The Oriental Insurance Company ... vs Govindhya Devi And Others
2021 Latest Caselaw 1085 j&K

                                      h475




     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                             Reserved on : 06.09.2021
                                             Pronounced on: 10.09.2021

                                                    FAO(WC) No.23/2019
                                                    CM No.5530/2019


The Oriental Insurance Company Limited                          ...Appellant(s)

                          Through:-Mr. Sumit Bhatia, Advocate
      V/s
Govindhya Devi and others                                     ...Respondent(s)
                          Through:- Mr. Vipan Gandotra, Advocate for R-1 to 5


Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                 JUDGMENT

1. The instant appeal has been filed by the appellant-Insurance

Company challenging award dated 20.05.2019 passed by the

Commissioner under Employees' Compensation Act, 1923, whereby the

claimants/ respondent Nos. 1 to 5 have been held entitled to compensation

of an amount of Rs.5,39,040/-along with interest @ 12% per annum and

Rs.5,000/- as funeral expenses with respect to the deceased. The amount

has been made payable by the appellant-Insurance Company.

2. The facts leading to the filing of this appeal are that on 06.06.2014, a

tipper bearing Regd. No.JK02AC-3218 that was being driven by the

deceased-Ashok Kumar met with an accident resulting in his death. The

vehicle in question at the relevant time was insured with the appellant-

Insurance Company. Respondent No.6-Manjeet Singh happens to be the

owner of the offending vehicle. Respondent Nos. 1 to 5 i.e. claimants

happen to be the legal heirs/dependents of the deceased, who at the relevant

time was under the employment of respondent No.6.

3. After the death of the deceased, legal heirs/dependents i.e.

respondent Nos. 1 to 5 filed a petition claiming compensation under the

Employees Compensation Act before the Commissioner under the

Employees Compensation Act, 1923 (Assistant Labour Commissioner),

Jammu (hereinafter referred to as "the Commissioner"). The Commissioner

on the basis of the pleadings of the parties framed the following issues:-

―a) Whether the deceased ―Ashok Kumar‖ falls within the definition of ―employee‖ as prescribed under the provisions of E.C. Act, 1923? OPP

b) Whether the deceased met with an accident arising out of and during the course of his employment? OPP

c) What was the age and wages of the deceased at the time of accident? OPP

d) Whether the vehicle in question involved in accident was driven in violation of the terms and conditions of the insurance policy? OPR-1

e) Relief? O.P.Parties.‖

4. After recording of evidence, the Commissioner came to the

conclusion that the deceased-Ashok Kumar was an employee of respondent

No.6 and he met with an accident, which arose out of and during the course

of his employment. The Commissioner, after taking the wages of deceased

at Rs.7,000/- per month and his age as 45 years, assessed the compensation

and passed the impugned award.

5. The appellant has challenged the impugned award primarily on the

ground that the deceased-driver despite knowing that he was holding fake

driving license deliberately plied the offending vehicle thereby inviting risk

to his life, as such, the Commissioner was not justified in awarding

compensation in favour of respondent Nos. 1 to 5. It has been contended

that the Commissioner despite having come to the conclusion that driving

license of the deceased was fake, did not absolve the appellant-Insurance

Company from its liability to indemnify the insured.

6. I have heard learned counsel for the parties and perused the record of

the case.

7. The first contention that has been raised by the learned counsel for

the appellant that the Commissioner, after clearly recording in the

impugned award that the deceased-driver himself endangered his safety

and life by inviting unnecessary calamity by engaging in driving of vehicle

when he knew that he has not a valid driving license, went on to pass the

award in favour of the dependents of the deceased, which, according to

appellant could not have been done. In support of his contention learned

counsel for the appellant-Insurance Company has relied upon judgment of

the Supreme Court in the case of Mackinnon Mackenzie and Company

Private Limited v. Ibrahim Mahammed Issak, 1970 AIR SC 1906.

8. In order to test the merits of the contention of the appellant it will be

apt to notice the relevant provision of Employees Compensation Act.

Section 3 of the Employees Compensation Act deals with the employer's

liability to pay compensation. Sub Section (1) of the said provision is the

relevant to the context and the same reads as under:-

―3. Employer's liability for compensation.- (1) If personal injury is caused to a employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

Provided that the employer shall not be so liable -

(a) in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days;

(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to--

(i) the employee having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or

(iii) the wilful removal or disregard by the *[employee] of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee.

.......................‖

9. From a perusal of the above provision, it is clear that employer is

liable to pay compensation to its employee, if he received personal injury

in accident arising out of and in the course of his employment. The

employee is disentitled to receive compensation in cases where the injury

has not resulted in total or partial disablement for a period exceeding three

days and where the injury is attributable to the employee being drunken or

under the influence of drugs at the relevant time or he willfully disobeys

the orders expressly given or a rule expressly framed with regard to the

safety of the employee and lastly when there is willful removal or disregard

by the employee of any safety guard or other device. Even these exceptions

are not applicable to a death case.

10. In the instant case, the accident has resulted in death of the deceased.

Even, if it is assumed that the deceased deliberately took risk of driving the

vehicle in question regarding which he did not hold a valid and effective

driving license, his dependents cannot be denied compensation so long as

the accident which resulted in death of the deceased arose out of and in the

course of employment of the deceased with his employer.

11. No amount of negligence in doing an employment job can change

the workman's action into a non-employment job and contributory

negligence cannot be a defence. I am supported in my aforesaid view by

judgment of High Court of Orissa in the case of Padam Debi v.

Raghunath Ray, 1950 AIR Orissa 207. Even the judgment of the

Supreme Court relied upon by the learned counsel for the appellant goes on

to lay down the ratio, that if the accident had occurred on account of a risk

which is an incident of the employment, the claim must succeed.

12. In the instant case, it has been amply established by evidence led

before the Commissioner that the deceased was under the employment of

respondent No.6 and performing job of a driver at the relevant time. Thus,

merely because he was driving the vehicle on the basis of a fake driving

license, his dependents cannot be denied compensation, as the accident

which resulted in his death had taken place during the course of his

employment.

13. Secondly, it has been contended by the learned counsel for the

appellant that the Commissioner despite coming to the conclusion that

driving license of the deceased was fake, burdened the Insurance Company

with payment of compensation and completely exonerated the insured. The

issue has been lucidly dealt with by the Commissioner in the impugned

award by observing that there is nothing on record to show that the

employer knew that the basic license in favour of the deceased was fake.

The Commissioner, on the basis of material and evidence on record, has

concluded that before employing the deceased as driver, the employer had

verified the endorsements on the driving license of the deceased from the

Licensing Authority, Reasi and found the same genuine and authentic. In

these circumstances, even though, the basic license may have been found to

be fake, employer had taken all the precautions which a reasonable

employer would take before employing a as driver inasmuch as he had

even verified the endorsements on the license. An employer is not expected

to check the authenticity of all the endorsements and the entries on driving

license from different Licensing Authorities before employing a driver. The

law expects an employer to take so much care in employing a driver as a

prudent man would do and not that an employer should run from one

Licensing Authority to another to check the genuineness and authenticity of

all the entries of the driving license.

14. In the face of aforesaid circumstances, the Commissioner was well

within its jurisdiction to hold that there was no evidence on record to show

that there was any deliberate or intentional breach of policy condition on

part of the employer. The Supreme Court in the case of National

Insurance Company Limited v. Swaran Singh and others, (2004) 3

SCC 2971 has categorically held that mere absence, fake or invalid driving

licence are not in themselves defences available to the insurer against either

the insured or the third parties. The Supreme Court went on to hold that in

order to avoid its liability towards insured, the insurer has to prove that the

insured was guilty of negligence and failed to exercise reasonable care in

the matter of fulfilling the condition of the policy regarding use of vehicles

by duly licensed driver.

15. In the instant case, it cannot be stated that the employer had not

taken reasonable care and that he had deliberately committed breach of

policy conditions. Therefore, the Commissioner has rightly held that there

has been no deliberate breach of policy conditions on part of the employer,

as such, the insurer is liable to pay the compensation.

14. For the foregoing reasons, no substantial question of law arises in

this appeal. There is no good ground to interfere with the impugned award.

The appeal being without any merit is dismissed, accordingly.

(Sanjay Dhar) Judge

Jammu 10.09.2021 Vinod.

Whether the order is speaking :Yes Whether the order is reportable :Yes