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Judgment
S.N. Satyanarayana, J.—The 2nd Respondent/insurance company in CR. No. 6/2007 on the file of Commissioner for Workmen''s Compensation, Chitradurga has come up in this appeal challenging the liability to pay compensation to the claimants fastened on it in the said proceedings by order dated 11.5.2010.
Brief facts leading to this appeal are:
The case of claimants is that their son Umesh Kumar driver of lorry bearing No. MH. 12/0871 belonging to 1st Respondent and insured with 2nd Respondent met with an accident on 30.9.2004 in the course of his employment. The said accident took place between Hiriyur and Shira on NH. 4 near the land of Shanmukappa resulting in injuries leading to his instant death. Hence, parents of deceased filed claim petition against his employer/1st Respondent and insurer of the said vehicle/2nd Respondent, seeking compensation for his death. In the said proceedings on behalf of claimants 1st claimant adduced evidence and produced in all 12 documents in support of their case, which are at Exs. P1 to P12. On behalf of insurance company an officer of insurance company adduced evidence and produced in all 16 documents, which are marked as Exs. R1 to R16.
On appreciation of the oral and documentary evidence available on record the Commissioner proceeded to accept that death of Umesh Kumar is in the course of his employment under 1st Respondent while discharging his duty as driver of lorry bearing No. MH. 12/0871. Since the said lorry being insured with 2nd Respondent both 1st and 2nd Respondents were jointly and severally made liable to pay compensation to claimants in a sum of Rs. 3,56,738/- with interest at 12% p.a., from 30th day of accident till date of deposit of entire amount.
2nd Respondent insurance company being aggrieved by the same has come up in this appeal contending that it has produced in all 16 documents before Commissioner to demonstrate that deceased Umesh Kumar was not having valid driving licence at the relevant time of accident. The licence, which is produced and relied upon by claimants, is fake document. In view of the fact that deceased was not having valid driving licence at the relevant time there is violation of the terms of policy issued by insurance company. It is also the ease of insurance, company that according to intimation received from RTO, Jaipur, if the fake driving licence said to have been issued to deceased Umesh Kumar is accepted as genuine, he would be a minor as on the date of issue of licence. Therefore, based on the documents the relationship of employer and employee between deceased Umesh Kumar and 1st Respondent cannot be accepted and there is error on the part of Commissioner in allowing the claim petition fastening liability to pay compensation on insurance company.
On going through the grounds of appeal and finding of Commissioner this Court find the following substantial questions of law arise for consideration in this appeal:
1) Whether there is perversity on the part of Commissioner in appreciation of evidence available on record insofar as accepting the deceased Umesh Kumar as driver under 1st Respondent/owner of lorry bearing No. MIL 12/0871?
2) Whether the Commissioner was justified in awarding interest to claimants at 12% from 30th day of accident, contrary to the decision of Apex Court?
Heard the counsel for Appellant and Respondent. On reappreciation of pleadings, oral and documentary'' evidence available on record with reference to grounds of appeal and finding of Commissioner in the order impugned this Court answer the 1st substantial questions of law framed as above in the affirmative and 2nd substantial question of law in the negative for the following reasons:
REASONS
The fact that claimants 1 and 2 are parents of deceased Umesh Kumar is not in dispute. Similarly 1st Respondent as owner of lorry bearing No. MH. 12/0871, which is insured with 2nd Respondent is not in dispute. Now the point that arise for consideration is whether deceased Umesh Kumar was having valid driving licence as on the date of accident to be accepted as a legitimate driver to drive the vehicle bearing No. MH. 12/0871 under 1st Respondent and his employment as driver under 1st Respondent could be accepted for the purpose of awarding compensation and also fastening liability on 2nd Respondent insurance company.
The material evidence on record discloses that claimants in their evidence have produced and relied upon certain documents which includes a driving licence said to have issued by RTO, Jaipur in favour of deceased. The said licence is supposed to be issued to him on 27.12.1996 by Jaipur RTO. 2nd Respondent has written a letter to the said RTO, Jaipur vide Ex. R14 enclosing a xerox copy of the licence produced by claimants for the purpose of securing compensation. The 2nd Respondent secured reply for the said correspondence from the office of RTO, Jaipur vide letter dated 6.9.2007, which is at Ex.R4 wherein the reply from the said RTO state that the copy of licence sent for verification is a fake document. Similarly, the document which was produced by them to show that his date of birth is 1.1.1979 also proved to be false document. The insurance company has corresponded with relevant RTO and other authorities who are said to have issued certificates produced and marked by claimants and have clearly established that all those documents are fake documents. Inspite of those documents being available on record the Commissioner has dealt with the same in a clumsy manner and by giving a flimsy reason that translated English copy is not properly seen and verified, therefore, the said document cannot be looked into. The reason given by Commissioner is ridiculous and unacceptable. More particularly, for the reason, majority of the orders passed by Commissioner, Chitradurga are invariably in favour of false and frivolous claims. Any document produced before the said authority to demonstrate fraud the same is conveniently ignored. In the instant ease also, the same exercise is done by Commissioner with the sole intention of accommodating claimants. It is seen that, the Commissioner has deliberately ignored the material evidence available on record which clinchingly decide that entire claim made by claimants is false, frivolous and based on fake and cooked up documents. When documents available on record clearly establish this, there is total perversity on the part of Commissioner in ignoring the same and trying to support an unjust, claim.
It is also seen that besides perversity in appreciation of evidence available on record, there is an attempt on the part, of Commissioner to falsify the records in accepting the things which are not existing on record to demonstrate the same. Particularly in page 6 of the judgment while considering issue No. 1 it is stated that there is admission on the part of 1st Respondent, regarding relationship of employee and employer between deceased Umesh Kumar and 1st Respondent. However, in the entire records which is sent by Commissioner neither vakalath of 1st Respondent nor statement of objection if any filed on behalf of 1st Respondent admitting relationship of employee and employer between him and deceased Umesh Kumar is forthcoming. Hence, in view of the above, 1st substantial question of law is answered in the affirmative in favour of 2nd Respondent insurance company.
Now coming to 2nd substantial question of law whether claimants are entitled to seek interest at 12% p.a., from 30th day of accident, the same is required to be answered in negative in principle. However, answer given on this is only academic for the reason that this Court while answering 1st substantial question of law in affirmative held that order dated 11.5.2010 passed in the aforesaid claim petition is required to be set aside. Therefore, considering this, substantial question of law regarding date from which interest becomes payable is not required. However, in view of the decision rendered by Apex Court in the matter of Pal Raj v. Divisional controller NEKRTC 2010 ACJ 2859 this Court answer 2nd substantial question of law in the negative.
In the result, the appeal filed by 2nd Respondent insurance company is allowed. The order dated 11.5.2010 passed in CR. No. 6/2010 is set aside. While doing so, this Court reiterate that it is high time, the concerned authorities particularly the Principal Secretary, Department of Labour. Principal Secretary, Department of Law and justice shall take up this matter seriously and. see that appropriate steps are taken for implementation of the amended provisions of the Employees Compensation Act, where provision is made for appointment of Civil Judges or qualified Advocates having practice of more than five years to preside over the courts dealing with these matters. Earlier also copies of several judgments are marked to the aforesaid officers and also the Chief Secretary to the Government. Inspite of that they have not understood the seriousness of situation. The Government and its machinery for the reasons best known to them is dragging their feet on this aspect without taking any decision. This judgment is also marked to them to bring to their notice the way in which the said authority, viz., Commissioner for Workmen''s Compensation in general and in particular its office at Chitradurga is functioning.
In view of the appeal being allowed, the amount, in deposit is ordered to be refunded to the Appellant/insurance company.