The New India Assurance Co.Ltd. ... vs Smt.N.Anjilamma 5 Ors
2021 Latest Caselaw 3037 Tel

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

      CIVIL MISCELLANEOUS APPEAL No. 4769 of 2004

JUDGMENT:

This appeal is filed by the Insurer against the order dated

28.04.2004 passed in W.C. No.159 of 2003 by the Commissioner for

Workmen's Compensation and Assistant Commissioner of Labour-III,

Hyderabad (for short 'Commissioner').

2. The parties are hereinafter referred to as they were arrayed

before the Commissioner.

3. The family members of the deceased workman filed the

application before the Commissioner claiming compensation of

Rs.4,00,000/- contending that the deceased was an employee working

as a lorry driver in the employment of the Opposite Party No.1 on the

lorry bearing No.AP 9X 3002 and on 16.10.2003 while he was

proceeding on the said lorry, carrying sand, travelling from Kurnool to

Hyderabad on NH-7 and when reached near Malle Bowenpally

village, stopped the lorry to attend the nature call and while trying to

cross-over the road, an unknown vehicle dashed against him and he

died on the spot.

4. The Opposite Party No.1 remained exparte. The Opposite

Party No.2 i.e. appellant herein did not admit that the deceased was a

driver, employed by the Opposite Party No.1 and that he was holding Dr.GRR,J

valid and subsisting driving licence and that the accident occurred

during the course of employment.

5. The wife of the deceased was examined as AW.1 and she

stated that her husband was employed with the Opposite Party No.1

and the driving licence of her husband was lost in the accident. No

evidence was adduced by the appellant - Opposite Party No.2, except

filing the Insurance policy.

6. On considering the oral and documentary evidence on

record, the Commissioner held that there was nothing to disbelieve

that the deceased was not employed by the Opposite Party No.1 as a

lorry driver and there was nothing to prove that the deceased was not

having a valid driving licence. Considering the documents marked as

Exs.A.1 to A2, certified copy of the FIR and the Inquest Report, as the

occupation of the deceased was mentioned as a driver of the lorry, the

Commissioner believed the employment of the deceased as the driver

and considering the evidence of AW.1, wherein she stated that the

deceased lost driving licence in the accident, the Commissioner

assumed that the deceased had a driving licence at the time of the

accident. He also relied upon the judgment of the Hon'ble Apex

Court in National Insurance Company Limited v. Swaran Singh

and Ors.,1 on the aspect that the burden would lie on the Insurance

company to prove that the driver was not having a valid driving

licence at the time of accident and the Insured was guilty of

(2004 (2) ALD 36 Dr.GRR,J

negligence in allowing the vehicle in use by an unlicensed driver and

the Insurance Company could not avoid its liability unless the breach

of conditions of policy by the driver was so fundamental as to the

cause of the accident. He awarded a compensation of Rs.3,65,791/- to

be jointly and severally paid by the Opposite Parties No.1 and 2 to the

applicants.

7. Challenging the same, the Opposite Party No.2 i.e. Insurance

company filed this appeal contending that the compensation could not

have been awarded by the Commissioner when there was gross

violation of the policy conditions. He further contended that the

deceased was not fit to be a driver without driving licence and the

Commissioner ought to have considered that the deceased was not a

workman and ought to have dismissed the claim.

8. Heard the learned counsel for the appellant and the learned

counsel for the respondents-claimants.

9. Now the point for consideration is whether the judgment of

the Commissioner was contrary to law and probabilities of the case

and was liable to be set aside?

10. On perusal of the record, it would disclose that the

Commissioner believed that the deceased was employed as a driver on

the lorry basing upon the evidence of AW.1 and EXs.A1 and A2. No

contra evidence was adduced by the Opposite Parties No.1 and 2. The

Opposite PartyNo.1 remained exparte and did not choose to contest Dr.GRR,J

the case. The Opposite Party No.2 had not summoned the Opposite

Party No.1 nor adduced anything in the cross-examination of AW.1 to

believe that the deceased was not employed by the Opposite party

No.1 nor was he holding a valid driving licence at the time of the

accident.

11. Learned counsel for the appellant contended that the

Commissioner placing reliance on the judgment of the Hon'ble Apex

Court in the case of Swaran Singh (1 supra) was not correct as the

said case was pertaining to the Motor Vehicles Act, but not under the

Workmen's compensation Act, the burden would lie on the workman

in Workmen's Compensation Act to prove that he was employed by

the employer and the Commissioner wrongly placed the burden on the

Insurance company.

12. Learned counsel for the respondents-claimants, on the other

hand, contended that there was no bar to apply the case of Swaran

Singh to the cases under Workmen's Compensation Act. He relied

upon the judgment of a Division Bench of the High Court of Kerala in

Oriental Insurance Company Limited, represented by its

Assistant Manager v. Jimmy S/o.Joseph and Manoj

S/o.Narayana2 which was delivered under Workmen's Compensation

Act, wherein it was held in paragraph-3 that "the employer and

employee relationship cannot be disputed by the appellant. The

accident also is not disputed. In such circumstances, whether the

2003 LawSuit(Ker) 296 Dr.GRR,J

workman did have a proper licence or not, whether he is a Wireman, a

Boiler Operator or Driver as the case may be, is not a matter for the

concern of the insurer. When the insurer had undertaken the liability

that had fallen upon the insured, necessarily the insurer has to

discharge that burden. If there is violation of the policy conditions,

the insurer can seek appropriate remedy." He also relied upon the

judgment of a Division Bench of High Court of Kerala in United

India Insurance Company Limited v. Annakutty3, which was also

under the Workmen's compensation Act, wherein in paragraph - 3, it

was held as follows:

"It is an admitted case that the deceased workman was an employee of the insured and that the accident occurred while he was driving the jeep and the accident resulted in his death. It was on 28.3.2002. When the accident has resulted in the death of the workman, necessarily clause (b)(ii) of the proviso to Section 3(1) of the Act will have no application. Wilful disobedience of an order or rule expressly framed for the purpose of securing such safety like the insistence of a driving licence will have bearing going by the said provision, only in respect of any injury not resulting in the death of the workman. Necessarily even if there was any contravention of the provisions of law, the compensation shall have to be paid by the employer wherever death occurs as a result of the accident. When there was a valid insurance policy, that liability shall be on the insurer. Therefore absence of driving licence cannot be taken as a reason to deny the compensation, in case like this where the accident resulted, admittedly in the death of the workman."

13. A perusal of the judgment in Swaran Singh's case (1

supra), it would disclose that the Hon'ble Apex Court held that the

breach of policy condition e.g., disqualification of driver or invalid

2005 LawSuit(Ker) 280 Dr.GRR,J

driving licence of the driver, as contained in sub-section (2)(a)(ii) of

section 149, have to be proved to have been committed by the insured

for avoiding liability by the insurer. Mere absence, fake or invalid

driving licence or disqualification of the driver for driving at the

relevant time, are not in themselves defences available to the insurer

against either the insured or the third parties. To avoid its liability

towards insured, the insurer has to prove that the insured was guilty of

negligence and failed to exercise reasonable care in the matter of

fulfilling the condition of the policy regarding use of vehicles by duly

licensed driver or one who was not disqualified to drive at the relevant

time.

The insurance companies are, however, with a view to avoid

their liability must not only establish the available defence(s) raised in

the said proceedings but must also establish 'breach' on the part of the

owner of the vehicle; the burden of proof wherefor would be on them.

The court cannot lay down any criteria as to how the said

burden would be discharged, inasmuch as the same would depend

upon the facts and circumstance of each case.

Even where the insurer is able to prove breach on the part of

the insured concerning the policy condition regarding holding of a

valid licence by the driver or his qualification to drive during the

relevant period, the insurer would not be allowed to avoid its liability

towards insured unless the said breach or breaches on the condition of

driving licence is/are so fundamental as are found to have contributed

to the cause of the accident. The Tribunals in interpreting the policy Dr.GRR,J

conditions would apply "the rule of main purpose" and the concept of

"fundamental breach" to allow defences available to the insured under

section 149(2) of the Act.

14. The contention of the learned counsel for the appellant that

the said judgment is not applicable to the Workmen's Compensation

Act is not considered valid. Though it was given under the Motor

Vehicles Act, it is equally applicable to the Workmen's Compensation

Act. The Insurer could not avoid his liability towards the insured

unless he proves that the breach was so fundamental to have

contributed to the cause of the accident. The deceased was not

driving the vehicle at the time of the accident, but was crossing the

road to attend the nature call by stopping his lorry. As such, the

policy conditions regarding driver not holding driving licence at the

time of accident cannot be considered as fundamental breach that had

contributed to the cause of the accident, so as to discharge the

appellant from the liability. The above judgment also discloses that

the absence of the driving licence cannot be a reason to deny the

compensation when there was a valid insurance policy. As such, it is

considered that the Commissioner had not committed any error in

passing the award holding the Opposite Parties jointly and severally

liable to pay compensation to the applicants. The order of the

Commissioner was not contrary to law or probabilities of the case and

was not liable to be set aside. Hence, I do not find any merits in the

appeal and therefore, the same is liable to be dismissed.

Dr.GRR,J

15. Accordingly, the Appeal is dismissed confirming the order

dated 28.04.2004 passed in W.C. No.159 of 2003 by the

Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour-III, Hyderabad. There shall be no order as

to costs.

Miscellaneous Petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J October 27, 2021

KTL