Jharkhand High Court

Reliance General Insurance ... vs Nanhki Devi on 13 September, 2022

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                                                                    C.O. No. 5 of 2014


IN THE HIGH COURT OF JHARKHAND AT RANCHI
              C.O. No.5 of 2014
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Reliance General Insurance Company Limited, having its office at Reliance Centre, 19 Walchand Hirachand Marg, Ballard Estate, Post. Mumbai, Pincode-400001 (Maharashtra), having its office at 49, Dobson Road, 2nd Floor, Howrah, through its Regional Legal Manager Shri Abhishek Dubey, Son of Mr. B.K. Dubey, Residing at Garaiahat, P.O. Garaiahat, P.S. Garaiahat, Dist. Kolkata.

.... .... .... Appellant Versus

1. Nanhki Devi, wife of late Bal Krishna Prasad Mandal alias Bal Krishan Prasad Mandal alias Jhari Mandal

2. Kranti Kumari, daughter of late Bal Krishna Prasad Mandal alias Jhari Mandal

3. Shrawan Mandal, son of late Bal Krishna Prasad Mandal alias Jhari Mandal

4. Babita Kumari, daughter of late Bal Krishna Prasad Mandal alias Jhari Mandal

5. Suganti Kumari, daughter of late Bal Krishna Prasad Mandal alias Jhari Mandal

6. Kastari Kumari, daughter of late Bal Krishna Prasad Mandal alias Jhari Mandal

7. Vuti, wife of late Fouda Mandal The applicant nos.2 to 6 are presently minor as such they are being represented through their mother and natural guardian as well as next friend namely Nankhi Devi, the applicant no.1 herein All resident of village Keshwari, P.O. Keshwari, P.S. Sariya (Bagodar), Dist. Giridih (Jharkhand)

8. Manohar Singh, son of Sri Nand Kishore Singh, resident of village Basta Cola, Sonar Basti, Post Dhansar, P.S. Jharia, Dist. Dhanbad (Jharkhand)

9. Reliance General Insurance, Anil Dhirubhai Ambani Group, through Branch Manager, Post + P.S. + Dist. Dhanbad

10. Reliance General Insurance Co. Ltd., 570 Naigaum Cross Road, next to roagal Industrial Estate, Wada (West) Mumbai-4000311 (Maharastha)

11. Reliance General Insurance Co. Ltd., 3rd Floor, Chandra Kali Bhawan, M-5, City Centre, P.O. & P.S. Bokaro Steel, Dist. Bokaro-827004 .... .... .... Respondents

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For the Cross-Objector : Mr. A.K. Das, Advocate : Ms. Swati Shalini, Advocate For the Respondents : Mr. Arvind Kr. Lall, Advocate : Mr. Sanjay Piprawall, Advocate : Mr. Rakesh Ranjan, Advocate

PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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C.O. No. 5 of 2014

By the Court:-

1. Heard the parties.

2. This cross-objection is directed against the order dated

26.11.2013 passed by the Labour Court-cum-Workmen Compensation

Commissioner, Deoghar in W.C. Case No.58 of 2011 whereby and

where under, the Labour Court-cum-Workmen Compensation

Commissioner, Deoghar has awarded a sum of Rs.3,70,000/- to the

claimants with interest at the rate of 12% per annum in case the

awarded amount is not paid within a month from the date of the said

order.

3. The brief facts of the case is that the deceased-Bal Krishna

Prasad Mandal @ Bal Kishan Prasad Mandal @ Jhari Mandal died

during the course of his employment with the opposite party no.1-

respondent no.8 herein owner of the truck where he was engaged as a

driver. The deceased was getting a salary of Rs.4,000/- per month and

Rs.50/- per day as khorakhi. The deceased was aged about 38 years at

the time of his death.

4. The opposite party no.1--respondent no.8 herein owner of

the vehicle in his written statement admitted before the Labour Court-

cum-Workmen Compensation Commissioner, Deoghar that he

employed the deceased driver to drive his truck and the deceased was

having a valid and effective driving licence. He further pleaded that

the vehicle was insured by the appellant-opposite party nos.2 to 5-

insurance company. Hence, the insurance company is liable to pay the

compensation by way of indemnification of the opposite party no.1-

respondent no.8 herein.

5. The appellant-insurance company denied the relationship of

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employer and employee between the owner of the truck and the

deceased driver and also pleaded that the deceased did not possess

any valid and effective driving licence at the time of occurrence and

the appellant-insurance company did not admit the insurance policy.

6. The Labour Court-cum-Workmen Compensation

Commissioner, Deoghar on the basis of rival pleadings of the parties

framed the following six issues:-

(1) Is application of the claimants maintainable?

(2) Whether the claimants got valid cause of action of

the application?

(3)Whether the death of driver Bal Krishna Prasad

Mandal caused during the course of employment of

Manohar Sing, while driving truck no. JH 10S-2399

under the instruction of his employer on 06.12.2009 to

08.12.2009?

(4) Whether the deceased driver was under the age of

38 years and was getting salary of Rs.4,000/- per

month plus Rs.50/- per day as khoraki?

(5) Whether the O.P. owner possessed all vehicular

documents such as Registration certificate, driving

license, Tax token permit, Insurance policy etc. on the

alleged date of accident?

(6) Whether the applicants are entitled to claim? If so,

from whom and to what extent?

7. The Labour Court-cum-Workmen Compensation

Commissioner, Deoghar first took up issue nos. 1, 2 and 3 together

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and after considering the evidence in the record i.e. the deposition of

two witnesses examined by the applicants and the documents which

have been marked as Ext. 1 to Ext. 6 as well as Ext. X came to the

conclusion that the deceased-Bal Krishna Prasad Mandal @ Bal Kishan

Prasad Mandal @ Jhari Mandal was on duty at the time of his death

and he died in course of his employment and the claimants are

dependents on his income and their application for compensation is

maintainable. Thereafter the Labour Court-cum-Workmen

Compensation Commissioner, Deoghar took up issue nos. 4 to 6 and

did not consider khoraki as part of the salary and assesses his age to be

40 years and applied the multiplier 184.17 and the total compensation

amount comes out to Rs.3,68,340/- and rounded the said amount to

Rs.3,70,000/- and passed the said order.

8. Mr. Amit Kr. Das, learned counsel for the cross-objector

assisted by Ms. Swati Shalini submits that the learned Labour Court-

cum-Workmen Compensation Commissioner, Deoghar erred by not

absolving the insurance company of the liability to pay the quantum

of compensation to the claimants in view of the fake driving licence of

the driver of the vehicle. Hence, it is submitted by the learned counsel

for the cross-objector that the impugned order be set aside after

formulating a proper substantial question of law.

9. Mr. Arvind Kr. Lall, learned counsel for the respondent nos.1

to 7 and Mr. Sanjay Piprawall, learned counsel for the respondent no.

8 on the other hand defended the prayer for absolving the insurance

company to pay the liability of the compensation amount. It is next

submitted by the learned counsel for the respondents that in the

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absence of any pleading put forth by the insurance company that the

owner of the vehicle had not taken any care before the vehicle was

given to the driver to drive it and that he was guilty of negligence and

failed to exercise reasonable care in the matter of fulfilling the

condition of the policy regarding use of the vehicle by a duly licensed

driver, the liability of the insurance company to pay the compensation

qua the owner of the vehicle cannot be doubted.

10. Having heard the submissions made at the Bar and after

going through the materials in the record, it is pertinent to mention

here by now it is a settled principle of law as has been held in the case

of National Insurance Co. Ltd. Vs. Tulna Devi & Ors. reported in (2009)

ACJ 581, paragraph nos.5 and 21 of which reads as under:-

5. In our view, the case is fully covered by a decision of this Court in the case of National Insurance Co. Ltd. v. Swaran Singh, rendered by a three-Judge Bench of this court reported in 2004 ACJ 1 (SC), wherein this court in para 102 (iii) at page 33 has held as under:

"(iii) the breach of policy conditions, e.g. disqualification of driver of invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. 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 or one who was not disqualified to drive at the relevant time.

21. Having hard the submissions made at the bar and after going through the records, I find force in the submission of learned counsel for the respondent that in view of the ratio of the case of Swarna Singh (supra), in order to absolve itself from the liability of the insurance policies that besides the evidence to establish that the driving licence of the driver of the offending vehicle was fake, it was incumbent upon the Insurance Company to further plead and prove that the insured owner of the offending vehicle was having knowledge of the fact that the driver did not have valid driving licence and even after knowing that the insured owner of the offending vehicle handed over the vehicle for being driven and in the absence of such evidence, I do not find any force in the submission of the learned counsel for the appellant so far

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as first ground is concerned. Hence the insurance company is liable to pay the entire amount of the award."

11. It is also a settled principle of law as has been held by the

Hon'ble Supreme Court of India in the case of Pappu & Ors. v. Vinod

Kumar Lamba & Anr. reported in (2018) 3 SCC 208, paragraph nos.11

and 12 of which reads as under :-

"11. The question is: whether the fact that the offending vehicle bearing No. DIL 5955 was duly insured by Respondent 2 insurance company would per se make the insurance company liable?

12. This Court in National Insurance Co. Ltd. has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time." (Emphasis supplied)

12. It is also a settled principle of law as has been held by the

Hon'ble Supreme Court of India in the case of United India Insurance

Co. Ltd. v. Lehru reported in (2003) 3 SCC 338, paragraph no.20 of

which 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 would 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 RTOs, 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 noticed 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 Skandia [(1987) 2 SCC 654] , Sohan Lal Passi [(1996) 5 SCC 21 : 1996 SCC (Cri) 871] and Kamla [(2001) 4 SCC 342 :

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2001 SCC (Cri) 701] cases. We are in full agreement with the views expressed therein and see no reason to take a different view."

13. Admittedly, in this case, the cross-objector-insurance

company has neither pleaded nor proved that the insured owner of

the offending vehicle was having knowledge of the fact that the driver

did not have valid driving licence and even after knowing that the

insured owner of the offending vehicle handed over the vehicle for

being driven and in the absence of such evidence, there is no force in

the submission of the learned counsel for the appellant.

14. Otherwise also it is a settled principle of law that appeal is a

creation of the statute and cross objection has all the trappings of an

appeal. As the provisions of the Code of Civil Procedure are not

applicable to the appeals or proceedings under the

Workmen's Compensation Act, 1923 and there is no provision in the

Workmen's Compensation Act, 1923 for filing any cross objection pari

materia to the provision in Order XLI, rule-22 of the Code of Civil

Procedure, 1908, hence in the considered view of this Court, to cross

objection is not maintainable in an appeal filed under Section 30 of

Workmen's Compensation Act, 1923 which reads as under:

30. Appeals.-

(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:--

(a) an order awarding as compensation a lump sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;

(aa) 1 an order awarding interest or penalty under section 4A;]

(b) an order refusing to allow redemption of a half- monthly payment;

(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub- section (2) of section 12; or

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(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees: Provided, further, that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:

Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. (Emphasis supplied)

more so as the Parliament has thought it fit to restrict the scope of the

appeal only to substantial questions of law, being a welfare legislation.