Oriental Insurance Company Ltd vs Thummala Vimalamma

Anil Kumar Jukanti, J

1.This Civil Miscellaneous Appeal is filed aggrieved by order dated 03.09.2007 passed in W.C.No.204 of 2005 on the file of Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Nalgonda (for short ‘the Commissioner’).

Heard Mr. N.J.Sunil Kumar, learned Standing Counsel for the appellant and Mr. Subbagari Sudarshan Reddy, learned counsel for respondent No.1.

Brief facts:

Appellant herein is Insurance Company (opposite party No.2), respondents herein are applicant and opposite party No.1 (owner of the vehicle) before the Commissioner. The applicant is the mother of the deceased (Thummala Mahendar Reddy), who was under the employment of opposite party No.1 as a Driver on DCM Van bearing No.AP-10-U-2689. On 28.10.2005, while the deceased-Driver was proceeding in vehicle from Hyderabad to Vijayawada with a load of iron pipes, when the vehicle reached Dorakunta Village (at K.M. Stone No.186/8), the deceased lost control of the steering of vehicle and dashed a lorry bearing No.AP-16-V-7867 from backside. The deceased-Driver sustained grievous injuries and died on the spot. A case in Cr.No.152 of 2005 was registered under Section 304A of Indian Penal Code, 1860 (for short ‘IPC’) in P.S. Kodad Rural of Nalgonda District.

3.1 Applicant claims that the deceased was aged 22 years at the time of death and contributing for the maintenance of the family and sought an amount of Rs.5,00,000/- as compensation from opposite party Nos.1 and 2 jointly and severally.

3.2 The vehicle was insured vide policy bearing No.6467/2005, valid from 29.01.2005 to 28.01.2006. The accident occurred on 28.10.2005, as on the date of the accident, the policy was in existence. Opposite party No.1 (owner of the vehicle) did not file his counter and was set ex-parte.

3.3 Learned Commissioner, after examining PW.1 for applicant, RW.1 for opposite party No.2-Insurance Company and taking into consideration Exs.A1 to A5 for applicant and Ex.B1 for opposite party No.2, vide order, dated 03.09.2007, held that opposite party Nos.1 and 2 are jointly and severally liable to pay an amount of Rs.3,55,741/- with interest @ 9% per annum within 30 days from the date of receipt of the order. Challenging the said order, opposite party No.2 (Insurance Company) filed the present appeal.

Learned Standing Counsel for appellant-Insurance Company submitted that deceased-Driver was not having a valid driving licence at the time of accident. It is further submitted that owner of the vehicle (opposite party No.1), in spite of having knowledge that the deceased was not having a valid driving licence, handed over the vehicle to the deceased for driving and violated the policy terms and conditions. It is also submitted that it is the duty and responsibility of the owner of the vehicle to ascertain and verify that the driver of the vehicle has a valid driving licence at the time of employment/appointment, in the absence of verifying, the Insurance Company is not liable to pay the compensation awarded, has to be paid by the owner of the vehicle.

4.1 It is submitted that a counter affidavit is filed on behalf of Insurance Company and RW.1 was examined on behalf of Insurance Company. It is further submitted that RW.1 deposed that the deceased was working as a Driver on DCM Van, but no driving licence was filed and for failure on the part of opposite party No.1 to ascertain and verify about the driving licence, Insurance Company cannot be mulcted to pay the compensation. It is also submitted that the deceased was not working as a Driver as on the date of the accident and that there was no employer-employee relationship. That Civil Miscellaneous Appeal deserves to be allowed.

4.2 Learned Standing Counsel for appellant-Insurance Company relied on the judgment in United India Insurance Co. Ltd. vs. Jaidu Venkatamma and others C.M.A.No.776 of 2012 dated 22.07.2024, inviting the attention of this Court to paragraph Nos.19 to 22, it is submitted that Insurance Company be permitted to proceed against opposite party No.1 (owner of the vehicle).

Learned counsel for respondent No.2-applicant submitted that deceased, while driving the DCM Van, lost control of the vehicle and dashed a lorry bearing No.AP-16-V-7867 from backside. That the deceased-Driver suffered injuries and died on the spot. That a case in Cr.No.152 of 2005 was registered under Section 304A of IPC in P.S. Kodad Rural of Nalgonda District. It is also submitted that perusal of the Exs.P1 to P5 (i.e., FIR, inquest report, copy of P.M.E. report, charge sheet and photocopy of insurance policy) would indicate that the deceased was working under opposite party No.1 as a driver on DCM Van as on the date of the accident and that the death was during the course of employment, while discharging his duties as a Driver, that there was an employer-employee relationship.

5.1 It is submitted that the Insurance Company did not lead any evidence with regard to the driving licence and if the Insurance Company has raised the defense that the deceased was not having a valid driving licence, it was open for the Insurance Company to summon the Transport Department authorities and examine them in support of their defense that the deceased did not possess a valid driving licence. That in the absence of such evidence being adduced by the Insurance Company, the Insurance Company cannot sustain the stand/defense. It is further submitted that during the course of employment, the deceased met with an accident and died on the spot and that opposite party No.2 is liable to pay compensation as the vehicle was insured by opposite party No.1 vide policy No.6467/2005, valid from 29.01.2005 to 28.01.2006 under the category of Goods Carrying Commercial Vehicle.

5.2 Learned counsel relied upon the judgment in United India Insurance Co. Ltd., Secunderabad vs. Mohd. Khaleel Khan and others 2016 (2) ALD 85 for the proposition that Insurance Company cannot be exonerated of its liability on the ground of applicant’s failure to produce the driving licence. It is submitted that non-production of driving licence is a different aspect to that of non-holding of a driving licence. That in the present case, it is only an issue of non-production of driving licence. It is further submitted that the burden lies on the Insurance Company to establish that the deceased was not having a valid and effective driving licence and that owner of the vehicle intentionally and willfully entrusted the vehicle to the deceased knowing fully well of deceased not having a valid driving licence. It is lastly submitted that Commissioner rightly held that Insurance Company is liable to pay the compensation and that no interference is necessitated.

Heard learned counsels, perused the record and considered the submissions.

The deceased-Driver was working under the employment of opposite party No.1 as Driver on DCM Van bearing No.AP-10-U-2689. On 28.10.2005, at about 09:00 p.m., when the deceased was driving the DCM Van from Hyderabad to Vijayawada with a load of iron pipes, the vehicle on reaching Dorakunta Village dashed a lorry bearing No.AP-16-V-7867 from backside as the deceased-Driver lost control of the vehicle. The deceased-Driver sustained grievous injuries and died on the spot.

A case in Cr.No.152 of 2005 was registered under Section 304A of IPC in P.S. Kodad Rural, Nalgonda District. The deceased was aged 22 years at the time of death. Applicant, mother of the deceased, was examined as PW.1. Exs.A1 to A5 were marked on behalf of applicant. PW.1 deposed that her son (deceased) was employed under opposite party No.1 and while working as a Driver, he met with an accident and died on the spot. In the cross-examination by counsel for Insurance Company, nothing contrary was elicited from PW.1.

Administrative Officer of the Insurance Company was examined as RW.1, he stated that policy was existing for the category of Goods Carrying Commercial Vehicle, as per the deposition of RW.1, the deceased was working as Driver on the DCM Van, but has not filed the driving licence.

The contention of the Insurance Company was that though the deceased was not having a valid driving licence, opposite party No.1 has given the vehicle to deceased for driving. It was also contended that in the absence of driving licence, the Insurance Company is not liable to pay, as it was the responsibility of the owner of vehicle to ascertain about the licence before handing over the vehicle to the Driver. In ground No.3 also, it has been raised that respondent herein failed to file/produce the driving licence, but it was never the contention that the driver was not holding a driving licence. This defense was raised by the Insurance Company and to sustain this defense, the Insurance Company could have examined any of the competent authorities of the Transport Department. The Insurance Company was at liberty to call the authorities into the witness box, but for reasons best known, no officer/staff was examined from the office of Transport Department to ascertain whether the deceased was having a valid driving licence. In the absence of examination, the defense raised cannot be sustained.

Commissioner considered Exs.A1 to A5 i.e., FIR, inquest report, copy of P.M.E. report, charge sheet and photocopy of insurance policy and on the basis of the contents in all these documents, held that there was an employer-employee relationship and the death of the deceased was during the course of employment. No contrary evidence has been brought on record by Insurance Company.

In the case of Mohd. Khaleel Khan (supra), a learned Single Judge of this Court held that for the death of workman out of and in course of employment under the insured, the insurer cannot be exonerated of its liability on the ground of failure of applicant to produce driving licence. It was further held that non-production of driving licence of a Driver is different to that of non-holding of driving licence.

Learned Standing Counsel for appellant-Insurance Company pointed out that opposite party No.1 did not verify and ascertain about the driving licence of the deceased and handed over the vehicle to deceased. It is not the case of Insurance Company that the deceased-Driver was not holding an effective driving licence, the contention was that a copy of the driving licence was not produced. In such an instance, to exonerate from its liability, the insurer has to establish that the insured intentionally and willfully entrusted the vehicle to a person who was a non-holder of licence and as such, there was violation of terms and conditions of the policy.

The Insurance Company did not adduce any evidence to establish that the Driver was not holding a driving licence nor it was able to prove that there was any violation of terms and conditions of the policy by examining the owner of the vehicle in handing over the vehicle to a person who was not holding a driving licence. In the absence of any substantiation of a stand, the insurer would be liable to pay the amount. Mere contention or raising a ground is not suffice to disown the liability by the Insurance Company to pay the compensation. It is trite law that once a defense is put forth, the defense needs to be sustained by adducing evidence in the form of documents or by eliciting depositions or statements from witnesses.

In the present facts of the case, Insurance Company was at liberty to adduce in evidence any of the officers or staff of the Transport Department. It appears no steps were taken to examine any of the officers or staff of the Transport Department. In the absence of any such steps having been taken to support and sustain the defense, such a stand has to fall and it does so in the present case.

Commissioner considered the minimum wages fixed by Government of Andhra Pradesh for the workers employed in Public Motor Transport Undertakings and rightly fixed the wages of the deceased as that of a light vehicle driver employed in Public Motor Transport as on the date of the accident at Rs.3,214/- per month, as no evidence was adduced by applicant to sustain that the applicant’s son (deceased) was being paid an amount of Rs.4,500/- per month as salary. Ex.A3 was considered for the age of the deceased as 22 years, Commissioner rightly did so.

The Hon’ble Apex Court, while dealing with the scheme of the Workmen’s Compensation Act, 1923, in Golla Rajanna and Others vs. Divisional Manager and another (2017) 1 SCC 45, held as follows:

“10. Under the scheme of the Act, the Workmen’s Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.”

The said principle/view is reiterated by the Hon’ble Apex Court in Fulmati Dhramdev Yadav and Another vs. New India Assurance Co. Ltd., and another 2023 SCC OnLine SC 1105.

This Court does not find any infirmity or illegality in the order of the Commissioner. No question of law, much less a substantial one, arises for consideration. Civil Miscellaneous Appeal is devoid of merits, is liable to be dismissed.

For reasons aforesaid, Civil Miscellaneous Appeal is dismissed. No order as to costs.

Miscellaneous applications pending, if any, shall stand closed.