Oriental Insurance Company Ltd. vs Reena and Others

Rajiv Sharma, J.—This appeal is instituted against the order dated 19.5.2015, rendered by the learned Commissioner, Employees Compensation, Chamba, Distt. Chamba, H.P. in WCA No. 93 of 2013.

Key facts, necessary for the adjudication of this FAO are that respondents No. 1 to 5 have filed an application under Section 22 of the Employees Compensation Act, 1923, against respondent No. 6 and appellant-Insurance Company, seeking compensation on account of death of their predecessor Narinder Kumar. He was employed with respondent No. 6 as driver. He was driving vehicle No. HP-68-4949 towards Chamba side. The accident took place and Narinder Kumar died. His monthly income was Rs. 6,000/- plus Rs. 100/- per day. He was around 30 years of age.

The petition was contested by respondent No. 6. It was admitted by respondent No. 6 that the deceased was in his employment. However, it was denied that his monthly income was Rs. 6,000/- plus Rs. 100/- per day. According to him, the salary of the deceased was Rs. 5,000/- per month.

The petition was also contested by the appellant-Insurance Company. According to it, there was no existence of employer-employee relationship. The vehicle was being driven in violations of the Insurance Policy. The bus in question was overloaded.

The learned Commissioner framed the issues on 2.9.2013. The learned Commissioner awarded a sum of Rs. 11,10,599/-. Hence, this appeal.

Mr. Ashwani K. Sharma, Sr. Advocate for the appellant, has vehemently argued that there was no employer-employee relationship between Narinder Kumar and respondent No. 6. He also argued that there was breach of the insurance policy.

I have heard learned counsel for the parties at length and gone through the records and order very carefully.

AW-1 Dr. Dilbag Singh, has proved post mortem examination report Ext. AW-1/A. AW-2 Reena is one of the claimants. She is the widow of the deceased employee. She tendered her evidence by way of affidavit Ext. AW-2/A. She also proved copy of Parivar Register vide Ext. AW-2/B and death certificate of the deceased Narinder Kumar vide Ext. AW-2/C. AW-3 HC Pa wan Kumar has proved copy of FIR No. 186 of 2012 dated 11.8.2012.

The employer-employee relationship has been admitted by respondent No. 6, the owner of the vehicle in question. The accident has taken place when the deceased was in the employment of respondent No. 6. The factum of accident has been admitted by respondent No. 6. The claimants were dependent on the income of the deceased. It was duly proved from the evidence on record that the deceased was getting monthly payment of Rs. 6,000/- alongwith Rs. 100/- per day as diet money. The appellant and respondent No. 6 have not led any evidence to rebut the same. The factum that the bus was over-crowded will not absolve the Insurance Company to pay compensation to the driver.

The driving licence of the deceased is Ext. D-2. He was authorized to drive the transport as well as non-transport vehicles, including public service vehicles i.e. Bus. According to the report of the Sub Divisional Magistrate, it was the deceased who was driving the bus at the time of the accident. It was for the insurance Company to prove that the deceased was not holding valid and effective driving licence at the time of accident.

Their Lordships of the Hon''ble Supreme Court in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, have held that the onus was on the insurance company to prove that the driver had no driving licence to escape liability. Their lordships have held as under:

"[14] The last question is whether he had a valid driving licence. The High Court has not recorded a clear cut finding on this point. The finding of the Tribunal is more evasive than the one by the High Court. Mr. Sharma did not dispute that the second appellant had a driving licence. His grievance is that he having failed to produce the same when called upon to do so in the cross-examination, an adverse inference be drawn against him that he did not have a valid licence to drive a pick-up van. The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R.T.A. which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate his allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company.

[15] To sum up the insurance company failed to prove that there was a breach of the term of the contract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance."

The date of birth of deceased is 20.10.1982. He was 29 years of age. The learned Commissioner, has correctly applied the appropriate factor on the income of Rs. 4000/-. The Insurance Company was also liable to pay interest @ 12% per annum.

Accordingly, there is no merit in this appeal and the same is dismissed.