JUDGMENT
P.K. Misra, J.
1. The Insurer has filed this appeal.
Claimant-respondent No. 1 filed W. C. Case No. 438-D/96 before the Commissioner for
Workmen’s Compensation-cum-Deputy
Labour Commissioner, Cuttack (hereinafter
referred to as the “Commissioner”), for
compensation on account of the death of her
husband. The deceased was the driver in Truck
number OR-04-2111 belonging to respondent No. 2. It was stated that the death occurred in
an accident arising out of ‘and in course of
employment. It was further claimed that the
deceased was aged about 32 years at the time
of accident and he was getting Rs. 3,000/-
towards his monthly salary.
2. The owner-respondent No. 1 filed written statement admitting about the employment and the death on account of the accident. He, however, took the plea that compensation, if any, should be paid by the Insurance Company as the truck had been validly insured. The Insurance Company denied in general terms the allegations made in the claim application.
3. The Commissioner on assessment of the evidence on record found that the deceased was an employee under the present respondent No. 2 and had died in an accident arising out of and in course of employment. Though it was found that the deceased was receiving a sum of Rs. 3,000/- per month keeping in view the limit indicated in the Schedule under the Workmen’s Compensation Act (hereinafter referred to as the “Act”) and calculating compensation on the basis of the age fixed at 33 years on the basis of the post-mortem report, the Commissioner directed for payment of Rs. 2,01,660/-. The Commissioner also relied upon the certified copy of the driving licence and held that the amount was payable by the Insurance Company. The aforesaid award is under challenge at the instance of the Insurer.
4. The learned counsel for the appellant has sought to dislodge the findings of the Commissioner relating to employment relating to death in an accident arising out of and in course of employment. However, keeping in view the limited scope of interference in an appeal under Section 30 of the Act, it is not possible to come to any different conclusion. The findings of the Commissioner on these aspects are based on discussion of relevant evidence on record and by no stretch of imagination such findings can be characterized as perverse. Moreover, keeping in view the provisions contained in Sections 149 and 170 of the Motor Vehicles Act, 1988, it is doubtful if the Insurer can challenge such findings relating to merits of the case.
5. The main question raised by the counsel for the appellant relates to question of liability by the Insurance Company to pay the amount. It is contended that though the certified copy of the driving licence, which had been produced at the fag end of the trial, indicated that the driving licence purportedly issued in the name of the deceased had been renewed on several occasions, on verification it has been found out that the original driving licence referred to in the renewed driving licence was nonexistent/fake one. It is, therefore, submitted that though the renewed driving licence authorised the deceased to drive a transport vehicle, since the original driving licence was fake, it must be taken that the deceased did not have valid driving licence. It is accordingly submitted that the Insurance Company should be exonerated from paying the amount. Such submission made by the counsel for the appellant has been resisted by the counsel for the claimant as well as counsel for the owner on several grounds. It is contended that the Insurance Company had not taken any specific plea in its written statement before the Commissioner seeking exoneration from liability on the ground of want of driving licence. On going through the written statement filed by the Insurance Company, it is found that such criticism appears to be correct. The question as to whether the original driving licence was fake or not is a factual question and in the absence of any specified plea such a question cannot be permitted to be agitated in appeal.
6. It is submitted by the counsel for the appellant that the certified copy of the driving licence was produced by the owner at the fag end of the trial and the Insurance Company had no occasion to verify the genuineness of the original driving licence mentioned in the certified copy of the renewed driving licence. It, however, appears that in the written statement filed by the owner, the details of the renewed driving licence had been given and as such it cannot be said that earlier to the filing of the certified copy of the driving licence, the Insurance Company did not have reasonable opportunity to find out about the driving licence.
7. Even assuming that the original driving licence was fake, in view of the admitted fact that subsequently renewed driving licence had been issued in favour of the deceased, the Insurance Company cannot be exonerated. The Insurance Company can be exonerated if it is established that there has been breach of the condition of the policy. As a renewed driving licence had been issued in favour of the document, it cannot be said that the owner of the vehicle had knowingly permitted the driver to drive the vehicle with the knowledge that the original driving licence was fake. It is evident that the owner must have depended upon the renewed driving licence which had been issued by different authorities from time to time. Unless it is proved that the owner had also the knowledge regarding the invalidity of the original driving licence, it cannot be said that he had knowingly permitted the driver to drive the vehicle without a valid driving licence, as the owner depended upon the renewed driving licence which had admittedly been issued. The aforesaid position has been discussed in a recent judgment delivered in Divisional Manager, Oriental Insurance Co. Ltd. v. Hadiya Gouda, Misc. Appeal No. 371/1996 decided on July 29, 1999 reported in 1999 (2) Orissa LR 209. 8. The learned counsel for the appellant has relied upon the decision of the Supreme Court reported in United India Insurance Co. Ltd. v. Gian Chand AIR 1997 SC 3924 . In the aforesaid case, the vehicle in question had been handed over by the owner to the driver who admittedly did not have any driving licence. In such circumstances, it was held that the Insurer was not liable. In the present case, it cannot be said that the driver did not have any driving licence. He was in possession of a renewed driving licence. The question as to whether the original driving licence was a fake one or not was definitely not within the knowledge of the owner. The ratio of the aforesaid decision of the Supreme Court is not applicable to the facts of the present case. The other decision of the Supreme Court, reported in Kashiram Yadav v. Oriental Fire and General Insurance Company, AIR 1989 SC 2002, relied upon by the counsel for the appellant is also inapplicable, inasmuch as in the said case, the insured himself had proved that the driver did not have a driving licence and as such it was held that the Insurer was not liable.
9. In view of such commission, the alternative submission made by the counsel for claimant-respondent No. 1 that the amount may be directed to be paid by the Insurance Company and the owner may be directed to reimburse the same to the Insurance Company in view of the provisions contained in Section 149(4) of the Motor Vehicles Act does not arise for consideration.
10. For the aforesaid reasons, I do not find any merit in the present appeal, which is accordingly dismissed. No costs.