Madras High Court
M/S.Bharti Axa General Insurance ... vs Tmt.Subbammal on 3 February, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
C.M.A(MD)No.1004 of 2016
and
CMP(MD)No.9039 of 2016
M/s.Bharti Axa General Insurance Company Limited,
Metro Plaza, 2nd Floor,
162, Annasalai, Chennai. : Appellant/2nd Respondent
Vs.
1.Tmt.Subbammal
2.Kumarandi : R1 and R1/Claimants
3.Stephen Thomas Walker : 3rd Respondent/1st Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 30 of
Workmen Compensation Act, against the judgment and decree made
in W.C.No.34 of 2011, dated 01.03.2016 on the file of the Deputy
Commissioner of Labour, Madurai.
For Appellant : Mr.G.Maruthiah
For R1 and R2 : Mr.G.Kandhavadivelan
For 3rd Respondent : No appearance
https://www.mhc.tn.gov.in/judis/
2
JUDGMENT
This appeal has been filed challenging the judgment and decree
made in W.C.No.34 of 2011, dated 01.03.2016 on the file of the
Deputy Commissioner of Labour, Madurai.
2.The respondents 1 and 2 herein laid a claim before the Deputy
Commissioner of Labour, Madurai contending that on 06.12.2010
when the deceased Jeganathan, after unloading the broiler chicken in
the Lorry TN-59-AE-0157 at the shop of Arasan Chicken Centre,
Alanganallur, returning on the road side, at that time, the driver of
the lorry drove it on the reverse and dashed against the deceased. In
that process, he sustained injury on the back of the head and in the
hospital, he died on the next day. The legal heirs of the deceased filed
a claim petition seeking compensation of 5,00,000/- contending that
he was an employee under the 3rd resplendent/1st respondent Lorry
and the accident occurred in the course of the employment.
3.The appellant Insurance Company resisted the application by
filing a detailed counter. The main contention of the Insurance
Company was that there was a violation of the policy conditions and
therefore, they are not liable to pay the award amount.
https://www.mhc.tn.gov.in/judis/
4.Before the Deputy Commissioner of Labour, on the side of the
claimants, 2 witnesses were examined and marked Exs.A1 to A11 and
on the side of the side of the appellant Insurance Company, 2
witnessed were examined and Exs.R1 and R2 were marked.
5.The Deputy Commissioner of Labour on the basis of the
evidence, has awarded a sum of Rs.6,15,361/-. Challenging the
award, the appellant has filed the present appeal.
6.The appellant has filed this appeal only challenging their
liability and they have have not questioned the quantum awarded by
the Deputy Commissioner of Labour.
7.Heard the learned counsel appearing for the parties and
perused the materials available on record.
8.Even though several grounds were raised in the grounds of
appeal, it is mainly argued by the learned counsel for the appellant
that the driver of the offending vehicle had not possessed valid and
effective driving licence at the time of accident and hence, the
Insurance Company is not liable to pay the compensation.
https://www.mhc.tn.gov.in/judis/
9.Per contra, the learned counsel for the Respondents 1 and
2/claimants submitted that the claimants have proved that the
deceased was an employee under the 3rd respondent Lorry and he
died in the course of employment and even if, there is any violation of
the policy conditions, the Insurance Company has to pay
compensation and recover the amount from the insured.
10.It is needless to say that in this case, the competent person
to speak about the driving licence is the owner of the offending
vehicle. But in this case, the owner of the offending vehicle chosen to
remain ex-parte and hence, an adverse inference can be drawn to the
effect that the driver of the said vehicle did not possess valid and
effective driving licence.
11.In this case, RW1 the official of the Appellant Insurance
Company. He deposed that the driver of the offending vehicle did not
possess valid and effective driving licence at the time of accident.
RW2 is the official of Regional Transport Authority. He also deposed
that the driver, who was on the wheels at the material time of
accident, did not possess valid and effective driving licence to drive
the vehicle.
https://www.mhc.tn.gov.in/judis/
12.Though, the learned Deputy Commissioner of Labour has
relied on the defence as well as the evidence adduced by the appellant
Insurance Company, failed to come to the conclusion with regard to
the validity of driving licence and the liability of the appellant.
13.It is not in dispute that the deceased was an employee under
the 3rd respondent/employer and he succumbed to injury arising out of
and in the course of employment. Indisputably, the vehicle which was
involved in the accident had coverage of insurance on the date of
accident. The sole ground upon which the impugned judgment
assailed by the appellant is that on the date of accident, the driver of
the offending vehicle did not possess valid and effective driving
licence, which amounts to violation of policy conditions and on that
secure, shall exonerate the appellant from the lability and therefore,
the appellant is not liable to pay the compensation.
14.The law is well settled that even if there is any violation of
the policy conditions, the Insurance Company has to pay
compensation and recover the amount from the insured. Therefore,
the appellant is bound to pay the compensation to the respondents 1
and 2/claimants and recover the same from the insured.
https://www.mhc.tn.gov.in/judis/
15.In view of the foregoing discussion, the Civil Miscellaneous
Appeal is partly allowed with a direction that the Insurance Company
shall pay compensation to the respondents 1 and 2/claimants and
thereafter recover the same from the insured as per the mode
incorporated in Shri Nanjappan's case. No costs. Consequently,
connected Miscellaneous Petition is closed.
03.02.2021
er
Index:Yes/Internet
Internet:Yes/No
https://www.mhc.tn.gov.in/judis/
T.KRISHNAVALLI .J.
er
To
The Commissioner for Workmen Compensation
(Deputy Commissioner of Labour),
Madurai
C.M.A(MD)No.1004 of 2016
03.02.2021
https://www.mhc.tn.gov.in/judis/
