M/S Oriental Insurance Company ... vs Smt Pattammal
2022 Latest Caselaw 1331 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31ST DAY OF JANUARY, 2022

                          BEFORE

       THE HON'BLE MR.JUSTICE P.KRISHNA BHAT

                  M.F.A.No.1785/2010 (WC)

BETWEEN:

M/S. ORIENTAL INSURANCE
COMPANY LIMITED,
DIVISIONAL OFFICE - 5,
PATTI PLAZA, VATAL NAGARAJ ROAD,
BANGALORE.
NOW REPRESENTED BY ITS
REGIONAL OFFICE NO.44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE - 560 025.                     ... APPELLANT

(BY SRI.A.M.VENKATESH, ADVOCATE)

AND:

1.     SMT. PATTAMMAL,
       W/O LATE SAMPANGI,
       MAJOR,
       R/AT NO.189 'A' LANE,
       ANJANAPPA GARDEN,
       MYSORE ROAD,
       BANGALORE - 560 018.

2.     KUM. MANORAMANI
       D/O LATE SAMPANGI,
       MAJOR,
       R/AT NO.189, 'A' LANE,
       ANJANAPPA GARDEN,
       MYSORE ROAD,
       BANGALORE - 560 018.
                                    2


3.    SRI. N. MANI,
      S/O NARAYANA,
      NO.P-135, 4TH A CROSS,
      NAGAPPA BLOCK,
      BANGALORE - 560 021.                           ...RESPONDENTS

(BY SRI.R.CHANDRASHEKHAR, ADVOCATE FOR R1 - 2;
    R3 - SERVED)

     THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
ORDER DATED 31.8.2009 PASSED IN WCA.FC.CR.NO.36/2007
ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN COMPENSATION, SUB DIVISION - 2,
BANGALORE, AWARDING A COMPENSATION OF RS.4,07,700/-
WITH INTEREST @ 12% P.A.

     THIS MFA COMING ON FOR FURTHER HEARING THROUGH
VIDEO CONFERENCING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

This appeal is at the instance of the insurance

company calling in question the correctness and the

validity of the award dated 31.08.2009 in

WCA.FC.CR.No.36/2007 passed by the learned Workmen's

Compensation Commissioner, Bengaluru Sub Division-III,

Bengaluru. The substantial question of law raised for

consideration in this appeal is as follows:

"Whether the Commissioner is justified in holding Appellant/Insurance Company is liable to pay compensation even though the driver of auto rickshaw was not holding a valid and effective driving license at that time of accident?"

2. The above substantial question of law arises in

the following factual matrix:

One Raju was working as a Driver in an Auto

Rickshaw bearing registration No.KA-02-B-5930 owned by

respondent No.3 - Sri.N.Mani in this appeal and insured

with the appellant. On 25.12.2004 at about 02.45 p.m.,

while he was driving the said auto rickshaw on Hebbal Ring

Road near Nagawara Tank, he lost control over the vehicle

and it capsized and on account of the injury suffered, he

died on 26.12.2004 in Sagar Apollo Hospital.

3. The claim petition is filed by his mother and

younger sister who are respondent Nos.1 and 2 in this

appeal. The owner remained exparte and the appellant-

insurance company contested the proceedings by filing

written statement, denying the material averments made

in the claim petition.

4. During the trial, claimant No.2 examined

herself as PW.1 and got marked the documents at Exs.P1

to P9. The appellant- insurance company examined one

witness and got marked the documents at Exs.R1 and R2.

5. After hearing the learned counsel on both sides

and perusing the records, the learned Tribunal allowed the

claim petition in-part and awarded a compensation of

Rs.4,07,700/- with interest thereon at the rate of 12% per

annum.

6. Learned counsel for the appellant-insurance

company submits that the evidence clearly discloses that

the deceased was the driver in respect of the insured auto

rickshaw and was not having any driving license at the

time of the accident, inasmuch as, the driving license

earlier held by him had expired and it was not renewed

and therefore, the owner was negligent in entrusting the

vehicle to the deceased and in that view of the matter, the

appellant-insurance company is not liable to pay the

compensation awarded. In support of the said submission,

he places reliance on the decision of the Hon'ble Supreme

Court in the case of BELI RAM VS. RAJINDER KUMAR

AND ANOTHER reported in 2020 SCC OnLine SC 769

also reported in 2020 ACJ 3000. He therefore, submits

that the appeal deserves to be allowed and the appellant is

entitled to be exonerated from the liability.

7. Per contra, learned counsel for the respondent

have placed reliance on the decision of the Hon'ble

Supreme Court reported in the case of GURMAIL SINGH

VS BAJAJ ALLIANZ GENERAL INSURANCE COMPANY

LIMITED AND ANOTHER reported in 2019 ACJ 713 and

urged that even though the deceased was not holding

license at the time of the accident, the insurance company

is liable to pay the compensation inasmuch as there was a

valid policy of insurance in respect of the vehicle. It is

therefore urged that the award passed by the learned

Commission is right and justified and there is no merit in

the appeal and it requires to be dismissed.

8. I have given my anxious consideration to the

submissions urged on both the sides and I have perused

the records.

9. The records produced before the learned

Commissioner and the discussions made on the same by

him clearly show that the deceased Raju was the driver at

the material point of time and was not having valid driving

license to drive the said vehicle at the time of the accident,

inasmuch as the driving license earlier held by him had

lapsed. It is therefore evident that the insured owner had

not taken sufficient care and caution to ensure that while

entrusting the vehicle to the deceased for driving the

same, he had a current and subsisting valid and effective

driving license to drive the same. While it is true that in

the earlier decision in GURMAIL SINGH's case (Supra),

the Hon'ble Supreme Court has held that even in a case

where the driver was not holding valid driving license and

when a claim petition is made under the Employee's

Compensation Act, 1923, insurance company is liable to

pay the compensation, if there was a valid policy of

insurance; the subsequent three judge bench of the

Hon'ble Supreme Court in BELI RAM's Case (Supra) has

observed as follows:

"23. When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years. The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are, however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger 11 (supra) issues could be debated in other proceedings.

25. We are not aware whether any other proceedings have been initiated or not, at least, none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in not renewing the driving licence would be present, but the lack of care of the appellant as the employer would also arise. We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount. Proceedings here being under the

Compensation Act, the consequences are not flowing to the first respondent as the initial negligent person."

10. In view of the above, it is clear that the

insurance company is not liable to pay the compensation

as the insured owner had not taken sufficient care and

caution to entrust the vehicle to the deceased driver by

ensuring that he was holding a current and subsisting valid

and effective driving license.

11. In that view of the matter, the points for

substantial question of law framed is answered in favour of

the insurance company and against the claimants. Hence,

the following;

ORDER

The above appeal is allowed.

The award dated 31.08.2009 in

WCA.FC.CR.No.36/2007 passed by the learned

Workmen's Compensation Commissioner,

Bengaluru Sub Division-III, Bengaluru is set

aside to the extent liability fastened on the

insurance company.

The amount if any deposited by the appellant shall

be refunded to the Court below.

Office is directed to transmit the records to the Court

below.

Sd/-

JUDGE

NR/-