Uttarakhand High Court
Unknown vs Israr Ahmad & Another on 21 February, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
Judgment reserved on: 31.12.2024
Judgment delivered on: 21.02.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No.01 of 2014
National Insurance Company Ltd.
--Appellant
Versus
Israr Ahmad & another
--Respondents
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Presence:-
Mr. Bindesh Kumar Gupta, learned counsel for the appellant
through V.C.
Mr. Arvind Kr. Sharma, learned counsel for respondents
through V.C.
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Hon'ble Pankaj Purohit, J.
This is an appeal under section 30 of the
Workmen's compensation Act, 1923, against the
judgment and order dated 09.10.2013, passed by
orkmen's Compensation Commissioner, District
Haridwar, in Workmen Compensation Case No.19 of
2007, "Smt Akhtari Begum & ors. Vs Dilshad Ahmed &
ors"
2. As per the claim petition, the case of the
respondent no.1-claimant as unfolded is that his son
deceased Zrar Ahmed was working as a driver with
respondent no.2 and on 02.06.2006, when he was under
the directions of respondent no.2 carrying cattles from
Punjab to Saharanpur he collided with a bus which
resulted in fracture to both of his legs. He was rushed to
Radix Hospital, Ambala, Haryana by the bystanders.
Thereafter, he was shifted to Orthopedic & Fracture
Clinic, Saharanpur and he ultimately succumbed to the
said injury in Mahipal Nursing Home, Roorkee.
3. It has been stated in the claim petition by
respondent no.1-claimant that at the time of death the
age of his son was around 21 years and he was getting a
salary of Rs.5,000/- per month from his employer. He
stated that the death of his son was caused during and
in the course of his employment with respondent no.2.
He further alleged that even though, the information
regarding the accident was in knowledge of the
respondents, no compensation was paid to him, by the
respondent-employer. With these averments, he filed the
claim petition before the Workmen Compensation
Commissioner, Haridwar and prayed for a sum of
Rs.5,56,775/- as compensation with 12% per annum
interest.
4. The claim was contested by the appellant-
Insurance Company and ex-parte proceedings were
initiated against the employer i.e. the owner of the truck.
The Insurance Company by filing its written statement
denied the employment of the deceased with the
respondent no.2 i.e. the Insured and denied the claim
petition in toto.
5. It was further contended by learned counsel of
appellant-Insurance Company that the deceased was
neither an employee of the respondent no.2 i.e. the
Insured neither was he receiving monthly remuneration
of Rs.5,000/-. It was also contended that the deceased
did not die during the course of employment neither was
he having a valid driving license nor was in possession of
valid requisite documents of vehicle at the time of
accident.
6. In order to prove its case before learned
Workmen's Compensation Commissioner, the claimant
got himself examined on oath and substantiated the facts
enumerated in the claim petition that his son deceased
Zrar Ahmad was working with respondent no.2 as driver
and on 02.06.2006, while he was transporting cattles
under the instructions of his employer i.e. respondent
no.2 met with an accident which resulted in fracture to
both of his legs which ultimately resulted in his demise.
He on oath also deposed that age of his son at the time of
accident was around 21 years and he was getting
Rs.5,000/- per month from respondent no.2. To prove
the death of his son, death certificate was also submitted
by him. He also submitted photocopies of registered
notices dated 31.07.2007 & 27.08.2007 sent to
respondent no.2 and also certified FIR Copy, original
registration certificate of vehicle, insurance policy, permit
to ply the vehicle, Form-H of the concerned vehicle, along
with certified copies of Medical Certificates.
7. Claimant also in order to prove his claim got
examined one Mr. Istkar Ahmad who on oath deposed
that he was the neighbor of deceased and was aware of
the fact that the deceased was in employment of
respondent no.2.
8. No documentary or oral evidences were
submitted by the appellant-Insurance Company to prove
that the deceased was not an employee of respondent
no.2 or that the said death did not occur during the
course of employment or had no nexus to the accident
occurred in course of employment.
9. The learned Workmen Compensation
Commissioner after hearing the counsel for the parties
awarded the compensation to the tune of Rs.3,73,230/-
payable by the appellant-Insurance Company within
thirty days from the date of order. The judgment further
enabled the Insurance Company to recover the said
amount from respondent no.2.
10. It is feeling aggrieved by the aforesaid
judgment and award dated 09.10.2013, the appellant-
Insurance Company is before this Court, by filing the
present appeal as stated above.
11. This Court on 28.04.2023 framed the following
substantial question of law "whether the insurance
company is liable to pay the compensation while it is well
proved that the deceased/driver of the vehicle was not
having a valid and effective driving licence at the time of
accident?"
12. It is vehemently contended by the learned
counsel for the appellant-Insurance Company that the
Company should not be held liable to pay the
compensation as it is proved that the deceased/driver of
the vehicle was not having a valid & effective driving
license at the time of accident.
13. I do not find any merit in the argument
advanced by the counsel on behalf of the learned counsel
for the appellant as it has been held by Hon'ble the
Supreme Court in multiple cases that insurer could be
ordered to pay the compensation and he is free to recover
it from the insured i.e. the owner of the vehicle in present
case. The judgments of the Hon'ble Apex Court relied
upon by the learned counsel for the appellant are as
follows:
(a) Oriental Insurance Company Ltd. vs. Sorumai
Gogoi and others; reported in 2008 (2) T.A.C. 5 (SC);
(b) Balu Krishna Chavan vs. The Reliance General
Insurance Company Ltd. & others; SLP(C) No.33638
of 2017 decided on 03.11.2022.
14. In the opinion of this Court, the judgments
relied upon are not applicable in the present set of facts
of this case and therefore, is of no help to the appellant-
Insurance Company.
15. In the case of Shamanna & others vs. The
Divisional Manager, the Oriental Insurance Co. Ltd. &
others, (2018) 9 SCC 650, the Hon'ble Supreme Court
held that if the driver of the offending vehicle does not
possess a valid driving license, the principle of pay and
recover can be ordered to direct the insurance company
to pay the victim and then recover the amount from the
owner of the offending vehicle.
16. It is strenuously submitted by the learned
counsel for the appellant that there was no relationship
between the deceased and the owner of vehicle i.e. the
Insured of Workmen and Employer, no evidence was
submitted by the appellant-Insurance Company
regarding this fact in the learned Tribunal below and the
learned Tribunal discussed this issue in great details, so
I don't find any merits in this argument as well.
17. It is further submitted by learned counsel for
the appellant that the concerned vehicle was plying
against terms and conditions of Insurance policy as he
was driving the vehicle without a valid driving license but
this point has been already dealt with in para 13 of this
judgment.
18. In this view of the matter, the substantial
question of law as quoted hereinabove is answered in
favour of the respondents and against the appellant-
Insurance Company. Resultantly, the appeal is
dismissed.
19. Let a copy of this judgment and order along
with TCR be transmitted to the court concerned for
compliance.
20. Pending application, if any, stands disposed of.
(Pankaj Purohit, J.)
21.02.2025
AK
