The National Insurance Company ... vs D C Shankarappa S/O Late ...
2021 Latest Caselaw 8 Kant

                                  M.F.A.NO.3926/2011

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF JANUARY 2021

                       BEFORE

       THE HON'BLE MRS JUSTICE K.S.MUDAGAL

 MISCELLANEOUS FIRST APPEAL NO.3926/2011(WC)

BETWEEN:

THE NATIONAL INSURANCE COMPANY
LIMITED, DIVISIONAL OFFICE
REGIONAL OFFICE
NO.144, SHUBRAHAM COMPLEX
M.G.ROAD, BANGALORE - 560 001
REPRESENTED BY IT'S ADMINISTRATIVE
OFFICER KHAJ PASHA                 ... APPELLANT

(BY SRI.L.SREEKANTA RAO, ADV.)

AND:

  1. D.C.SHANKARAPPA
     S/O LATE CHANDRE GOWDA
     AGED ABOUT 48 YEARS

  2. KANTHA MANI
     W/O D.C.SHANKARAPPA
     AGED ABOUT 41 YEARS

  3. SOMASHEKAR
     S/O.D.C.SHANKARAPPA
     AGED ABOUT 25 YEARS
     RESPONDENT 1 TO 3 RESIDING AT
     NO.48, PEENYA SECOND STAGE
     HOTEL KUMAR BUILDING
     NELAGEDARANAHALLI
     NAGASANDRA POST
     BANGALORE

  4. B.H.PALAKSHA
     S/O HULEGOWDA
                                     M.F.A.NO.3926/2011

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      HONNASOMMANAHALLI
      HALLABEEDU HOBLI
      BELLUR TALUK,
      HASSAN DISTRICT              ... RESPONDENTS

(BY SRI.K.N.HARISH BABU AND ASSOCIATES, ADVOCATE
 FOR R1 TO R3; NOTICE TO R4 IS HELD SUFFICIENT
 V/O DTD:16.06.2014)

     THIS MFA IS FILED UNDER SECTION 30(1) OF W.C.
ACT AGAINST THE JUDGMENT DATED 05.01.2010 PASSED IN
WCA/FC/CR-39/2008 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN'S COMPENSATION,
SUB    DIVISION-1,    BANGALORE,     AWARDING     A
COMPENSATION OF RS.4,36,940/- WITH INTEREST @ 12%
P.A.

     THIS MFA COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT THROUGH PHYSICAL HEARING
DELIVERED THE FOLLOWING:

                   JUDGMENT

This appeal of the Insurer arises out of the award

dated 05.01.2010 in WCA/FC/CR-39/2008 passed by

the Workmen's Compensation Commissioner, Sub-

Division-1 Bengaluru. By the impugned award the

Commissioner has awarded compensation of

Rs.4,36,940/- under the Workmen's Compensation Act

to respondent Nos.1 to 3 due to the death of one

Pradeep.

2. Before the Commissioner, respondent Nos.1 to

3 were the claimants. Respondent No.4 was the first M.F.A.NO.3926/2011

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respondent and the appellant was the second

respondent. For the purpose of convenience, the

parties will be referred to henceforth with their ranks

before the Commissioner.

3. Claimant Nos.1 and 2 are the parents.

Claimant No.3 is the major brother of deceased

Pradeep. On 14.01.2008 at 10.30 p.m. when Pradeep

was driving the auto bearing No.KA-46-1155 that met

with an accident near Chikkonahalli gate,

Channarayapatna Taluk, Hassan District. In the

accident, Pradeep died and two others were injured.

Regarding the accident, Takeem Pasha inmate of the

vehicle filed complaint before Hirisave Police of Hassan

District.

4. On the basis of the said complaint, Hirisave

Police registered the case in Crime No.5/2008 as per

Ex.P1. On investigation, Hirisave Police charge-sheeted

Pradeep for the offences punishable under Sections 279,

338 and 304A of IPC. The first respondent was the

registered owner of goods auto bearing No.KA-46-1155.

M.F.A.NO.3926/2011

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During the said period, the said autorickshaw was

insured with the second respondent. The Insurance

policy covered the risk of the driver.

5. The claimants filed claim petition under Section

3 of the Workmen's Compensation Act, 1923 ('the Act'

for short) before the Commissioner contending that the

deceased Pradeep was working under the first

respondent as driver in the said goods autorickshaw.

They further claimed that the accident and death arose

out of and during the course of employment. They were

dependents of the deceased and thus claimed

compensation of Rs.10,00,000/-. They further claimed

that the second respondent being the Insurer was liable

to indemnify the damages.

6. The first respondent despite service did not

appear before the Commissioner and contest the

matter. The second respondent alone contested the

matter denying the jural relationship of employer and

employee, occurrence of the accident and death during

the course of employment and dependency of the M.F.A.NO.3926/2011

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claimants. The second respondent further contended

that at the time of the accident, Pradeep was not

holding valid driving licence, therefore, it was not liable

to indemnify the damages as there was breach of policy

condition.

7. The parties adduced evidence. The

Commissioner on hearing the parties by the impugned

award held that the accident arose out of and during the

course of employment and the claimants were the

dependents of the deceased. The commissioner further

held that respondent No.1 employed the deceased on

wages of Rs.4,000/- p.m. and limited that to Rs.2,000/-

having regard to Section 4(1) of the Act, applied 218.47

factor and awarded the compensation of Rs.4,36,940/-.

The Commissioner further held that the second

respondent has failed to prove that Pradeep was not

holding valid driving license and thus fastened the

liability to the second respondent.

8. Aggrieved by the said award, the second

respondent has preferred the above appeal. This Court M.F.A.NO.3926/2011

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admitted the appeal to consider the following

substantial question of law:

"In the absence of any evidence that deceased - Pradeep was holding driving license to drive the vehicle in question, whether the Commissioner was justified in fastening the liability to the appellant/Insurer?"

9. Sri L.Sreekanta Rao, learned counsel for the

Insurer submits that the claimants failed to produce the

driving licence of the deceased to show that as on the

date of the accident he was holding valid driving license.

He further submits that the Insurer cannot be called

upon to prove a negative fact that he was not holding a

valid driving licence, therefore, the Commissioner was

in error in fastening the liability to the Insurer.

In support of his contention he relies upon the

judgment of the Hon'ble Supreme Court in Beliram vs.

Rajinder Kumar1.

2020 SCC On line SC 769 M.F.A.NO.3926/2011

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10. Per contra, Sri K.N.Harish Babu, learned

counsel for the claimants submits that when the Insurer

claimed that victim was not holding valid driving licence,

the burden was on it to prove the said defence. He

further submits that Pradeep was not charge sheeted for

driving the vehicle without license and even the FIR was

not registered for such offence, therefore it was clear

that he was having driving licence at the time of the

accident. He further submits that even assuming that

the claimants were not able to prove that the deceased

was holding a driving licence as on the date of the

accident, the Insurer has to indemnify the damages and

recover the same from the first respondent-employer.

In support of his contention, he relies upon the

following judgments of the Hon'ble Supreme Court:

i) Gurmail Singh vs. Bajaj Allianz General

Insurance Co.Ltd and another2

ii) Pappu and others vs. Vinod Kumar Lamba

and another3

2019 ACJ 713

AIR 2018 SC 592 M.F.A.NO.3926/2011

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11. It is no doubt true that respondent No.1 did

not file any objection denying the jural relationship and

occurrence of the accident when Pradeep was driving

the vehicle. There was no dispute that the vehicle in

question belonged to respondent No.1. Under such

circumstances the Commissioner held that the first

respondent had authorized Pradeep to drive the vehicle

at the time of the accident as driver. Admittedly, the

Insurance Policy covered the risk of the driver.

12. Then the only question was whether at the

time of accident the deceased Pradeep was holding

driving licence to drive the vehicle. To claim the benefit

of the Insurance, the burden was on the first

respondent to show that he had employed a person

having a valid driving license. But, he did not discharge

the said burden. Though learned counsel for the

claimants' contends that it was for the Insurer to prove

that the deceased was not holding valid driving license,

when the claimants come to the Court, initial burden

was on them to show that Pradeep was holding valid M.F.A.NO.3926/2011

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driving licence. The Insurer cannot be expected to

prove a negative fact.

13. In Beliram's case it was affirmatively held

that at the time of the accident, the workman was not

holding a valid driving license. But, in the case on

hand, as the charge sheet was not filed against the

deceased for driving the vehicle without license, it

cannot be finally concluded that he was driving the

vehicle without the driving license. The Workmen's

Compensation Act being a beneficial and social

legislation, the dependents of the workman shall not be

deprived of the relief for the failure of the Insurer or the

employer to prove a fact conclusively. At the same

time, for the lapse on the part of the Insured, the

Insurer shall also not be penalized as the funds of the

Insurance company are the public funds.

14. In the judgment in Pappu's case, it was held

that even in case of failure of the claimants to prove the

fact of driver holding a driving license, the Insurer has

to indemnify the damages and recover the same M.F.A.NO.3926/2011

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from the Insured. That view was upheld by another

judgment of the Hon'ble Supreme Court in Gurmail

Singh's case which involved the case under the

Workmen's Compensation Act.

15. In Beliram's case the judgments in

Pappu's case and Gurumail Singh's case were not

referred. Para-9 of the said judgment indicates that the

counsel representing the parties in Beliram's case

represented before the Court that there was no direct

judgment on the point. Therefore it appears the

judgment in Pappu's case and Gurumail Singh's case

did not fall for consideration of the Hon'ble Supreme

Court in Beliram's case.

16. Under such circumstances, this Court is

persuaded to hold that the judgment in Pappu's case is

applicable. Even in the absence of direct evidence in

proof of Pradeep holding valid driving licence, the

Insurer shall have to pay the compensation to the

claimants and recover the same from the Insured.

M.F.A.NO.3926/2011

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Answering the substantial question of law

accordingly the appeal is partly allowed. The impugned

award of the Commissioner is modified as follows:

The appellant-Insurer shall pay the compensation

awarded by the Commissioner to the claimants and

recover the same from the Insured. The Insurer can

recover the damages given to the claimants in the same

proceedings before the Commissioner.

The amount in deposit shall be transmitted to the

jurisdictional Commissioner/Court.

Sd/-

JUDGE akc