Telangana High Court

The New India Assurance Co Ltd., ... vs Pramod Sahni , Pramod Ku. Sahu, ... on 31 July, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

      THE HONOURABLE DR.JUSTICE G.RADHA RANI

       CIVIL MISCELLANEOUS APPEAL No.1146 of 2017


JUDGMENT:

This Civil Miscellaneous Appeal is filed by the appellant - opposite party

No.2 (for short O.P.2) - Insurance Company aggrieved by the order dated

03.01.2017 passed in E.C.No.98 of 2012 (NF) by the Commissioner for

Employees' Compensation and Deputy Commissioner of Labor at Nalgonda,

under the Employee's Compensation Act, 1923.

2. The respondent No.1 - applicant filed an application before the

Commissioner stating that he was working as a driver on the lorry bearing

No.AP-16-TW-6639 belonging to opposite party No.1 (for short O.P.1.) and the

O.P.2 was the insurer of the said lorry. On 30.08.2007, while he was on duty as

a driver and while proceeding from Pillalamarri Village at about 06:00 AM, he

lost control over the lorry and hit a tanker bearing No.AP-10-U-9054, due to

which he sustained fracture of left thigh, fracture of left arm, grievous injuries

on spinal cord and head. Immediately after the accident, he was shifted to

Government Hospital, Suryapet and from there to City Ortho Centre,

Vijayawada. Due to the fractures, he became permanently disabled. Police

Suryapet Rural registered a case in Crime No.102 of 2007 under Sections 304-A

and 337 of IPC.

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3. The O.P.1 did not evince any interest to contest the matter, even after

receipt of notice and remained ex-parte. The O.P.2 filed counter and called for

strict proof of the petition averments.

4. The applicant examined himself as AW.1 and got examined the

Orthopedic Surgeon, who issued the disability certificate as AW.2. Exs.A1 to

A6 were marked on behalf of the applicant. The respondent No.2 got examined

the Divisional Manager of Insurance Company as RW.1 and got marked Exs.B1

to B4 on their behalf.

5. The contention of RW.1 examined on behalf of O.P.2 was that the

applicant was not holding driving license to drive the lorry bearing No.AP-16-

TW-6639. He failed to submit his original driving license before the Insurance

Company to show that he was a driver as per driving license number mentioned

in Ex.A5 - Motor Vehicle Inspector's (for short "MVI") report. The Insurance

Company gave information to their Divisional Office, Dimapur in Nagaland for

verification of driving license No.54888/MKG/PROF to Regional Transport

Office (for short "RTO"), Mokokchung, Nagaland and obtained a verification

report in questionnaire form and found that the said driving license number

mentioned in Ex.A5 belonged to one Mr.Anand Sahni, S/o.Narayana Sahni, but

not to the applicant. As such, it was clear that the driving license number

Dr.GRR, J cma_1146_2017

mentioned in Ex.A5 by the applicant was false and fake and the applicant was

not having any driving license as on the date of accident.

6. The learned Commissioner on considering the evidence of both the

parties and on considering Exs.A1 to A3, the certified copies of the FIR,

medical certificate issued by the City Ortho Centre, Vijayawada and the final

report, held that the said documents would establish that the applicant was

working as a driver on the lorry bearing No.AP-16-TW-3369 at the time of

accident and sustained injuries in the said accident that arose out of and in the

course of his employment with O.P.1. Considering the evidence of AW.2, the

learned Commissioner held that he was competent to assess the physical

disability of the applicant and to issue the disability certificate and having

regard to the nature of employment and the duties discharged by the applicant as

a driver and due to the fractures of both upper and lower limbs and the resultant

disabilities, wherein the applicant developed stiffness of left knee held that it

was not possible for him to work as a driver on the lorry with the same

efficiency as he was driving as on the date of accident and assessed the loss of

earning capacity of the applicant as 70%.

7. With regard to the contention of O.P.2 that the applicant had no driving

license at all at the time of accident, the learned Commissioner observed that

O.P.2 failed to take any steps to summon the Regional Transport Officer,

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Mokokchung, Nagaland and call for records from the said office to verify

whether Ex.B3 was genuine or not. The O.P.2 also failed to examine the

Insurance Investigator, who was said to have obtained Ex.B3 from the RTO,

Mokokchung, Nagaland and in the absence of the said evidence, disbelieved

Ex.B3, the photo copy of the questionnaire form dated 08.12.2010 submitted by

the Insurance Investigator. The learned Commissioner also observed that O.P.2

failed to prove that O.P.1 had knowledge that the driving license of the

applicant mentioned in Ex.A5 was a fake driving license and that they failed to

prove that O.P.1 had willfully violated the terms and conditions of the Insurance

Policy and held both O.Ps.1 and 2 jointly and severally liable to pay

compensation of Rs.3,57,519/- with interest @ 12 % per annum from

01.10.2007 till the date of deposit.

8. Aggrieved by the said order passed by the learned Commissioner, the

Insurance Company preferred this appeal raising the following substantial

questions of law:

a. Whether the Insurance Company is liable to pay compensation when the owner of the vehicle had violated terms and conditions of the policy by allowing a person without a valid and effective driving license to drive the vehicle?

b. When the applicant who is the driver of the accident vehicle, failed to file his driving license, whether the learned Commissioner had not committed an error

Dr.GRR, J cma_1146_2017

in drawing adverse inference to hold that the applicant had no driving license at the relevant point of time?

c. Whether the learned Commissioner was right in holding that the Insurance Company failed to prove that owner of the vehicle has knowledge that the driving license of the applicant was fake and that he willfully violated the terms and conditions of the policy inspite of filing Ex.B3?

d. Whether the learned Commissioner has not committed an error in taking the loss of earning capacity at 70%, when the doctor who is examined as AW.2 is not competent to assess the disability and to issue the disability certificate?

9. Notice could not be served on the respondent No.1 - applicant. The

respondent No.1 - applicant belonged to Muzaffarpur District of Bihar State. A

substitute service was taken. But, the publication in proof of it was also not filed

by the learned counsel for the appellant - Insurance Company. However, the

learned counsel for the appellant - Insurance Company submitted that the

efforts made by them to summon the Road Transport Officer, Nagaland also

had failed and hence prayed to pass the judgment on merits.

10. Heard the learned counsel for the appellant - Insurance Company -

O.P.2.

11. Perused the record.

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12. As observed by the Hon'ble Apex Court in Fulmati Dhramdev Yadav

and another v. New India Assurance Company Limited & another1 in Civil

Appeal No.4713 of 2023, the appeal under Section 30 of the Employee's

Compensation Act, 1923 could be entertained only if there exists a substantial

question of law. By referring to its earlier judgment in North - East

Karnataka Road Transport Corporation v. Sujatha [(2019) 11 SCC 514] of

a Two-Judge Bench, wherein it was held that:

"12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."

13. A substantial question of law would arise only if there is perversity in the

findings of the Commissioner.

14. A perusal of the order of the Commissioner would disclose that Ex. B3

was a photocopy of the questionnaire sent by the RTO, Mokokchung, Nagaland.

Without examining the Investigator appointed by the New India Assurance

Company Limited, Dimapur, Nagaland who addressed a letter to the RTO,

2023 Live Law (SC) 746

Dr.GRR, J cma_1146_2017

Mokokchung, Nagaland under Ex. B2 and without examining the RTO,

Mokokchung, Nagaland, the learned Commissioner rightly held that no reliance

could be placed upon the said document marked under Ex. B3. The learned

Commissioner also rightly observed that no evidence was adduced by O.P.2 to

substantiate its contentions that the applicant driver had no valid driving license

at the time of the accident and the owner knowingly entrusted the vehicle to a

person having no license. The learned Commissioner rightly placed reliance

upon the judgment of the High Court of Delhi in Reliance General Insurance

Company Limited v. Tilak Raj Nayyar and Others 2, decided on 11.03.2015,

wherein it was held that:

"16. It is urged by the learned counsel for the appellant that the driving licence of driver of Maruti Car, on investigation from the Licensing Authority, Mathura was found to be a fake. Admittedly, no notice was issued to the owner of the car to produce the driving licence of the driver. In the absence thereof, it is difficult to say whether the licence which was allegedly got verified by the appellant - Insurance Company was seen by the owner at the time of entrusting the vehicle to the driver. It is well settled that it is not the responsibility of the owner of the vehicle to visit the Licensing Authority for verification of the driving licence produced. The initial onus is on the insurer to prove that there is

2016 ACJ 1983

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willful and conscious breach of the terms and conditions of the insurance policy by the insured. In the absence of any notice to the owner to produce the driving license which was allegedly seen by him, it can't be said that the insurance company has failed to discharge the initial onus placed upon it to prove that there was a willful and conscious breach of the terms and conditions of the insurance policy. The appellant is therefore, not entitled to recovery rights against the owner."

15. The learned Commissioner also placed reliance upon the judgment of the

Hon'ble Apex Court in National Insurance Company Limited v. Swaran

Singh & Others 3, wherein it was held that mere absence, fake or invalid license

or disqualification of the driver for driving, are not in themselves defences

available to the Insurance Company.

16. Hence, this Court does not find any perversity in the findings of the

learned Commissioner in fixing the liability upon the Insurance Company

jointly and severally along with O.P.1 to pay compensation to the applicant for

the injuries sustained by him in the accident that arose out of and in the course

of his employment as driver on the lorry bearing No.AP-16-TW-3369.

17. In the result, the Civil Miscellaneous Appeal is dismissed confirming the

order of the learned Commissioner for Employees' Compensation and Deputy