{"id":172673,"date":"2008-02-27T00:00:00","date_gmt":"2008-02-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-manager-vs-p-parvathy-on-27-february-2008"},"modified":"2019-01-17T00:43:20","modified_gmt":"2019-01-16T19:13:20","slug":"the-manager-vs-p-parvathy-on-27-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-manager-vs-p-parvathy-on-27-february-2008","title":{"rendered":"The Manager vs P.Parvathy on 27 February, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
The Manager vs P.Parvathy on 27 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 27\/02\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nC.M.A.(MD)No.586 of 2006\nand\nC.M.P(MD)No.3378 of 2006\nand\nM.P.(MD)No.1 of 2007\n\nThe Manager,\nThe Oriental Insurance Co.Ltd.,\nKumbakonam   \t\t\t\t\t.. Appellant\n\nVs\n\n1.P.Parvathy\n2.S.Thangarasu\n3.T.Pathmavathy\n4.S.Amanullah \t\t\t\t    \t.. Respondents\n\n\n\nPrayer\n\n\nAppeal filed under Section 173 of Motor Vehicles Act, 1988, against the\naward passed in W.C. No.198 of 2000, dated 27.02.2006 on the file of the\nCommissioner for Workmen's Compensation (Deputy Commissioner of Labour), Trichy.\n\n!For Appellant\t\t\t... Mr.K.Bhaskaran\n^For RR1 to 3\t\t\t... Mr.A.Saravanan\nFor R4\t\t\t\t... Mr.D.Rajendiran\n\t\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal is focussed as against the award passed in W.C.No.198 of 2000,
\ndated 27.02.2006 on the file of the Commissioner for Workmen’s Compensation
\n(Deputy Commissioner of Labour), Trichy.\n<\/p>\n
\t2. Heard Both sides.\n<\/p>\n
\t3. The Court of Workmen’s Compensation (Deputy Commissioner of Labour),
\nTrichy vide order dated 27.02.2006 awarded compensation to a tune of
\nRs.1,79,553\/- (Rupees one lakh seventy nine thousand five hundred and fifty
\nthree only) to the claimants.\n<\/p>\n
\t4. This appeal filed by the appellant\/Insurance Company is focussed
\nagainst the fixing of liability as against the Insurance Company for paying the
\ncompensation amount awarded by the Deputy Commissioner of Labour, Trichy, on the
\nground that the First Information Report would clearly reveal that the deceased
\nat the relevant time of his death was only a cleaner and the insurance coverage
\nwas not for the cleaner; even then ignoring this aspect, the Deputy Commissioner
\nof Labour, Trichy awarded compensation and directed the appellant\/Insurance
\nCompany to pay the award amount as per the insurance policy.\n<\/p>\n
\t5. The point for consideration is as to whether the appellant\/Insurance
\nCompany was liable to pay the award amount or not?\n<\/p>\n
6.On point:\n<\/p>\n
\tHeard both sides.\n<\/p>\n
\t7. The learned counsel for the appellant\/ Insurance Company would draw the
\nattention of this Court to Ex.P1, the First Information Report and develop his
\narguments to the effect that the driver of the offending lorry clearly and
\ncategorically highlighted that the deceased Palanisamy was a cleaner when the
\nbus was taken from Kumbakonam to Ooty, where the accident took place; in such a
\ncase, the Deputy Commissioner of Labour, Trichy should not have directed the
\nInsurance Company to honour the award because for the cleaner no premium was
\npaid admittedly, whereas the learned counsel for the fourth respondent\/owner of
\nthe offending vehicle would submit that the appellant\/Insurance Company has to
\nmeet the responsibility because the owner of the offending vehicle paid premium
\nfor the conductor; furthermore there is nothing to show that the deceased had no
\nconductor licence and Insurance Company has not taken steps to summon the
\nauthorities concerned to prove the absence of conductor licence relating to the
\nsaid deceased Palanisamy was concerned.\n<\/p>\n
\t8. The learned counsel for the respondent Nos.1 to 3\/claimants would argue
\nthat the deceased was working as a conductor in Kumbakonam area in the offending
\nbus under the owner of the fourth respondent\/owner of the bus and when the bus
\nwas taken out of Kumbakonam area as tourist bus, he was in the habit of working
\nas a cleaner.\n<\/p>\n
\t9. The perusal of the award passed by the Deputy Commissioner of Labour,
\nTrichy would reveal that he accepted the theory that the deceased was working as
\nconductor as well as cleaner.  It is obvious and axiomatic that Workmen’s
\nCompensation Act is a benevolent legislation and in fact the quantum of
\ncompensation awarded under the Workmen’s Compensation Act is comparatively
\nlimited then what normally the compensation is awarded by the Tribunal under the
\nMotor Vehicles Act as different theories do govern those two authorities in
\nawarding compensation.\n<\/p>\n
\t10. Under Section 30 of the Workmen’s Compensation Act the substantial
\nquestions of law were framed as under:\n<\/p>\n
\t“1.Whether the commissioner for workmen’s compensation fell into error in
\nsetting aside the earlier order dated 19.08.2002 in violation of Rule 32(2) of
\nthe workmen compensation Rules?\n<\/p>\n
 \t2.Whether order of the commissioner for workmen’s compensation, without
\nconsidering the pleas raised by the parties before him is perverse?”\n<\/p>\n
\t11. During arguments, it revealed that earlier order dated 19.08.2002 of
\nthe Deputy Commissioner of Labour, Trichy was an exparte one as against the
\nowner of the vehicle and hence the authority set aside that order over which
\nthere could be no grievance on the part of the Insurance Company.  Rule 41 of
\nthe Workmen Compensation Act, 1924  would empower the authority concerned to set
\naside the ex-parte order and rehear the matter.  Accordingly, point No.1 is
\ndecided as against the Insurance Company.\n<\/p>\n
12.Point No.(ii):\n<\/p>\n
\tThe perusal of Section 30 of the Workmen’s Compensation Act would clearly
\ncontemplate that regarding the finding of fact is concerned normally the High
\nCourt should not interfere with such findings unless it is perverse.  Here based
\non the evidence available, the Deputy Commissioner of Labour, Trichy arrived at
\nthe conclusion that under the owner of the offending vehicle, the deceased was
\nworking as conductor as well as cleaner.\n<\/p>\n
\t13. It is quite obvious that under the policy concerned premium was paid
\nfor the conductor also.  In such a case no hyper-technical view should be taken
\nthat at the time of the accident he was working as a cleaner even though he
\nmight be a conductor in Kumbakonam under the same owner.  In this view of the
\nmatter, I am of the considered opinion that the finding of the Deputy
\nCommissioner of Labour, Trichy that the deceased under the owner of the
\noffending vehicle was working as conductor as well as cleaner need not be
\ninterfered with.\n<\/p>\n
\t14. Then the crucial question arises as to what about the conductor’s
\nlicence.  It is quite obvious that neither in the petition nor in the deposition
\nof PW1 anything had been stated about the conductor licence.  In fact, it is the
\ncase of the claimants that at the relevant time of the accident, he was a
\ncleaner.  There is also nothing to show that he was a qualified conductor.  The
\ncounter of the owner of the offending vehicle would be on the line, as though
\nthe deceased was a stranger to the employer viz., the owner of the offending
\nvehicle and in such a case it cannot be countenanced that the Insurance Company
\nshould have taken steps to summon the Regional Transport Officer concerned to
\nprove the negative aspect that there was no conductor licence for the deceased.
\nAt this juncture, I would like to recollect the decision of this Court in United
\nIndia Insurance Co. Ltd. v. R.Venkatesan and<\/a> another reported in 2004 ACJ 727.
\nIf at all there was some semblance of evidence that at one point of time
\nconductor licence was issued in favour of the deceased, then the burden of proof
\nwould be on the Insurance Company to summon the authority concerned and
\nhighlight that there was violation of the policy conditions or that there was no
\nvalid conductor’s licence at the time of the accident.   But in this case, it is
\nnot the case of any one that the deceased was having any conductor licence, but
\nthere is evidence to the effect that the owner of the vehicle employed him as a
\nconductor in Kumbakonam area and cleaner in some other area.  Hence, considering
\nall these facts, I am of the considered opinion that there was violation of the
\ninsurance policy condition and it is writ large; in such a case the claimants,
\nwho are the poor widow and children should not be driven from pillar to post to
\nrecover only from the owner of the offending vehicle.  Hence, pay and recovery
\ntheory could be ushered in as per the decision of the Hon’ble Apex Court in
\nOriental Insurance Co. Ltd., v. Shri Nanjappan and Ors.<\/a> reported in 2004(1) AJR
\n320 (SC)  The Hon’ble Apex Court in the aforesaid decision set out the
\nproposition thus:\n<\/p>\n
\t“Therefore, while setting aside the judgment of the High Court we direct
\nin terms of what has been stated in Baljit Kaur’s case (supra) that the insurer
\nshall pay the quantum of compensation fixed by the Tribunal, about which there
\nwas no dispute raised, to the respondent-claimants within three months from
\ntoday.  For the purpose of recovering the same from the insured, the insurer
\nshall not be required to file a suit.  It may initiate a proceeding before the
\nconcerned Executing Court as if the dispute between the insurer and the owner
\nwas the subject matter of determination before the Tribunal and the issue is
\ndecided against the owner and in favour of the insurer.  Before release of the
\namount to the insured, owner of the vehicle shall be issued a notice and he
\nshall be required to furnish security for the entire amount which the insurer
\nwill pay to the claimants.  The offending vehicle shall be attached, as a part
\nof the security.  If necessary arises the Executing Court shall take assistance
\nof the concerned Regional Transport authority.  The Executing Court shall pass
\nappropriate orders in accordance with law as to the manner in which the insured,
\nowner of the vehicle shall make payment to the insurer.  In case there is any
\ndefault it shall be open to the Executing Court to direct realization by
\ndisposal of the securities to be furnished or from any other property or
\nproperties of the owner of the vehicle, the insured.  The appeal is disposed of
\nin the aforesaid terms, with no order as to costs.”\n<\/p>\n
However one other Judgment of the Hon’ble Apex Court in Premkumari and Ors. v.
\nPrahlad Dev and Ors.<\/a> in Civil Appeal No.490 of 2008 decided on 18.01.2008.  An
\nexcerpt from it would run thus:\n<\/p>\n
\t“In the case of National Insurance Co. Ltd. vs. Kusum Rai and Others,<\/a>
\n(2006) 4 SCC 250, the vehicle was being used as a taxi.  It was, therefore, a
\ncommercial vehicle.  The driver of the said vehicle was required to hold an
\nappropriate licence therefore.  Ram Lal, who allegedly was driving the said
\nvehicle at the relevant time, was holder of a licence to drive light motor
\nvehicle only.  He did not possess any licence to drive a commercial vehicle.
\nTherefore, there was a breach of condition of the contract of insurance.  In
\nsuch circumstances, the Court observed that the appellant-National Insurance Co.
\nLtd., therefore, could raise the said defence while considering the stand of the
\nInsurance Company.  This Court, pointing out the law laid down in Swaran Singh
\n(supra) concluded that the owner of the vehicle cannot contend that he has no
\nliability to verify the fact as to whether the driver of the vehicle possessed a
\nvalid licence or not.  However, taking note of the fact that the owner has not
\nappeared, the victim was aged only 12 years, the claimants are from a poor
\nbackground and to avoid another round of litigation applying the decision in
\nOriental Insurance Co. Ltd. vs. Nanjappan,<\/a> (2004) 13 SCC 224 and finding that
\nthough the appellant-Insurance Company was not liable to pay the claimed amount
\nas the driver was not possessing a valid licence and the High Court committed an
\nerror in holding otherwise, in the peculiar facts and circumstances of the case
\nand in exercise of jurisdiction under Article 136 of the Constitution declined
\nto interfere with the impugned judgment therein and permitted the appellant-
\nInsurance Company to recover the amount from the owner of the vehicle”.\n<\/p>\n
\t15. The Hon’ble Apex Court in the cited decisions considering the plight
\nof the claimants ushered in the pay and recovery theory subject to the decision
\nof the Hon’ble Apex Court in Oriental Insurance Co. Ltd., v. Shri Nanjappan and
\nOrs.<\/a> reported in 2004(1) AJR 320 (SC) and I would like to follow the same
\nprocedure and accordingly the order of the Deputy Commissioner of Labour, Trichy
\nshall stand modified to the effect that the appellant\/Insurance Company is
\ndirected to pay the award amount and recover it from the owner of the vehicle
\nwithout initiating any separate fresh proceedings, but by executing this
\nJudgment directly.\n<\/p>\n
\t16. The learned counsel for the fourth respondent\/owner of the vehicle
\ncited the decision of the Hon’ble Apex Court in New India Assurance Co. Ltd. v.
\nKendra Devi and others<\/a> reported in 2008(1)CTC 430.  The cited case is not
\nrelevant to the case on hand for the reason that in the said case, the owner of
\nthe vehicle himself acted as driver and in such a situation the Hon’ble Apex
\nCourt held that even though he might be the owner, he died as a driver for which
\nthe Insurance Company is liable.  But here the facts and circumstances are
\nentirely different and as such I am of the view that the said decision is not
\napplicable to the facts and circumstances of this case.\n<\/p>\n
\t17. In view of the deposit already made before the Deputy Commissioner of
\nLabour, Trichy, the claimants are entitled to withdraw it and before permitting
\nsuch withdrawal, the Deputy Commissioner of Labour, Trichy shall adhere to the
\ndecision of the Hon’ble Apex Court in Oriental Insurance Co. Ltd., v. Shri
\nNanjappan and Ors.<\/a> reported in 2004(1) AJR 320 (SC) cited supra. The Insurance
\nCompany is entitled to get reimbursed of it from the owner of the vehicle
\nwithout initiating any separate fresh proceedings, but by executing this
\nJudgment directly.\n<\/p>\n
\t18. With the above observation, this Civil Miscellaneous appeal is
\ndisposed of.  No costs.  Consequently, connected Miscellaneous Petitions are
\nclosed.\n<\/p>\n
smn<\/p>\n
To<\/p>\n
The Commissioner for Workmen’s Compensation
\n(Deputy Commissioner of Labour),
\nTrichy.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Manager vs P.Parvathy on 27 February, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-172673","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Manager vs P.Parvathy on 27 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-manager-vs-p-parvathy-on-27-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Manager vs P.Parvathy on 27 February, 2008 - 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