Telangana High Court

The New India Ass. Com. Ltd., ... vs T Indiramma, Hyderabad And 3 Others on 26 June, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

        THE HONOURABLE DR.JUSTICE G. RADHA RANI

          CIVIL MISCELLANEOUS APPEAL No.427 of 2016


JUDGMENT:

This appeal is filed by the appellant - Insurance Company - Opposite

Party No.2 (for short ''O.P.2'') aggrieved by the orders passed in W.C.No.51 of

2014 dated 19.02.2016 by the Commissioner for Employee's Compensation and

Assistant Commissioner of Labor - II (FAC), T.Anjaiah Karmika Samkshema

Bhavanam, RTC 'X' Roads, Hyderabad..

2. The respondents 1 to 3 are the applicants and the respondent No.4 is the

owner of the vehicle - Opposite Party No.1 (for short ''O.P.1'').

3. The parties are hereinafter referred as arrayed before the Commissioner.

4. The applicants filed a claim petition stating that the deceased worked as a

driver on a lorry bearing No.AP-24-X-3369 under the employment of O.P.1 and

he sustained personal injuries which resulted in his death in an accident that

occurred on 26.03.2014 during the course and out of his employment. The

applicants further submitted that on 25.03.2014, while the deceased was on duty

as a driver on the lorry bearing No.AP-24-X-3369 and while proceeding from

Vijayawada to Hyderabad, on the way at about 02:00 AM on 26.03.2014, when

he reached near underpass bridge on NH.No.65, Koyyalagudem Village,

Dr.GRR, J cma_427_2016

Choutuppal Mandal of Nalgonda District, the deceased lost control over the

lorry due to heavy light focus of opposite coming vehicle and dashed his lorry

against a stationary DCM vehicle bearing No.AP-28-TB-3547, due to which the

accident occurred. In the accident, he sustained severe injuries. Immediately,

he was shifted to Osmania General Hospital, Hyderabad for treatment. While

undergoing treatment, he succumbed to injuries at about 09:30 AM on the same

day.

4.1. The applicants further submitted that PS Choutuppal of Nalgonda District

registered a case in Crime No.105 of 2014 under Section 304-A of IPC. They

further submitted that the deceased was aged 23 years as on the date of the

accident. He was paid a wage of Rs.8,500/- per month and batha of Rs.100/-

per day by O.P.1. The O.P.1 was aware of the accident. The lorry bearing

No.AP-24-X-3369 of O.P.1 was insured with O.P.2 vide valid policy and the

same was in force covering the date of the accident. As such, claimed

compensation of Rs.9.00 lakhs along with interest and costs from the opposite

parties O.P.s.1 and 2.

5. The O.P.1 filed counter admitting the employment of the deceased on his

lorry bearing No.AP-24-X-3369 and admitted the wages as Rs.8,500/- per

month and batha of Rs.100/- per day being paid to the deceased. He further

admitted the narration of the accident, the injuries sustained by the deceased in

Dr.GRR, J cma_427_2016

the accident that occurred on 26.03.2014, the death of the deceased on the same

day at Osmania General Hospital, Hyderabad and that the deceased died during

the course and out of his employment. He further stated that the lorry was

insured with O.P.2. As such, O.P.2 alone was liable to pay compensation and

requested to dismiss the claim against him.

6. The O.P.2 also filed counter calling for strict proof of the petition

averments. The O.P.2 specifically denied that the deceased was having a valid

driving licence to drive the said lorry.

7. The appellant No.4, the wife of the deceased was examined as AW.1.

Exs.A1 to A6 were marked on behalf of the applicants. O.P.1 was examined as

RW.1 and O.P.2 got examined the Administrative Officer of his company as

RW.2. Exs.B1 to B3 were marked on behalf of O.P.2.

8. On considering the oral and documentary evidence on record, the

Commissioner held that the deceased was a workman within the meaning of the

Act. He worked as a driver on the lorry bearing No.AP-24-X-3369 and died

due to the injuries sustained in the accident that occurred on 26.03.2014 that

arose out of and in the course of employment under the employment of O.P.1.

The Commissioner further observed that as the vehicle of O.P.1 was insured

with O.P.2 vide valid policy, the O.P.2 was bound to indemnify O.P.1.

Dr.GRR, J cma_427_2016

9. With regard to the contention of O.P.2. that the deceased was not holding

any driving licence to drive the insured vehicle, the Commissioner held that the

Insurance Company had not placed any material to show that the deceased was

not holding a valid driving licence. The RW.2, who was examined on behalf of

the Insurance Company, testified that the policy was in force and the risk of the

deceased workman was covered. There was nothing on record to show that

there was any willful breach of conditions of policy by the insured by entrusting

the vehicle to a person having no valid driving licence. The Commissioner

placed burden upon the Insurance Company to prove that there had been

violation of terms and conditions of the policy to avoid its liability and simply

because the driving licence could not be produced by the applicants, held that

they could not be denied the fruits of beneficial legislation especially when the

Insurance Company failed to discharge the burden of establishing that there was

violation of terms and conditions of the policy.

10. The Commissioner placed reliance upon the judgment of the combined

High Court of the State of Telangana and Andhra Pradesh in United Insurance

Company Limited v. late Sri Mohd. Rasheed Adhmed (Died) and two

others 1 and of the judgment of the Hon'ble Apex Court in National Insurance

Company Limited v. Swaran Singh and Others 2 and the Division Bench

judgment of the Kerala High Court in United Insurance Company Limited v.

CMA.No.720 of 2005 dated 13.01.2015

2004 ACJ 1

Dr.GRR, J cma_427_2016

Annakutty and another 3 and of the Division Bench judgment of the High

Court of Kerala at Ernakulam in Oriental Insurance Company Limited v.

Jimmy and another 4 . The Commissioner awarded compensation of

Rs.7,82,933 (Rupees Seven Lakh Eighty Two Thousand Nine Hundred and

Thirty Three only) with interest at 10% per annum and directed O.Ps.1 and 2 to

deposit the said amount within 30 days from the date of receipt of the order.

11. Challenging the said order and decree passed by the Commissioner dated

19.02.2016, the O.P.2 - Insurance Company preferred this appeal contending

that the Commissioner failed to see that in case of death of the deceased driver,

in the absence of valid driving licence, he should not be treated as a workman

under the Workmen's Compensation Act, 1923 (for short "the Act"). The

Commissioner totally ignored the evidence on record and applied the judgments,

which would not apply. The Commissioner ignored Section 14 of the

Workmen's Compensation Act, 1923 that there was no direct liability on the

part of the Insurance Company and failed to see that the cause of death was not

in the course of employment.

12. Heard Sri Kota Subba Rao, learned counsel for the appellant - Insurance

Company and Sri Viswanathula Jagan Mohan for the respondents - applicants 1

to 3.

2005 (III) L.L.J 824

2004 ACJ 900

Dr.GRR, J cma_427_2016

13. The main contention of the learned counsel for the appellant - Insurance

Company was that the driver was not holding a valid driving licence. The wife

of the deceased admitted that she had not filed the driving licence. Ignoring the

said evidence, the Commissioner holding that it was quite possible that the

driving licence, which the deceased was supposed to carry on his person, got

misplaced in the accident was based upon assumptions and presumptions and

prayed to order "pay and recovery".

14. Learned counsel for the respondents on the other hand contended that

O.P.1 was examined as RW.1. He admitted the employment of the deceased.

He also further stated that he verified the driving licence of the deceased while

taking him in employment. As such, the burden would lie upon the Insurance

Company to prove that the deceased was not holding a valid driving licence but

failed to discharge the said burden. As such, the Insurance Company was also

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

respondents - applicants 1 to 3 and prayed to dismiss the appeal.

15. On a perusal of record, the employer and employee relationship was

admitted by RW.1. He also stated that he verified the driving licence of the

deceased while taking him in employment. The occurrence of the accident and

the deceased sustaining injuries and succumbing to the injuries due to the

accident was also not disputed.

Dr.GRR, J cma_427_2016

16. 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.Narayana 5, which was delivered under the Workmen's

Compensation Act, held that:

"The employer and employee relationship cannot be disputed by the appellant. The accident also is not disputed. In such circumstances, whether the workman did have a proper licence or not, whether he is a workman, a boiler operator or driver as the case may be, is not a matter of 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."

17. The Division Bench of the High Court of Kerala in United Insurance

Company Limited v. Annakutty 6, also held that:

"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. Willful

2003 Law Suit (Ker) 296

2005 Law Suit (Ker) 280

Dr.GRR, J cma_427_2016

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 where ever 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 cases like this where the accident resulted, admittedly in the death of the workman."

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

Swaran Singh and Others 7, held that:

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

2004 (2) ALD 36

Dr.GRR, J cma_427_2016

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 licenced 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 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 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."

Dr.GRR, J cma_427_2016

19. Considering the judgments which were extracted above, the non-

production 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 O.Ps.1

and 2 jointly and severally liable to pay compensation to the applicants 1 to 3.

The order of the Commissioner was not contrary to law or probabilities of the

case and was not liable to be set aside. Hence, this Court does not find any

merit in the appeal and the same is liable to be dismissed.

20. In the result, the CMA is dismissed confirming the order dated

19.02.2016 passed in W.C.No.51 of 2014 by the Commissioner for Employee's

Compensation and Assistant Commissioner of Labor - II (FAC), T.Anjaiah