National Insurance Co. Ltd. vs Rajit Kumar and Others

Muzaffar Hussain Attar, J.—A claim petition came to be filed by the respondent No. 1 before the Commissioner under the Workmen's

Compensation Act, 1923 (Assistant Labour Commissioner), Jammu (for short 'the Authority'), on 16.1.2004, wherein he claimed that during the

course of his employment with respondent No. 2 as driver, he carried passengers from Akhnoor to Bhar Devta and Takal Battal. It was also

claimed by respondent No. 1 that near Ram Nagar Morh National Highway at about 10 a.m., a cow came in front of the vehicle which was driven

by respondent No. 1 and in order to save the cow which had suddenly come in front of the vehicle, he had to immediately apply brakes and

resultantly the vehicle skidded off the road and fell into a gorge. It was also claimed that he received injuries all over his body which included

fracture of his right hand. He specifically claimed that the injuries, which he had sustained, arose out of and in the course of his employment with

respondent No. 2. It was also claimed that the vehicle was insured with appellant herein at the time of accident. He claimed compensation for

having suffered permanent disability and requested that a direction be issued for payment of compensation in the amount of Rs. 3,00,000 with 18

per cent interest. It was also claimed that respondent No. 1 was receiving Rs. 4,000 per month as wages. On notice issued the appellant insurance

company filed objections in which it was specifically pleaded that it was not respondent-claimant but one Harjit Kumar alias Raju who was driving

the vehicle which met with an accident. It was also pleaded that the claim petition has not been drafted in accordance with the Workmen's

Compensation Act. Further plea was taken by the appellant insurance company in the objections that in absence of documentary evidence of the

claimant-respondent No. 1 being under the employment of respondent No. 2, the claim petition was not maintainable. It was also pleaded that

claim petition being time-barred merits dismissal. Further plea was taken that at the time of accident, the vehicle was not insured with the insurance

company. One more plea was taken that in view of breach of terms and conditions of the insurance policy, the appellant insurance company was

not liable to indemnify the insured in the event the direction was issued by the Authority for payment of compensation.

On the pleadings of the parties, the Authority framed three issues, which are taken note of:

(1) Whether the petitioner Rajit Kumar sustained injuries during and in the course of his employment with respondent No. 2?

(2) What were the wages and age of the petitioner at the time of accident? OPP

(3) Relief.

After the conclusion of the inquiry, the Authority issued direction u/s 4(i)(c) read with Schedule IV of the Workmen's Compensation Act, 1923,

to the respondent No. 2 for payment of an amount of Rs. 1,34,400 as compensation to the respondent No. 1-claimant. It was further directed that

the amount of compensation be paid to the respondent-claimant by the appellant insurance company. The appellant insurance company was

directed to deposit the compensation amount within 30 days from the date of announcement of the award. The award was announced on

11.5.2009.

Mr. Baldev Singh, learned counsel for the appellant, vehemently argued that the award is bad in law, inasmuch as the owner of the vehicle was

not authorised to ply the vehicle on the route where it met with an accident. Learned counsel, accordingly, submitted that this is the only issue

involved in this appeal, which would require to be adjudicated upon.

The appellant insurance company has not specifically pleaded in its objections before the Authority that the driver of the owner was not

permitted to ply the vehicle on the route where it met with an accident. This plea is first time taken in the memo of appeal.

Additional pleas can be taken before the Authority or the court of original jurisdiction by way of amendment of pleadings. Question of fact

cannot be raised for the first time before the appellate court. It is on the basis of pleadings of the parties that the issues were framed and evidence

was led. When a fact is not specifically pleaded, even if evidence is led in respect of it, that evidence cannot be considered and looked into. The

parties have to plead the facts and prove them by leading evidence. If the plea is permitted to be taken for the first time at appellate stage, it will

certainly affect valuable right of the other side, inasmuch as the other side will be prevented from controverting the same and from leading evidence

in rebuttal. Principles of natural justice will be violated. In these facts and circumstances of this case, no substantial question of law is involved in

this appeal. The judgments referred to by the learned counsel for the appellant reported in 2012 (4) JKJ 388 (HC) and National Insurance Co.

Ltd. Vs. Challa Bharathamma and Others, proceed on their own facts. The facts of this case are not similar to the facts of the aforementioned

cases. This case is covered by the decision of this court in the case titled Oriental Insurance Co. Ltd. Vs. Sunita Devi and Others, Bindra Devi and

Others, Asha Devi and Others and Om Devi and Others The appeal in terms of section 30 of the Act of 1923 can be admitted only when

substantial question of law is involved. Since no substantial question of law is involved in this appeal, it merits dismissal.

The appeal along with connected CMA(s) is dismissed in limine.