeal, set aside the impugned judgment of the
High Court and hold that the insurer is liable to pay the compensation so
awarded to the dependants of the victim of the fatal accident. However, there
shall be no order as to costs."
6. The above principles as laid down by the Supreme Court in the said
judgment in the opinion of this Court squarely applies inasmuch as the
Employee's Compensation Act, 1923 only mandates as regards entitlement of
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compensation if there is an employer/employee relationship. The said aspect of
the matter was duly proved on the basis of the evidence and that being a
finding of fact, this Court cannot disturb the said finding of fact in the present
proceedings. Under such circumstances, in the opinion of this Court, the said
substantial question of law does not arise. Be that as it may, if it is the case,
where the Appellant herein is of the opinion that the driver did not have the
licence, the Appellant herein would be at liberty to take appropriate steps
against the owner as envisaged under law. The above therefore answers the
first substantial question of law.
7. The second substantial question of law which has been framed is when the
fact is not in dispute, additional evidence is to be led to prove the same. In the
opinion of this Court, the said substantial question of law so formulated is
absolutely vague for which the same cannot be said to be a substantial question
of law involved in the instant appeal.
8. Taking into account the above, this Court finds no merit in the instant
appeal for which the instant appeal stands dismissed.
9. Before parting with the record, this Court makes it clear that the dismissal
of the instant appeal shall not preclude the Appellant Insurance Company to
take such steps against the owner, if otherwise permissible under law.
10. It has also been brought to the attention of this Court that the amount as
directed by the learned Tribunal had already been deposited before the Registry
of this Court pursuant to the order passed by this Court at the time of admission
of the instant Appeal. Under such circumstances, the Respondent No.1 who is
the claimant would be at liberty to seek release of the said amount by filing an
application before the Registry and the Registry shall after making proper
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verification and identification, release the amount to the Respondent
No.1/claimant.
JUDGE
Comparing Assistant
