The Manager vs Mallika and Others

R. Karuppiah, J.—This Civil Miscellaneous Appeal has been filed as against the award passed in W.C. No. 164 of 2005, dated

17.01.2006 on the file of the Commissioner for Workmen Compensation, Tiruchirappalli. The respondents 1 to 4 who are claimants in the W.C.

Proceedings, claimed compensation of Rs. 10,00,000/-, and in the claim petition it is stated that the deceased Murugesan was working as lorry

driver in a lorry bearing Registration No. TN-49-L-6667, belonging to the fifth respondent herein/first respondent in above said O.P. On

10.10.2004, while driven the said lorry to Aranthangi along with the cleaner namely, Mathivanan, at about 6.30 a.m., while the lorry proceeded

towards Kallipattu Main Road, Villupuram District, with minimum speed adopting all traffic rules, it dashed against a Tractor which came from the

opposite direction at high speed. Due to the said impact, the said Murugesan sustained grievous injuries and he died on the way to the hospital.

The Police registered a criminal case in Crime No. 869 of 2004 under Sections 279, 337 and 304 IPC. The age of the deceased-Murugesan at

the time of accident, was 33 years. The claimants are the wife, son and parents of the deceased. They claimed a compensation of Rs. 10 lakhs,

before the Commissioner for Workmen Compensation, Tiruchirappalli, against the owner and insurer of the vehicle.

The fifth respondent herein, who is the owner of the vehicle had not appeared before the Commissioner and she remained ex-parte.

Appellant/second respondent in the Proceedings, filed counter in which it is stated that the claimants have not produced any document to prove

that the victim had died in the course of employment. It is also averred in the counter that the legal heirs of the deceased had not produced the

driving license of the deceased and the compensation claimed by the claimants are excessive.

Before the Commissioner, on the side of the claimants, the wife of the deceased was examined as P.W. 1 and marked nine documents as Exs.

P1 to P9. On the side of the Appellant Insurance Company, no oral or documentary evidence. Based on the materials and evidence adduced on

the side of the claimants, the Commissioner for Workmen Compensation discussed and held that the deceased died only in the course of

employment and hence passed an award and directed the Appellant-Insurance Company to pay a sum of Rs. 3,89,990/-, towards compensation

to the claimants. Aggrieved over the award passed by the Commissioner, the present Civil Miscellaneous Appeal has been filed by the Insurance

Company.

The learned counsel for the appellant Insurance Company mainly contended that at the time of accident, the deceased was not having valid

driving license and therefore, the Insurance Company is not liable to pay any compensation. He further submitted that as per the settled principles

of law laid down by the Hon''ble Supreme Court, the Commissioner ought to have passed an order of pay and recovery from the owner of the

vehicle and hence prayed for grant of the said relief of pay and recovery.

The learned counsel for the appellant Insurance Company has not seriously objected the finding of the Commissioner that the deceased was a

workman under the owner of the lorry. He also not objected the quantum of compensation awarded. Therefore, the only question to be decided

by this Court is as to whether the Insurance Company has to be directed to pay the above said compensation and then recover it from the owner

of the vehicle, or not.

As already stated supra, the owner of the vehicle has remained ex-parte before the Commissioner for Workmen Compensation. There is also

no representation for the owner of the vehicle/fifth respondent herein, before this Court also, in spite of notice served. Even on the side of the

claimants, they have no serious objection to pass such an order of pay and recovery. It is also revealed that the accident occurred on 10.10.2004.

Ex. P9-Driving License produced on the side of the claimants, would reveal that the deceased was having valid driving license only up to

22.08.2004. In the above stated circumstances, as rightly pointed out by the learned counsel for the appellant, since the owner of the vehicle

remained ex-parte before both Courts and Ex. P9 also reveal that no driving license for the driver of the vehicle and therefore, the appellant

Insurance Company is entitled the relief of pay and recovery as prayed for in this appeal. Learned counsel for the appellant Insurance Company

also informed that entire compensation already deposited by the appellant. In the result, the Civil Miscellaneous Appeal is partly allowed and the

award passed by the Commissioner is confirmed and the claimants are permitted to withdraw the deposited award amount. It is further permitted

the Appellant Insurance Company to recover the same from the fifth respondent herein/who is the first respondent in the W.C. Proceedings. No

costs. Consequently the connected miscellaneous petition is closed.