Madhya Pradesh High Court

Narendra Pahde vs Smt. Kavita on 28 January, 2025

Author: Achal Kumar Paliwal

Bench: Achal Kumar Paliwal

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 28th OF JANUARY, 2025
MISC. APPEAL No. 3199 of 2024
HDFC ERGO GENERAL INSURANCE CO. LTD.
Versus
SMT. KAVITA AND OTHERS

Appearance:

Shri Ashish Kumar Pandey - Advocate for the appellant.

Shri Surdeep Khampariya, learned counsel for the respondent No1.

Shri Shyam Shivhare, learned counsel for the respondents 2 to 5.

WITH
MISC. APPEAL No. 4026 of 2024
NARENDRA PAHDE
Versus
SMT. KAVITA AND OTHERS

Appearance:

Shri Ravi Shankar Saini, learned counsel for the appellant.

Shri Surdeep Khampariya, learned counsel for the respondent Nos. 1-5.

Shri Ashish Kumar Pandey- Advocate for the respondent No.6.

ORDER

This order shall govern the disposal of M.A.No.3199/2024 (HDFC Ergo

General Insurance Company Ltd. Vs. Smt. Kavita and others) and

M.A.No.4026/2024 (Narendra Pahde Vs. Smt. Kavita and others) arising out of

order dated 27.01.2024 passed by Commissioner, Workmen Compensation Act,

1923, Labour Court, Chhindwara in Case No.27/W.C. Act Fatal/2012.

2. M.A.No.3199/2024 (HDFC Ergo General Insurance Company Ltd.

Vs. Smt. Kavita and others) has been filed by the insurance company seeking

exoneration from liability to pay the compensation whereas M.A.No.4026/2024

(Narendra Pahde Vs. Smt. Kavita and others) has been filed by the owner of the

offending vehicle for setting-aside the penalty imposed by concerned Court etc..

3. Learned counsel for the appellant/Insurance Company in

M.A.No.3199/2024 submits that in the instant case, at the time of accident,

deceased was travelling on the mudguard of the tractor. It is also urged that as

per Insurance Policy (Ex.D/1), offending vehicle (tractor) was insured for

agriculture purposes but at the time of accident, tractor was being used for

transporting sand for construction of the house. As per Registration Certificate,

seating capacity of tractor is one. Further, after referring to insurance policy

(Ex.D/1), it is also urged that no premium for labour has been received. As per

insurance policy, insurance company is contractually liable to owner/driver

only.

4. Learned counsel for the Insurance Company further submits that in

the instant case, as per evidence on record, deceased was working as employee

of Rajesh and Rajesh is not the owner of the offending vehicle. In the instant

case, driver and Rajesh have not been joined as party. Hence, in the instant case,

employer and employee relationship is not established between deceased and

owner of the offending vehicle. With respect to above submission, learned

counsel for the insurance company has relied upon HDFC, Ergo General

Insurance Co. Ltd. Vs. Bhagya Rekha decided on 19.07.2023 and M/s

Mangilal Vishnoi Vs. National Insurance Company Limited decided on

10.01.2022. On above grounds, it is urged that appeal filed by the

appellant/owner be allowed and insurance company be exonerated from liability

to pay the compensation.

5. Learned counsel for the appellant/owner in M.A.No.4026/2024

submits that from evidence on record, it is not established that on the date of

accident, deceased was travelling/sitting on the mudguard of the tractor.

Further, it is also urged that in the instant case, it is not established that

deceased was an employee of the appellant/owner. It is also urged that from

deposition of non-applicant witnesses No. 1 and 2, it is evident that at the time

of accident, offending vehicle i.e. tractor was transporting/carrying sand for

repair of well/construction of cabin in the field. Therefore, it cannot be said that

at the time of accident, offending vehicle was being used for non-agriculture

purposes. With respect to above, findings recorded by the concerned Court are

just and proper and they are well supported by evidence on record. Further, it is

also urged that in the instant case, law laid down in HDFC Ergo General

Insurance Co. Ltd and M/s Mangilal Vishnoi (supra) do not apply to the facts

of the case.

6. Learned counsel for the appellant/owner, after referring to Section

4A of The Employee's Compensation Act, 1923, submits that learned

concerned Court has imposed penalty upon the appellant without affording an

opportunity of hearing to the appellant, which is in violation of provisions

contained in Section 4A of the Employee's Compensation Act, 1923. On above

grounds, it is urged that appeal filed by the appellant/owner be allowed and

penalty imposed by the concerned Court be set-aside/impugned order be set-

aside and further appeal filed by the insurance company be dismissed.

7. Learned counsel on behalf of the respondents/claimants in

M.A.No.3199/2024 and M.A.No.4026/2024 submits that findings recorded by

the concerned Court are just and proper and no interference is required in the

same. Hence, appeals filed on behalf of both the appellants be dismissed.

8. Heard. Perused the record of the case.

M.A.No.3199/2024 (HDFC Ergo Gen. Insurance Co. Ltd. Vs. Smt.

Kavita and ors.)

9. Present appeal was admitted on the following substantial question

of law:-

"Whether learned Commissioner for Workmen Compensation Act has

wrongly fastened liability on the appellant/Insurance Company with respect to

payment of compensation?"

10. So far as liability of insurance company to pay the compensation is

concerned, admittedly, in the instant case, offending vehicle is a tractor. As per

insurance policy (Ex.D/1) and Registration Certificate (Ex.P/7), seating capacity

of offending vehicle i.e. tractor is one. From averments made in the claim

petition as well as reply filed by the respondents and testimonies of applicant

witness Kavita Bai and non applicant witness Narendra Pahde and Faglal and

FIR (Ex.P/1), it is clearly established that at the time of accident, deceased was

travelling/sitting on the mudguard of the offending vehicle i.e Tractor. In this

Court's opinion in view of law laid down in M.A.No.2762/2007 (United India

Insurance Co. Ltd. Vs. Poonamchand and Ors. decided on 22.12.2023) and

in the aforesaid factual situation, insurance company is not liable to pay the

compensation. In para Nos. 20 and 21 of aforesaid judgment, various judgments

of this Court including Full Bench judgment has been referred and discussed

with respect to liability of insurance company pertaining to cases where a

person is travelling or sitting on the mudguard of the tractor.

11. Thus, in this Court's opinion, solely on aforesaid ground, insurance

company is not liable to pay the compensation. Hence, there is no need to

discuss the submissions of learned counsel for the appellant pertaining to

employer and employee relationship between deceased and respondent/owner

and the purpose for which tractor was being used at the time of accident.

12. Hence, in view of discussion in the foregoing paras, learned

Commissioner, has erred in fastening the liability on the insurance company for

payment of compensation. Hence, appeal filed on behalf of the

appellant/insurance company is allowed and appellant/Insurance Company is

exonerated from liability to pay compensation.

M.A.No.4026/2024 (Narendra Pahde Vs. Smt. Kavita and Ors)

13. Present appeal was admitted on the following substantial question

of law:-

"Whether learned Tribunal has imposed penalty on the appellant in

violation of Section 4A of the Employee's Compensation Act, 1923?"

14. So far as relationship of employer and employee between deceased

and appellant/owner is concerned, learned counsel for the appellant/owner

submits that from evidence on record, it is not established that deceased was an

employee of appellant/owner, therefore, appellant is not liable to pay the

compensation. This Court has examined the submission of learned counsel for

the appellant in the light of averments of the parties as well as evidence adduced

by both the parties and also findings recorded by the learned Commissioner for

Workmen Compensation. Perusal of paras from 9 to 19 of the impugned order

reveals that Commissioner for Workmen Compensation has discussed the

evidence pertaining to relationship of employer and employee between

deceased and appellant in detail. Learned Commissioner has examined and

assessed both oral as well as documentary evidence on record. In view of

averments of both the parties and evidence available on record, there appears to

be no legal or factual error in the findings of the Commissioner with respect to

relationship of employer and employee between deceased and appellant/owner.

Hence, submission of learned counsel for the appellant/owner with respect to

aforesaid are negated and findings of learned Court with respect to above, are

affirmed.

15. So far as imposition of penalty on appellant/owner is concerned,

perusal of para 29 of the impugned order reveals that therein, learned Court has

imposed penalty of 50% of liability.

16. With respect to above, Section 4A (3) (b) of The Employee's

Compensation Act, 1923 is relevant and it provides as under:-

4A. Compensation to be paid when due and penalty for default.-

(1)******* (2)******* (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-]

(a)******

(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty percent of such amount by way of penalty:

Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.