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Judgment
L. Narayana Swamy, J.—The wife of the deceased instituted case before the W.C. Commissioner, Haveri and the Commissioner by his order dated 16.2.2009 allowed the claim petition by awarding compensation of Rs. 3,63,965/- along with interest at 12% per annum.
I have heard the learned counsel for the appellant and learned counsel for respondents and perused the impugned judgment.
The claimants pleaded that the deceased was working as a coolie and he succumbed to the injuries sustained during the course of employment. There is relationship of employer and employee and the vehicle was insured with the insurance company.
The learned counsel for the appellant insurance company contends that the driver of the vehicle was not having a valid driving licence. Ex. R. 2 endorsement issued by the RTO was only for driving non-transport vehicle and as on the date of accident he was driving transport vehicle. The policy does not cover the risk of coolie or cleaner since it is the claim that the deceased was working as a coolie. Hence the liability could not have been fastened on the insurance company. The deceased was a passenger along with other five persons. It is a false claim made by the claimants, instead of dismissing the same, the W.C. Commissioner has allowed, liable to be set aside.
The learned counsel for the claimants submits that risk of driver and a person is covered. At the relevant column, it is referred 1+1 and hence risk of coolie is covered. The owner was made a party, who filed statement of objections but was not available for examination.
The W.C. Commissioner framed issues relating to claimants proving their dependency and relationship and all the issues were answered in favour of the claimants.
The substantial question of law is, whether the claimants establish the fact that the deceased succumbed to the injuries sustained during the course of employment and whether the W.C. Commissioner has committed an error in fastening the liability on the insurance company.
The claimants were examined and it is their case, he was an employee of the owner. The owner was made a party, represented by a counsel, but he did not appear before the court. The owner had chosen only to file statement of objections but remained absent not being made available himself for examination. Neither the claimants nor the insurance company did not take any steps to secure the presence of the owner, which they are entitled under Code of Civil Procedure and Evidence Act. Though the proceedings before the W.C. Commissioner is a summary proceedings, the W.C. Commissioner ought to have been made to exercise the said power by filing necessary application. It is especially the duty of the insurance company to summon such a person for the purpose of examination. The Act is a benevolent legislation made to aid the victims or the injured. When an application is made as per the provisions of the W.C. Act, it is presumed that they have rightly approached the W.C. Commissioner for compensation. Whenever dispute is made as to the relationship, then it shall be the duty on the part of the insurance company to summon by applying one of the methods to secure his presence. In case the owner is not available for chief or cross-examination, it does not mean that all the claim petitions are to be dismissed. The Commissioner or the Tribunal are duty bound to decide the issue with the available materials such as salary certificate, appointment order, P.F. deductions, if any, or any other documents which can throw some light on the said issue.
The claimants have produced copy of the driving licence to claim that he was the driver of the vehicle. Per contra, it is the case of the insurance company that he was in possession of only non-transport vehicle licence but he was driving a transport vehicle. Ex. R. 2 has been obtained from the RTO in which it has been stated that licence was issued for non-transport vehicle. That itself is not sufficient, unless the driver is examined or the owner of the vehicle. In the instant case, the owner was not available for examination and either of the parties did not make any effort to secure his presence. The licence could not be confronted to him. Therefore, it has to be held that the insurance company did not discharge its duty in proving that the driving licence was not a valid driving licence.
It is submitted that the policy was issued only to the driver and policy does not cover the risk of Hamal or coolie. I have seen Ex. R. 2 from the original file and found that at relevant column the seating capacity is 1+1. The risk of the driver is covered and the another person must be necessarily a coolie. The learned counsel for the appellant submits that no premium is paid to cover the risk of coolie, but the said contention cannot be accepted since such a ground is not taken before the W.C. Commissioner.
It is further contended that the deceased was an unauthorized passenger in the vehicle for which he has referred FIR and charge sheet. The appellant has examined its officer. But the said officer is not an eye witness and he had no first hand information about the incident. If the other persons are unauthorized passengers it is for the authority to take steps since the driver and owner have been prosecuted. Therefore, there is no material made available to conclude that the deceased was a passenger one way or the other. Either the FIR or charge sheet does not prove that the deceased was a passenger. What is referred is that five persons were traveling in which the deceased succumbed to the injuries, which cannot be construed that the deceased was a gratuitous passenger. Even if the owner has committed an offence by carrying unauthorized passenger, it is for the appropriate authority including the RTO to initiate action against the owner. But that itself does not disentitle the claimants from claiming compensation.
In the circumstances, the appeal of the appellant is liable to be dismissed and it is accordingly dismissed. Amount in deposit is directed to be transmitted to the W.C. Commissioner. The interest shall be payable from one month after the date of accident as per the provisions of law. The claimants are entitled to withdraw the amount of compensation.