iv A
EN THE HEGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03*" DAY or DECEMBER 2o09;*t_
BEFORE
THE HON'BLE E\/lR.JUSTlCEZ SUBHASH 33930? ff}
MISCELLANEOUS FIRST APPEAL..N0.«itt§Ri'_5/'2{'I'02" it
BETWEEN:
M/s Nationai insurance
Company Ltd,
Regional Office,
Shubharam Complex,
144, MG. Road, ;
Bangatore - 560 001 _ '
Represented byits _, '
Administrative Of_t'ii';er.Q' _ _ V " ';;"A'PPELLANT
(By Sri.A.I\/1. venrgatésig,Ariyiflr 'A A;
AND:
1. Smt. Ru"clr_arTIma',_ A
W/A0 tate N'ag_appa* @"'Na2jara§,
Aged about 25 ryeva_rs,_
2 A fate Nagappa @ Nagaraj,
' ' Agedjbo_t£'i 63/ears,
A l\£l.ayamr~n_a:l}..' Di./0 Eate Nagappa @ Nagara},
Aged "aE;)oLIt 4 years:
A Nagara}, S/'0 late Nagappa @ Nagarag',
' -,,¢"A.ged about 2 years 3 months
..'Sl.2 to 4 are minors,
Represented by their mother
And naturaé guardian
Sl.No.1 above.
Ail are residing at
Mallapura Village,
Alur Post,
Davangere Taiuk.
5. A/iahadevappa,
S/o T. Thimmappa,
Major,
T. Nulenur Village, V '
HD. Pura Hobli, " _ A ~
Holalkere Taluk. _ W.g.."RESPQIND'ENTif~3
(By sir. B.i<_ ivianiunath, Adv' for C/'F{';».1:aV:"'to 4
R5 Served) _
This Miscellaneous First Appeal is f'il.edlun.d~er Section 30(1)
of the Workmen's jCompen'salti~on_'A.c's, against the order cit:
30.3.2002 passed ' 'in.'WCA/C3143/O0; the file of the
Commissioner for"Wolr_kme'n7.s._c_Cem;0'ensation, Davanagere, partly
allowing the claim petltion"'fer4_c'oir"npensat'ion.
for -hearing this day, the Court
deliveredthefoll'owinQ:.'j'-~._gg i '
" ,_.'4.V_:'_,'.___'§_).._r."3'i\li E N T
appeal insurer against the award dated 30"'
by the Commissioner for Workmen's
CotnpensationagfjDjavaarigere (hereinafter referred to as 'the
C0mmissio.n"e.r');"
l9?;espondents--1 to 4 are the legal representatives of the
"ta'dec_ea.sed driver, who died in an accident that occurred on
it is alleged that, the deceased driver was engaged by
respondent No.5 and during the course of his employment, while
he was driving the vehicte in question, met with an accident and
succumbed to the said injuries. it is further alleged that,_4atV_t-h:l;.;.t_ime
of the incident, the deceased was drawing a salary.
per month and Rs.50/- batta per day. Befnorge .
behatf oi the ctaimahts, one witness
P5 were marked and on behali”ot”*the
examined and Exs.Rt to R3__were it I’ V
3. The principal coitt.e’ntgio–n. ._urged before the
Commission was that,’ vn’o’.v”l’i.cence, as such,
engaging the ._d.e–cea’s:e_«d ~to__dri.ve.__«–the vehicle without licence
amounts tci’vioVlatirdn__Vo_t ptoir’ision.sVo’tl the Motor Vehicles Act and
in view of the ‘same,’prli’ma’i’~3r:::”iiability being on the employet and
employe_r~haAving” violated theprovisions of the Motor Vehicles Act,
:’V:.v.§he’lilléurerfis no? liabieflto pay the compensation. However, the
said negatived by the Commissioner and the
9′ “liabilitAy*-..__was~’fi.§{.edi or’: the insurer intera/Ia by determining the
“‘Tlfcompehsativon at F%s.2,t6,9tO/– with interest. It is against this
this appeal has been filed.
” 4. Sri_A_l\/l.Venkatesh, leamed Counsel for the appellant
xhsubmitted that, before the Commissioner, on behatf of the insurer,
:9?
objection statement was filed interalia disputing the deceased
having licence. in this regard, a notice was aiso issued. to the
owner of the vehicle and further, the Police has registe_re,d:–a:c_ase
for violation of Section 3 of the l\/iotor Vehicies
when there is no licence, the Commissloyner was’
fixing the liability on the insurer. in this
charge sheet and also ail9Qe’d..:’i~h.at theas’cl.aiVm.ants’A–h.a~rie
produced the iicence nor the ownesrss’:oi._titeg’ ve.hicie,._ha,d produced
any licence. Despite this, thest)ommissio’ner.:sghasVerroneously fixed
the liability on the4ih’s.ureri””‘Heiisiltaigigtssoass’:’ei{.ise’dss.on the judgment
reported in ‘N .rie,g i.migrrei of NATIONAL
INSURANCE- ii,~si«/5’ nA/ AND OTHERS and
submitteda*t.ha’t,” similar circumstances has held
that, in case thie._Vve.hicie_ by a person having no licence, the
.~”i.nsurer’i’s luiables”‘to.p_ayv compensation. He submitted that, the
“a.wa.rd”is greguirie-d:”te_be set aside.
S,.r_*i.'”:.’isK.i\/ianiunath, learned Counsel appearing for the
iii
-4….ifi,’€iaimants’submitted that; though before the Commissioner, a
s_’c_ont_ention was raised as regard to the deceased not having licence
a ..s_,to-tdrive the vehicle in question, however, when a notice was issued
as s by the insurer to the owner of the vehicie, the owner has replied to
47
the said notice and has stated that the deceased was having
licence and on verification of the licence; he had allowed him to
drive the vehicte. He also stated that, even on the date of accétdent,
the deceased had ticence. But, during the course oi;th~e.fac_cide’ri~L
the said licence has been lost and submitted th_a.t,.E.t:’:irs a
that the deceased was driving the vehicle witghouutg
judgment of the Apex Court is not.»ap.plicatjl.e’to it
6. The only question._thatg..l’s” raisedt._.before”-this: Court is,
whether the insurer is liabte topayVjlrlcompeinsaltion on the ground
that the deceased_.i\ivas’not hav’inq.«:Eicen’ceV-to”drive the vehicle.
7. lnsofarilas-“this.’aspect.is”concerned, from the records it is
seen that the ‘insurer a Eegal notice to the employer as
per E><.P2. "Eu"t:eViho.xiirn'e.:faappeiared before the Court and had filed
_.-'reply tothe: no'ti'c*e«,.,w_hich reads as under:
–vffFfE’PL”Y..TO NOTICE FILED ON BEHALF OF
” ‘ ” RSPONDENT i\lO.1
respondent No.1 begs to submit reply to
notice as hereunder»
_ Late Nagappa @ Nagaraj was an employee with
_ this respondent. As on the date of accident, he was
having valid driving licence to drive the tractor-trailor.
On the date of accident he was kept the o’riving
licence with him. After his death, the driving licence
was whereabout not known to this respondent.
,(}e
The owner in the said reply has categoricalty stated that, he had
engaged the deceased after verifying the licence and on tghegdate
of accident, the deceased had kept the licence with
the death, it is not known as to what happened
From the statement of the owner it thlat
taken care to engage a person having licence to driver. the v”eh’icle’g
and this tact is not disputed by the'”wi:Vtnes_s e$<'anl'l'rieVd hehalt oi
the insurer. in KUSUM wherein a person
drives the vehicle without liceVnc'eA._ahd:ithatttlt.etcAtb.I'Vrte'ving been proved
and admitted, the 2lE\t3"€f;'<:i'-.'\.'V3O.t,:?'."{' insurer is not liable
to pay driven in violation ot the
provisions but this is not the
case wherethye"vehic.l_e'KAt.iéA~.rlri"t<en« by a person without licence. No
steps are tal+
contract, it is for the insurer to prove the same. in this case, except
the bare denial, nothing has been done by the insurer. in these
circumstances, i find that there is no error commit_t.ed’-.._oy.._ the
I Commissioner and as such, no ground for in’ierference”.”” ” ‘
Accordingly, the appeai faiEsJJa’nd’«sa~rne;’ is”r.di.s’rrii’sse.d.C7
However, the rate of interest is modifiecix. Ciaimantistare enVti=tie’d’forL
interest @ 7’/2% from the date of”peti’t.ion
and 12% from the date or payment,
whichever is earlier. The deeds;i’,j’Vf;iCe.ti.transferred to the
Commissioner V Compensation,
Davangere. C ._ 4′ ‘ .. ii
____ ‘
§sf.:7~?§.::