BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.586 of 2006 and C.M.P(MD)No.3378 of 2006 and M.P.(MD)No.1 of 2007 The Manager, The Oriental Insurance Co.Ltd., Kumbakonam .. Appellant Vs 1.P.Parvathy 2.S.Thangarasu 3.T.Pathmavathy 4.S.Amanullah .. Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the award passed in W.C. No.198 of 2000, dated 27.02.2006 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Trichy. !For Appellant ... Mr.K.Bhaskaran ^For RR1 to 3 ... Mr.A.Saravanan For R4 ... Mr.D.Rajendiran :JUDGMENT
This appeal is focussed as against the award passed in W.C.No.198 of 2000,
dated 27.02.2006 on the file of the Commissioner for Workmen’s Compensation
(Deputy Commissioner of Labour), Trichy.
2. Heard Both sides.
3. The Court of Workmen’s Compensation (Deputy Commissioner of Labour),
Trichy vide order dated 27.02.2006 awarded compensation to a tune of
Rs.1,79,553/- (Rupees one lakh seventy nine thousand five hundred and fifty
three only) to the claimants.
4. This appeal filed by the appellant/Insurance Company is focussed
against the fixing of liability as against the Insurance Company for paying the
compensation amount awarded by the Deputy Commissioner of Labour, Trichy, on the
ground that the First Information Report would clearly reveal that the deceased
at the relevant time of his death was only a cleaner and the insurance coverage
was not for the cleaner; even then ignoring this aspect, the Deputy Commissioner
of Labour, Trichy awarded compensation and directed the appellant/Insurance
Company to pay the award amount as per the insurance policy.
5. The point for consideration is as to whether the appellant/Insurance
Company was liable to pay the award amount or not?
6.On point:
Heard both sides.
7. The learned counsel for the appellant/ Insurance Company would draw the
attention of this Court to Ex.P1, the First Information Report and develop his
arguments to the effect that the driver of the offending lorry clearly and
categorically highlighted that the deceased Palanisamy was a cleaner when the
bus was taken from Kumbakonam to Ooty, where the accident took place; in such a
case, the Deputy Commissioner of Labour, Trichy should not have directed the
Insurance Company to honour the award because for the cleaner no premium was
paid admittedly, whereas the learned counsel for the fourth respondent/owner of
the offending vehicle would submit that the appellant/Insurance Company has to
meet the responsibility because the owner of the offending vehicle paid premium
for the conductor; furthermore there is nothing to show that the deceased had no
conductor licence and Insurance Company has not taken steps to summon the
authorities concerned to prove the absence of conductor licence relating to the
said deceased Palanisamy was concerned.
8. The learned counsel for the respondent Nos.1 to 3/claimants would argue
that the deceased was working as a conductor in Kumbakonam area in the offending
bus under the owner of the fourth respondent/owner of the bus and when the bus
was taken out of Kumbakonam area as tourist bus, he was in the habit of working
as a cleaner.
9. The perusal of the award passed by the Deputy Commissioner of Labour,
Trichy would reveal that he accepted the theory that the deceased was working as
conductor as well as cleaner. It is obvious and axiomatic that Workmen’s
Compensation Act is a benevolent legislation and in fact the quantum of
compensation awarded under the Workmen’s Compensation Act is comparatively
limited then what normally the compensation is awarded by the Tribunal under the
Motor Vehicles Act as different theories do govern those two authorities in
awarding compensation.
10. Under Section 30 of the Workmen’s Compensation Act the substantial
questions of law were framed as under:
“1.Whether the commissioner for workmen’s compensation fell into error in
setting aside the earlier order dated 19.08.2002 in violation of Rule 32(2) of
the workmen compensation Rules?
2.Whether order of the commissioner for workmen’s compensation, without
considering the pleas raised by the parties before him is perverse?”
11. During arguments, it revealed that earlier order dated 19.08.2002 of
the Deputy Commissioner of Labour, Trichy was an exparte one as against the
owner of the vehicle and hence the authority set aside that order over which
there could be no grievance on the part of the Insurance Company. Rule 41 of
the Workmen Compensation Act, 1924 would empower the authority concerned to set
aside the ex-parte order and rehear the matter. Accordingly, point No.1 is
decided as against the Insurance Company.
12.Point No.(ii):
The perusal of Section 30 of the Workmen’s Compensation Act would clearly
contemplate that regarding the finding of fact is concerned normally the High
Court should not interfere with such findings unless it is perverse. Here based
on the evidence available, the Deputy Commissioner of Labour, Trichy arrived at
the conclusion that under the owner of the offending vehicle, the deceased was
working as conductor as well as cleaner.
13. It is quite obvious that under the policy concerned premium was paid
for the conductor also. In such a case no hyper-technical view should be taken
that at the time of the accident he was working as a cleaner even though he
might be a conductor in Kumbakonam under the same owner. In this view of the
matter, I am of the considered opinion that the finding of the Deputy
Commissioner of Labour, Trichy that the deceased under the owner of the
offending vehicle was working as conductor as well as cleaner need not be
interfered with.
14. Then the crucial question arises as to what about the conductor’s
licence. It is quite obvious that neither in the petition nor in the deposition
of PW1 anything had been stated about the conductor licence. In fact, it is the
case of the claimants that at the relevant time of the accident, he was a
cleaner. There is also nothing to show that he was a qualified conductor. The
counter of the owner of the offending vehicle would be on the line, as though
the deceased was a stranger to the employer viz., the owner of the offending
vehicle and in such a case it cannot be countenanced that the Insurance Company
should have taken steps to summon the Regional Transport Officer concerned to
prove the negative aspect that there was no conductor licence for the deceased.
At this juncture, I would like to recollect the decision of this Court in United
India Insurance Co. Ltd. v. R.Venkatesan and another reported in 2004 ACJ 727.
If at all there was some semblance of evidence that at one point of time
conductor licence was issued in favour of the deceased, then the burden of proof
would be on the Insurance Company to summon the authority concerned and
highlight that there was violation of the policy conditions or that there was no
valid conductor’s licence at the time of the accident. But in this case, it is
not the case of any one that the deceased was having any conductor licence, but
there is evidence to the effect that the owner of the vehicle employed him as a
conductor in Kumbakonam area and cleaner in some other area. Hence, considering
all these facts, I am of the considered opinion that there was violation of the
insurance policy condition and it is writ large; in such a case the claimants,
who are the poor widow and children should not be driven from pillar to post to
recover only from the owner of the offending vehicle. Hence, pay and recovery
theory could be ushered in as per the decision of the Hon’ble Apex Court in
Oriental Insurance Co. Ltd., v. Shri Nanjappan and Ors. reported in 2004(1) AJR
320 (SC) The Hon’ble Apex Court in the aforesaid decision set out the
proposition thus:
“Therefore, while setting aside the judgment of the High Court we direct
in terms of what has been stated in Baljit Kaur’s case (supra) that the insurer
shall pay the quantum of compensation fixed by the Tribunal, about which there
was no dispute raised, to the respondent-claimants within three months from
today. For the purpose of recovering the same from the insured, the insurer
shall not be required to file a suit. It may initiate a proceeding before the
concerned Executing Court as if the dispute between the insurer and the owner
was the subject matter of determination before the Tribunal and the issue is
decided against the owner and in favour of the insurer. Before release of the
amount to the insured, owner of the vehicle shall be issued a notice and he
shall be required to furnish security for the entire amount which the insurer
will pay to the claimants. The offending vehicle shall be attached, as a part
of the security. If necessary arises the Executing Court shall take assistance
of the concerned Regional Transport authority. The Executing Court shall pass
appropriate orders in accordance with law as to the manner in which the insured,
owner of the vehicle shall make payment to the insurer. In case there is any
default it shall be open to the Executing Court to direct realization by
disposal of the securities to be furnished or from any other property or
properties of the owner of the vehicle, the insured. The appeal is disposed of
in the aforesaid terms, with no order as to costs.”
However one other Judgment of the Hon’ble Apex Court in Premkumari and Ors. v.
Prahlad Dev and Ors. in Civil Appeal No.490 of 2008 decided on 18.01.2008. An
excerpt from it would run thus:
“In the case of National Insurance Co. Ltd. vs. Kusum Rai and Others,
(2006) 4 SCC 250, the vehicle was being used as a taxi. It was, therefore, a
commercial vehicle. The driver of the said vehicle was required to hold an
appropriate licence therefore. Ram Lal, who allegedly was driving the said
vehicle at the relevant time, was holder of a licence to drive light motor
vehicle only. He did not possess any licence to drive a commercial vehicle.
Therefore, there was a breach of condition of the contract of insurance. In
such circumstances, the Court observed that the appellant-National Insurance Co.
Ltd., therefore, could raise the said defence while considering the stand of the
Insurance Company. This Court, pointing out the law laid down in Swaran Singh
(supra) concluded that the owner of the vehicle cannot contend that he has no
liability to verify the fact as to whether the driver of the vehicle possessed a
valid licence or not. However, taking note of the fact that the owner has not
appeared, the victim was aged only 12 years, the claimants are from a poor
background and to avoid another round of litigation applying the decision in
Oriental Insurance Co. Ltd. vs. Nanjappan, (2004) 13 SCC 224 and finding that
though the appellant-Insurance Company was not liable to pay the claimed amount
as the driver was not possessing a valid licence and the High Court committed an
error in holding otherwise, in the peculiar facts and circumstances of the case
and in exercise of jurisdiction under Article 136 of the Constitution declined
to interfere with the impugned judgment therein and permitted the appellant-
Insurance Company to recover the amount from the owner of the vehicle”.
15. The Hon’ble Apex Court in the cited decisions considering the plight
of the claimants ushered in the pay and recovery theory subject to the decision
of the Hon’ble Apex Court in Oriental Insurance Co. Ltd., v. Shri Nanjappan and
Ors. reported in 2004(1) AJR 320 (SC) and I would like to follow the same
procedure and accordingly the order of the Deputy Commissioner of Labour, Trichy
shall stand modified to the effect that the appellant/Insurance Company is
directed to pay the award amount and recover it from the owner of the vehicle
without initiating any separate fresh proceedings, but by executing this
Judgment directly.
16. The learned counsel for the fourth respondent/owner of the vehicle
cited the decision of the Hon’ble Apex Court in New India Assurance Co. Ltd. v.
Kendra Devi and others reported in 2008(1)CTC 430. The cited case is not
relevant to the case on hand for the reason that in the said case, the owner of
the vehicle himself acted as driver and in such a situation the Hon’ble Apex
Court held that even though he might be the owner, he died as a driver for which
the Insurance Company is liable. But here the facts and circumstances are
entirely different and as such I am of the view that the said decision is not
applicable to the facts and circumstances of this case.
17. In view of the deposit already made before the Deputy Commissioner of
Labour, Trichy, the claimants are entitled to withdraw it and before permitting
such withdrawal, the Deputy Commissioner of Labour, Trichy shall adhere to the
decision of the Hon’ble Apex Court in Oriental Insurance Co. Ltd., v. Shri
Nanjappan and Ors. reported in 2004(1) AJR 320 (SC) cited supra. The Insurance
Company is entitled to get reimbursed of it from the owner of the vehicle
without initiating any separate fresh proceedings, but by executing this
Judgment directly.
18. With the above observation, this Civil Miscellaneous appeal is
disposed of. No costs. Consequently, connected Miscellaneous Petitions are
closed.
smn
To
The Commissioner for Workmen’s Compensation
(Deputy Commissioner of Labour),
Trichy.