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Judgment
Prabha Sridevan, J.—The Insurance Company has preferred this Civil Miscellaneous Appeal against the Award dated 25.12.2002 passed
by the Commissioner for Workmen''s Compensation (Deputy Commissioner of Labour), Madurai in W.C. No. 198 of 2001.
The ground on which the appeal has been filed is that the Policy - Ex.R.3-3 would show that the vehicle was insured on 21.01.2000 for the
period from 21.01.2000 to 20.01.2001 and the date of the accident was 16.01.2000 on which date there was no insurance cover and therefore
the Insurance Company is not liable to pay any compensation. The question of negligence or the quantum is not in dispute. The only dispute is with
regard to the question whether the vehicle was covered.
Both the learned Counsel for the appellant and the first respondent made their submissions. Learned Counsel for the appellant relied on the
decisions in United India Insurance Co., Ltd. v. R. Venkatesan and Anr. 2004 (2) TN MAC 309 , New India Assurance Company Limited v.
Anitha @ Thanga Amutha 2006 (1) TN MAC 285, Narcinva V. Kumar and Anr. v. Alfredo Antonio Doe Martins and Ors. 1985 A.C.J. 397 ,
Oriental Insurance Company Limited Vs. Naravath Najiram and others, and New India Assurance Co. Ltd. Vs. S. Sulochana and Others, .
Learned Counsel for the first respondent/Claimant also relied on New India Assurance Co. Ltd. Vs. S. Sulochana and Others, , New India
Assurance Co., Ltd. v. Prafulla Kumar Das and Ors. 1989 (2) T.A.C. 416, and Oriental Insurance Co. Ltd. Vs. Jalaja and Others, .
R.W.1 - B.R. Manoharan, Assistant Divisional Manager was examined on behalf of the Insurance Company and his evidence is very much
relevant. According to him, the Insurance Company took the Original Policy on 20.01.2000 and the vehicle was insured from 21.01.2000 to
20.01.2001. He has stated that there is no insurance for the period before 21.01.2000. He has stated that the original proposal will be given only
to persons who apply for insurance for the first time and for previous policy holders, renewal notice would be sent. He has filed Ex.R.3-1 Proposal
form dated 20.01.2000, Ex.R.3-2, which is copy of premium receipt dated 21.01.2000, Ex.R.3-3 copy of Insurance Policy, Ex.R.3-4 Motor
Register for the year 1999 - 2000 and Ex.R.3-5 Motor Register for the year 2000 - 2001. The Commissioner for Workmen''s Compensation held
that ""Ex.R.3-3 is the copy of the certificate of Insurance issued to the first respondent by the third respondent. This policy has been insured based
on the proposal form Ex.R.3-1 submitted by the first respondent. This proposal form is the printed format issued by the third respondent. The year
of the Manufacture of the car is mentioned as 1997 in Ex.R.3-1, the proposal form and Ex.R.3-3, the certificate of insurance, Ex.A.8 is the
Registration Certificate which shows the registration of the Car was 27.05.1997. This vehicle has been purchased with financial assistance from
District Central Co-operative Bank, Sivagangai. Hence, it is sure that the vehicle should have been insured from the date of registration"". R.W.1
has stated that there is no policy cover on the date of the accident. He has also produced Ex.R.3-4 and Ex.R.3-5 Motor Registers for the year
1999 - 2000 and 2000 - 2001 to show that the vehicle was not insured with them. The Commissioner for Workmen''s Compensation poses the
question that the pertinent and important aspect is ""what is the fate of insurance company for the vehicle from 27.05.1997?"". When there is nothing
to show what happened on 27.05.1997, the date of registration of the vehicle, it would not be safe to presume that the appellant alone would have
insured the vehicle. The Commissioner has presumed that the vehicle must have been insured from the date of registration since it was purchased
from the financial assistance of the Bank. The Commissioner has also presumed since there is no mention as this is the first policy, it cannot be the
first policy and the vehicle must have been insured earlier. Then, the Commissioner has taken note of the fact that the total premium has been
reduced from Rs. 2,135/- to Rs. 1,808/- and wondered why this reduction has been made and how collection of Rs. 1,808/- was made.
It is seen from Ex.R.3-2 that the basic premium was reduced to Rs. 1,808/- and the corresponding reduction has been made. On the fact that
some arithmetical corrections have been made in the policy, nothing follows, especially when no question has been asked of the witness as to why
they reduced it from Rs. 2,135/- to Rs. 1,808/-. The Commissioner specifically refers that the vehicle is the old vehicle and the policy is the first
coverage of the third respondent. The Commissioner fixed the blame on the Insurance Company for not physically verifying the vehicle on the date
of the policy. The reasoning is erratic to put it mildly. There is absolutely no evidence before the Court to come to the conclusion that in 1997, the
vehicle was insured or that the owner had insured the vehicle prior to 21.01.2000. The Insurance Company has produced two registers for two
earlier years just to show that there was no policy in force in respect of the vehicle. It is true that they had not produced the registers for the year
1997 - 1998 and 1998 - 1999, but that does not matter since two years prior to the accident, there is no policy in force, covering the vehicle in
question.
The Commissioner for Workmen''s Compensation has relied on the decision in New India Assurance Co. Ltd. Vs. S. Sulochana and Others, .
But, in that case, non-renewal of policy not proved by the Insurance Company by producing relevant documents. Therefore, it will not apply to the
present case. The Commissioner has also relied on the decision in Narcinva V. Kumar and Anr. v. Alfredo Antonio Doe Martins and Ors. 1985
A.C.J. 397 where the Supreme Court held that the entire onus is on the Insurance Company to prove that it is not liable to pay any compensation.
In the case on hand, the Insurance Company has produced two documents to show that for the first time on 21.01.2000, the vehicle was insured
and since the accident had taken place on 16.01.2000, the vehicle was not covered on the date of the accident. I am of the opinion that the
Appellant has discharged his onus fully and nothing remained to be discharged. It is for the claimant to prove that notwithstanding the ledgers, there
was a policy in force.
Now, let us examine the decisions given by the counsel on both sides. In New India Assurance Company Limited v. Anitha @ Thanga Amutha
2006 (1) TN MAC 285 there was no proof to show that the vehicle was insured on the date of the accident. The insurer produced relevant policy
which showed vehicle insured from 15.04.1993 to 14.04.1994. The accident had taken place in 1991. This Court held that it cannot be presumed
that even in the year 1991, the vehicle was insured only with the insurer and that the claimants should have taken steps to collect the particulars of
Insurance for the period 1991. In this case, even that question does not arise since the Insurance Company has produced documents to show that
there is no insurance cover to the vehicle in question.
In United India Insurance Co., Ltd. v. R. Venkatesan and Anr. 2004 (2) TN MAC 309, a Division Bench of this Court had given detailed
directions which are mandatory for all parties / officers, namely police officers / investigation officers / Motor Vehicle Inspectors and claimants as
well as Insurance Companies to adhere to the provisions strictly. In that direction (v) reads as follows:
The claimants are duty bound to furnish correct registration number of the vehicle, full insurance particulars as furnished by the police officer /
investigation officer. If details are wanting at the time of filing of the claim petition, it is the duty of the claimants to ascertain all those particulars
either from the police officer / investigation officer or from the Motor Vehicle Inspector of the Transport Department or from the Tribunal having
jurisdiction and mention those particulars in the claim petition.
In that case, the Division Bench held that though the claimants had not furnished the full details, the Insurance Company with some more efforts or
interest would have ascertained the correct information as to whether the policy referred to in the claim petition was taken by the owner of the
vehicle that too in the office. In this case, the particulars given were enough to indicate that the insurance was taken only on 21.01.2000. Nothing
was produced on behalf of the claimant to show that on the date of the accident, there was insurance coverage to the said vehicle.
In New India Assurance Co. Ltd. Vs. S. Sulochana and Others, when the accident took place on 22.06.1990, the policy had expired on
07.06.1990 and when non-renewal of policy not proved by the Insurance Company, this Court held that the Insurance Company failed to
discharge its burden that on the date of accident there was no renewal of policy or that it was got renewed after the accident. It does not help the
claimant in this case.
In Oriental Insurance Company Limited Vs. Naravath Najiram and others, , learned Single Judge of Andhra Pradesh High Court held that
when a policy obtained three days after the accident, was made effective from the date of accident, but no specific time of commencement is
mentioned in it, then the policy becomes operative from the previous day midnight, by relying on the decisions of the Supreme Court in New India
Assurance Co. Ltd. Vs. Ram Dayal and Others, and Oriental Insurance Co. Ltd. Vs. Sunita Rathi and Others, . This also does not help the
claimant since the policy became operative on 21.01.2000 only.
In Oriental Insurance Co. Ltd. Vs. Jalaja and Others, the Insurance Company did not take steps to summon the owner to produce original
policy and in those circumstances, wherein a Division Bench held that adverse inference is drawable against the owner for non-production of the
original policy. This does not help the claimant since the Insurance Company stand by the policy, which was taken on 21.01.2000.
In New India Assurance Co., Ltd. v. Prafulla Kumar Das and Ors. 1989 (2) T.A.C. 416, G.B. Patnaik, J., (as he then was) held as follows:
...The statute had made the insurance company liable to pay the amount irrespective of the fact whether the policy once granted has been cancelled
in the meantime. The use of the expression ""notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled
the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree..."" in Section 96(1) of the
Act....
This refers to old Act, 1939. The words are identical in Section 149 of the new Act 1988. In this Judgment no dates are given. We do not know
when the accident took place and whether the policy had been cancelled for non payment of premium and in the meantime the accident had taken
place because learned Judge uses ""the policy had been cancelled"". In any event, in the present case, there is nothing to show that policy was in
force on the date of the accident. So, this case also does not help the claimant.
For the above said reasons, this Civil Miscellaneous Appeal is allowed. This Court, by order dated 30.04.2003 permitted the first
respondent/Pappathi to withdraw Rs. 50,000/- from and out of the amount deposited. It is for the Insurance Company to recover the same from
the insured and the Insurance Company is also permitted to withdraw the balance amount. As regards the claimants, they are entitled to recover
the compensation amount less the amount that has been withdrawn pursuant to the direction of this Court from the insured i.e., the owner of the
vehicle. No costs. Consequently, the connected C.M.P. Nos. 3648, 5776 and 5777 of 2003 are closed. Cross Objection No. 32 of 2004
The only ground raised is that on the date of the accident, G.O.Ms. No. 102 Labour and Employment Department dated 22.02.1999 fixes the
Driver''s salary at Rs. 2,849/- per month, inclusive of basic pay and eligible dearness allowance. When that is so, the Commissioner ought not to
have restricted it to Rs. 2000/- per month.
The above said submission is without any substance. The Commissioner has merely followed the Explanation II of Section 4(1)(b) of the
Workmen''s Compensation Act before the amendment which applies to cases of death resulting from injury and it provide that where the monthly
wages of workmen exceeds Rs. 2,000/-, the monthly wages shall be deemed to be Rs. 2000/-. Hence, this Cross objection fails and the same is
dismissed.