Vishwanath Prasad Ji Chamadiya & ... vs Nirmala Shukla & Ors
2022 Latest Caselaw 13968 MP

                                                          1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                          BEFORE
                                            HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                 ON THE 31st OF OCTOBER, 2022

                                               MISC. APPEAL No. 1941 of 2003

                                     BETWEEN:-
                                1.   VISHWANATH PRASAD JI CHAMADIYA SO.SHRI
                                     RAMKUMAR     CHAMADIYA    OCCUPATION
                                     BUSINESS RESIDENT OF LIG 7 BODABAG,
                                     M.P.GRIH NIRMAN MANDAL COLONY, REWA,
                                     SIRMOUR CHOCK, REWA


                                2.   M/S.MAHESH     AUTOMOBILES,     SATNA
                                     THROUGH       PROPRIETOR      MAHESH
                                     CHAMADIYA, SEMARIYA CHOWK, SATNA

                                                                                 .....APPELLANTS
                                     (NONE FOR APPELLANTS)

                                     AND
                                1.   NIRMALA SHUKLA WIDOW OF LATE SUDAMA
                                     PRASAD SHUKLA OCCUPATION HOUSEWIFE

                                2.   SMT. PRABHAWATI @ PREMWATI, W/O W/O
                                     SHRI RAMNIWAS SHUKLA OCCUPATION:
                                     HOUSEWIFE GRAM AND POST-ERA, TAH.
                                     MAUGANJ (MADHYA PRADESH)

                                3.   SANDEEPA D/O D/O LATE SUDAMA PRASAD,
                                     AGED ABOUT 5 YEARS, GRAM AND POST- ERA,
                                     TAH. MAUGANJ (MADHYA PRADESH)

                                4.   BALRAM @ DINKAR S/O LATE SUDAMA
                                     PRASAD, AGED ABOUT 3 YEARS, GRAM AND
                                     POST-ERA TAH, MAUGANJ (MADHYA PRADESH)

                                5.   KRISHNA @ DEEPAK S/O LATE SUDAMA
                                     PRASAD, THROUGH GUARDIAN MOTHER SMT.
                                     NIRMALA SHUKLA, AGED ABOUT 1 YEARS,
                                     GRAM AND POST- ERA, TAH. MAUGANJ
Signature Not Verified
  SAN
                                     (MADHYA PRADESH)
Digitally signed by AMIT JAIN
Date: 2022.10.31 19:11:33 IST
                                6.   BRANCH MANAGER ORIENTAL INSURANCE
                                     COMPANY   LIMITED MAHARAJA HOTEL,
                                                                  2
                                        SHOPPING   COMPLEX,          JHIRIYA,     REWA
                                        (MADHYA PRADESH)

                                                                                           .....RESPONDENTS
                                        (RESPONDENT NOS.1 TO 5 BY SHRI ATUL KUMAR SHUKLA,
                                        ADVOCATE)
                                        RESPONDENT NO.6/INSURANCE COMPANY BY SHRI
                                        N.S.RUPRAH, ADVOCATE)

                                      Th is appeal coming on for hearing this day, t h e court passed the
                                following:
                                                                  ORDER

This Miscellaneous Appeal under Section 30 of the Workmen's Compensation Act, 1923 is filed by the Owner/Employer of the Offending Oil Tanker bearing registration No.MP-17C-0664, which met with an accident on

17.4.1998 resulting in death of their Driver Sudama Prasad on the spot, being aggrieved of order dated 28.7.2003 passed by learned Commissioner Under Workmen's Compensation Act-cum-Labour Court, Rewa in Case No.7/Workmen's Compensation Act/98 Fatal exonerating the Insurance Company from paying the amount awarded by Tribunal on the singular ground that Sudama Prasad was not having a driving license with an endorsement to drive a goods vehicle for carrying hazardous goods.

Though nobody is appearing on behalf of the appellants but this Court has perused the appeal memo and the grounds raised therein with the help of Shri N.S.Ruprah, learned counsel for the respondent No.6/Insurance Company, who, in his turn, supports the impugned order dated 28.7.2003 passed by learned Commissioner Under Workmen's Compensation Act-cum-Labour Court, Rewa in Case No.7/Workmen's Compensation Act/98 and submits that

Signature Not Verified Hon'ble the Supreme Court in Oriental Insurance Company Limited versus SAN

Sony Cheriyan (1999) 6 SCC 451 has maintained the order of the District Digitally signed by AMIT JAIN Date: 2022.10.31 19:11:33 IST

Consumer Forum, Alappuzha setting aside the orders of the State Consumer

Commission and the National Consumer Commission respectively on the ground that the vehicle in question in which the Ethyl Ether was transported, will come within the definition of a solvent and is in the form of a medicine, which is used as anesthetic. It is also held that since it is a chemical and the vehicle in which such hazardous goods was carried, was insured only for the purpose of carriage of goods within the meaning of the Motor Vehicles Act, 1988 under the permit for carrying the unhazardous goods, therefore, if the Tanker was carrying the hazardous goods for which it was not insured then the Insurance Company will not be liable to satisfy the claim. He also submits that in the present case, since the driver was not having any endorsement to drive a heavy vehicle to carry hazardous goods, the learned Commissioner Under Workmen's Compensation has rightly rejected the claim exonerating the Insurance Company and directed the owner of the Tanker to satisfy the claim.

Shri Atul Kumar Shukla, learned counsel for the respondent Nos.1 to 5 in his turn supports the impugned order dated 28.7.2003 passed by learned Commissioner Under Workmen's Compensation Act-cum-Labour Court, Rewa in Case No.7/Workmen's Compensation Act/98.

It is brought to the notice of this Court by Shri N.S.Rurpah, learned counsel for the respondent No.6/Insurance Company that there is Division Bench Judgment of the Hon'ble High Court of Madhya Pradesh in

Baghelkhand Filling Station & Another versus Brijbhan Prasad & Others 2006 (2) M.P.L.J 211 , which says that merely absence of endorsement on the driving license to drive the vehicle carrying dangerous or Signature Not Verified SAN hazardous goods is not sufficient to deny the claim because it is not the case of

Digitally signed by AMIT JAIN Date: 2022.10.31 19:11:33 IST the Insurance Company that the driver was not equipped to drive a heavy

vehicle and the accident took place because of absence of endorsement to drive a heavy vehicle carrying goods of dangerous or hazardous nature.

After hearing learned counsel for the parties and going through the record, two aspects emerge for consideration; (1) Whether the Tanker in question owned by the appellants bearing registration No.MP-17C-0664 was insured for carrying hazardous goods or not? and (2) Whether merely absence of endorsement to drive a goods vehicle to carry hazardous goods was a cause of accident or not?

Policy Exhibit-D/2 is available on record. The risk was undertaken insuring the vehicle belonging to M/s.Mahesh Automobiles, Semaria Chowk, Satna bearing registration No. MP-17C-0664 from 9.6.1997 to 8.6.1998. There is nothing in the policy to show that it did not cover the risk for carrying the hazardous goods. The Insurance Company did not examine any witness in its support. In their written statement/reply available on record, there is no plea to the effect that the vehicle in question was not insured to carry hazardous goods.

In absence of such pleadings that the vehicle was not duly insured to carry hazardous goods, the law laid down by Hon'ble the Supreme Court in Oriental Insurance Company Limited versus Sony Cheriyan (supra) will not be applicable to the facts and circumstances of the present case. Even otherwise the case of Oriental Insurance Company Limited versus Sony Cheriyan (supra) is that of Own Damage whereas the present case is that of compensation to a third party.

Infact, Hon'ble the Supreme Court in United India Insurance Company Limited versus Lehru & Others AIR 2003 SC 1292 has held that Signature Not Verified SAN

in order to avoid liability, it is not sufficient to establish that the person driving Digitally signed by AMIT JAIN Date: 2022.10.31 19:11:33 IST

at the time of the accident was duly licensed but the Insurance Company must

prove that the breach was on the part of the insured.

In the present case, no such evidence has been led that the owner of the Tanker (appellant herein) had knowledge of lack of endorsement and still he permitted the driver to drive the offending vehicle. Clubbed with this fact when the law laid down by Hon'ble Division Bench of this High Court in Baghelkhand Filling Station & Another versus Brijbhan Prasad & Others (supra) is taken into consideration wherein in Paragraph No.13 it is held that unless a case is made out that the accident took place on account of the fact that there was no endorsement to drive such a vehicle, no advantage can be taken by the Insurer. It is also held that the endorsement neither increases efficiency of the Driver nor in its absence, the efficiency of the Driver is likely to be reduced in any manner whatsoever. It only certifies additionally that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature. For driving such a vehicle, no further expertise or driving is required. This could be said to be a lapse on the part of the Driver as well as on the part of the appellants herein but this lapse was not responsible for the cause of the accident and allowed the appeal.

Under the present facts & circumstances of the case, the ratio of the law laid down by Hon'ble Division Bench of this High Court in Baghelkhand Filling Station & Another versus Brijbhan Prasad & Others (supra) will be applicable in all force and, therefore, the impugned order dated 28.7.2003 passed by learned Commissioner Under Workmen's Compensation Act-cum- Labour Court, Rewa in Case No.7/Workmen's Compensation Act/98

Signature Not Verified SAN exonerating the respondent No.6/Insurance Company especially when it is not

Digitally signed by AMIT JAIN the case of the Insurer that they had not undertaken the risk of the Tanker in Date: 2022.10.31 19:11:33 IST

question to carry hazardous goods, cannot be given a seal of approval. Hence, the impugned order dated 28.7.2003 passed by learned Commissioner Under Wo rkmen' s Compensation Act-cum-Labour Court, Rewa in Case No.7/Workmen's Compensation Act/98 is modified and it is directed that the Owner, Driver and Insurer will be jointly & severally liable to satisfy the compensation as awarded by the Commissioner under Workmen's Compensation Act. The penalty as ordered will be paid by the owner of the Tanker. If any amount has been paid by the appellants then they will be entitled to recover it from the respondent No.6/Insurance Company.

In above terms, this Miscellenous Appeal is disposed of. Let record of learned Labour Court be sent back.

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified SAN

Digitally signed by AMIT JAIN Date: 2022.10.31 19:11:33 IST