{"id":178398,"date":"2009-07-31T00:00:00","date_gmt":"2009-07-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-national-insurance-co-ltd-vs-smt-manisha-chagan-karande-ors-on-31-july-2009"},"modified":"2016-04-19T05:09:19","modified_gmt":"2016-04-18T23:39:19","slug":"the-national-insurance-co-ltd-vs-smt-manisha-chagan-karande-ors-on-31-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-national-insurance-co-ltd-vs-smt-manisha-chagan-karande-ors-on-31-july-2009","title":{"rendered":"The National Insurance Co. Ltd vs Smt.Manisha Chagan Karande & Ors on 31 July, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
The National Insurance Co. Ltd vs Smt.Manisha Chagan Karande & Ors on 31 July, 2009<\/div>\n
Bench: Nishita Mhatre<\/div>\n
                                  1\n\n     Bsb\n\n\n\n\n                                                                     \n                                             \n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                      CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                            \n                    FIRST APPEAL NO. 752 OF 2003\n\n\n\n\n                                 \n     The National Insurance Co. Ltd.         ... Appellant\n\n                v\/s\n                      \n     Smt.Manisha Chagan Karande & ors. ... Respondents\n                     \n     Mr.S.R.Singh for the appellant.\n\n     Mr.S.S.Kulkarni for the respondent No.6.\n      \n\n\n     Mr.S.S.Shetye for respondent Nos.1 to 5.\n   \n\n\n\n\n\n                              CORAM: SMT.NISHITA MHATRE, J.\n<\/pre>\n
                              DATED: 31ST JULY, 2009<\/p>\n
     ORAL JUDGMENT:\n<\/p>\n
     1.     This first appeal has been filed against the<\/p>\n
     order of the Commissioner for Workmen’s Compensation<\/p>\n
     under which the claimants i.e. respondent Nos.1 to 5<\/p>\n
     have    been   awarded   compensation     of     Rs.2,11,790\/-\n<\/p>\n
     along with the simple interest at the rate of 9% per<\/p>\n
     annum from 16.5.2001 till actual payment. A                penalty<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n                                             2<\/span><\/p>\n
     of Rs.25,000\/- and costs of Rs.1000\/- have also been<\/p>\n
     awarded.\n<\/p>\n
     2.     The   deceased          was     the     husband            of    the      1st<\/p>\n
     respondent, the father of respondent Nos.2 and 3 and<\/p>\n
     the son of the 4th and 5th respondent.                       He was driving<\/p>\n
     a jeep on 15.5.2001 when he met with an accident.\n<\/p>\n
     As   a   result     of    this        accident       and      the       injuries<\/p>\n
     sustained<\/p>\n
     relatives
\n                   by<\/p>\n
                   i.e.\n<\/p>\n
                          him,       the\n\n                              respondent\n                                                deceased\n\n                                                  Nos.1\n                                                              expired.\n\n                                                             to     5       filed\n                                                                                    His\n\n                                                                                      an\n                       \n     application       under     the       Workmen's       Compensation             Act\n\n     claiming     compensation         from       both     the     appellant          as\n\n<\/pre>\n
     well as the respondent No.6, his employer.\n<\/p>\n
     3.     It was the contention of the claimant that the<\/p>\n
     deceased was an employee of the respondent No.6 and<\/p>\n
     he was driving employer’s vehicle when he met with<\/p>\n
     an accident.        It was pleaded that the accident had<\/p>\n
     arisen out of and in the course of employment and,<\/p>\n
     that     therefore,       the     claimants          were      entitled          to<\/p>\n
     compensation under the Workmen’s Compensation Act.\n<\/p>\n
     4.     The   application         was       contested         by     both,      the<\/p>\n
     Insurance      Company          as     well      as        the         employer.\n<\/p>\n
     Initially,     it        was    decided         ex-parte.              However,<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n                                     3<\/span><\/p>\n
     thereafter   both    the     Insurance    Company          and      the<\/p>\n
     employer had got ex-parte order set aside and the<\/p>\n
     claim was decided after the trial.\n<\/p>\n
     5.   The claimants examined respondent No.1 herein<\/p>\n
     i.e. the widow of the deceased.          She stated on oath<\/p>\n
     that her husband was an employee of the respondent<\/p>\n
     No.6 and that he was driving the jeep which was<\/p>\n
     accident.\n<\/p>\n
     owned by the respondent No.6 when he met with an<\/p>\n
                  In her cross-examination she denied the<\/p>\n
     suggestion that her husband was not employed with<\/p>\n
     respondent No.6.\n<\/p>\n
     6.   Respondent     No.6    examined   himself       and     deposed<\/p>\n
     that he had signed the claim form which was filled<\/p>\n
     in by the surveyor who had come to the garage where<\/p>\n
     the jeep was being repaired after the accident.                       He<\/p>\n
     has also deposed that the deceased was his employee<\/p>\n
     and was being paid a salary of Rs.2000\/- per month.\n<\/p>\n
     He has stated categorically that the contents of the<\/p>\n
     insurance claim form were not filled in by him but<\/p>\n
     by somebody else.          The suggestion of the advocate<\/p>\n
     for the workman that the contents of the claim form<\/p>\n
     were read over to him, has been denied by respondent<\/p>\n
     No.6. The representative       for the    insurance Company<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n                                            4<\/span><\/p>\n
     had     suggested       in   his     cross-examination                  of     this<\/p>\n
     witness that the claim form showing that the person<\/p>\n
     driving the vehicle at the time of the accident was<\/p>\n
     his     friend,     had      properly          been      filled         in.      The<\/p>\n
     suggestion has been denied by the witness. He has<\/p>\n
     also    stated      that     the     surveyor          of     the      insurance<\/p>\n
     company had sold the vehicle and paid an amount of<\/p>\n
     Rs.55,000\/-        to   him.        He    has     further           denied       the<\/p>\n
     suggestion put to him that the deceased was<\/p>\n
     driver and that he was not being paid any salary.\n<\/p>\n
                                                                               not his<\/p>\n
     7.     The     investigating         officer          of     the       insurance<\/p>\n
     Company i.e. the appellant herein was also examined.\n<\/p>\n
     He has stated that he had no material to indicate<\/p>\n
     that he was authorized to depose on behalf of the<\/p>\n
     Divisional        Manager      who       has     signed          the      written<\/p>\n
     statement. He has further conceded that there was<\/p>\n
     nothing      on    record      to    indicate          that      he     was      the<\/p>\n
     investigating officer who had filled in the claim<\/p>\n
     form.        He   conceded     that       there       was     no     contention<\/p>\n
     raised in the written statement of the Insurance<\/p>\n
     Company      to   the   effect       that      the      deceased         was     the<\/p>\n
     friend    of      respondent        No.6,      the     employer          who     was<\/p>\n
     insured.\n<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n                                           5<\/span><\/p>\n
     8.     The    Commissioner          for    Workmen’s         Compensation<\/p>\n
     has, after assessing the evidence on record, held<\/p>\n
     that      the       deceased        was         a workman within the<\/p>\n
     meaning of the Workmen’s Compensation Act.                             It has<\/p>\n
     further been held that he was employed on a monthly<\/p>\n
     salary of Rs.2000\/- and that he was driving the jeep<\/p>\n
     at the behest of the employer when he met with an<\/p>\n
     accident on 15.5.2001.                The Commissioner has then<\/p>\n
     calculated<\/p>\n
     Workmen’s
\n                      the
\n                          ig     compensation<\/p>\n
                      Compensation             Act
\n                                                      payable<\/p>\n
                                                       by
\n                                                                     under<\/p>\n
                                                                taking
\n                                                                                  the<\/p>\n
                                                                                into<\/p>\n
     consideration          the    age    of    the     deceased         and      the<\/p>\n
     relevant factor              and has awarded Rs.2,11,790\/- to<\/p>\n
     the claimants.\n<\/p>\n
     9.     Mr.Singh       appearing      for    the    Insurance          Company<\/p>\n
     submits      that     the    Commissioner         has   drawn       directly<\/p>\n
     contrary conclusions and inferences and, therefore,<\/p>\n
     the order is unsustainable.                He submits that, on the<\/p>\n
     one    hand     the    Commissioner        had    observed         that      the<\/p>\n
     claim form shows that the deceased was a friend, and<\/p>\n
     on the other, the Commissioner had held that he was<\/p>\n
     a paid driver of the employer.                   The learned advocate<\/p>\n
     then submits that the claimants or their so-called<\/p>\n
     employer should have brought on record some material<\/p>\n
     documents to          indicate      that    there was an employer-\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n                                             6<\/span><\/p>\n
     employee relationship between the two.                            He submits<\/p>\n
     that although under the Motor Vehicles Act, 1988 the<\/p>\n
     Insurance Company cannot take any pleas which are<\/p>\n
     contrary to the pleading of the owner of the vehicle<\/p>\n
     without       leave   of    the       Court,      under     the     Workmen’s<\/p>\n
     Compensation Act the insurance stands on the better<\/p>\n
     footing.       He buttresses this contention by relying<\/p>\n
     on the judgment of the Supreme Court in the case of<\/p>\n
     National<\/p>\n
                    Insurance<\/p>\n
     reported in (2006) 2 SCC 641.\n<\/p>\n
                                     Co.    Ltd.      v\/s     Mastan\n\n                                                       The learned advocate\n                                                                           &    anr.,\n                         \n<\/pre>\n
     has then pointed out that the aforesaid claim form<\/p>\n
     had    been    signed      by    the    respondent         No.6      and     that<\/p>\n
     indicates that the driver was a friend of the owner<\/p>\n
     of the vehicle.             He submits that Sr.No.3 of the<\/p>\n
     claim form requires particulars of the driver at the<\/p>\n
     time    of     the    accident.            One    of     the     particulars<\/p>\n
     required is, whether he was a paid driver or the<\/p>\n
     owner’s relative or friend.                 Instead of stating that<\/p>\n
     the driver was a paid driver, the respondent No.6<\/p>\n
     has chosen to describe the driver as his friend.                                 He<\/p>\n
     therefore submits that such a claim on behalf of the<\/p>\n
     relatives       of    the       deceased         ought     to     have       been<\/p>\n
     dismissed.\n<\/p>\n
     10.    The learned advocate for the claimant submits<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n                                          7<\/span><\/p>\n
     that the employer had stepped into the witness box<\/p>\n
     and categorically asserted that the deceased was his<\/p>\n
     paid employee and, therefore, the Court had accepted<\/p>\n
     this   evidence      and     had    granted      compensation.           The<\/p>\n
     learned advocate further submits that there was no<\/p>\n
     reason for respondent No.6 to have conceded that the<\/p>\n
     deceased was his paid driver when respondent No.6<\/p>\n
     has    also   been     saddled      with    payment      of     penalty,<\/p>\n
     compensation.\n<\/p>\n
     besides being jointly and severally liable to pay<\/p>\n
                             He     submits      that      there        is      no<\/p>\n
     perversity      in     this     finding       which       merits         any<\/p>\n
     interference from this Court.\n<\/p>\n
     11.    The learned advocate for the respondent No.6<\/p>\n
     i.e. the owner of the vehicle, points out that the<\/p>\n
     entire   form    has    been       filled   in    with     black        ink,<\/p>\n
     whereas the signature of the owner is in blue ink.\n<\/p>\n
     He submits that the owner has deposed before the<\/p>\n
     Court that he had only appended the signature to a<\/p>\n
     blank form and that he was not aware of the contents<\/p>\n
     of the form.         The learned advocate further submits<\/p>\n
     that there is no suggestion to the claimant that the<\/p>\n
     driver was a friend of the owner of the vehicle.                           He<\/p>\n
     also points out that the owner of the vehicle has<\/p>\n
     denied the suggestion put to him that the driver was<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n                                        8<\/span><\/p>\n
     his friend.      He has also in his cross-examination<\/p>\n
     deposed that the contents of the claim form were not<\/p>\n
     filled in as instructed by him and that the officer<\/p>\n
     of the Insurance Company had only requested him to<\/p>\n
     sign the claim form.\n<\/p>\n
     12.   After perusing the evidence and the judgment of<\/p>\n
     the Commissioner for Workmen’s          Compensation, in               my<\/p>\n
     appeal   need<\/p>\n
     opinion, the judgment and order impugned in this<\/p>\n
                     not   be    set   aside.        The    evidence         on<\/p>\n
     record establishes that the deceased was an employee<\/p>\n
     of the respondent No.6.           He was a paid driver and<\/p>\n
     was driving the jeep in that capacity when he met<\/p>\n
     with an accident.      Further more, although the claim<\/p>\n
     form shows that the driver has been described as a<\/p>\n
     friend of the owner, that description was filled in<\/p>\n
     by the officer of the Insurance Company as seen from<\/p>\n
     the deposition of the owner of the vehicle.                       There<\/p>\n
     is no material on record in the written statement<\/p>\n
     filed by the Insurance Company indicating that the<\/p>\n
     owner    was    not   the    employer      of     the      deceased.\n<\/p>\n
     Moreover, when the owner has been made jointly and<\/p>\n
     severally liable to pay the compensation, there was<\/p>\n
     no need for him to admit that the deceased was his<\/p>\n
     employee   without    it     being    true.     Besides, he has<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n                                         9<\/span><\/p>\n
     been made responsible solely, for paying penalty on<\/p>\n
     the compensation awarded.\n<\/p>\n
     13.   In    these        circumstances,        I       find       that    the<\/p>\n
     Commissioner has appreciated the evidence on record<\/p>\n
     correctly     and,       therefore,      there         is    no    need     to<\/p>\n
     interfere in the matter.               Once it has been accepted<\/p>\n
     that the driver was a paid employee of the owner of<\/p>\n
     the   vehicle<\/p>\n
     arising     out<\/p>\n
                       and<\/p>\n
                         of
\n                                had<\/p>\n
                               and
\n                                      met<\/p>\n
                                      during
\n                                             with<\/p>\n
                                                the
\n                                                        a    fatal<\/p>\n
                                                            course
\n                                                                        accident<\/p>\n
                                                                         of    his<\/p>\n
     employment,         the      Commissioner              for        Workmen’s<\/p>\n
     Compensation had no option but to grant compensation<\/p>\n
     in accordance with the Workmen’s Compensation Act.\n<\/p>\n
     15.   Accordingly, the Commissioner has                      granted      the<\/p>\n
     compensation and has directed the payment of penalty<\/p>\n
     and costs.        There is no reason to differ from the<\/p>\n
     view taken by the Trial Court and hence the appeal<\/p>\n
     deserves to be dismissed.\n<\/p>\n
     16.   Appeal dismissed.           The amount deposited with<\/p>\n
     the   Commissioner,         including      penalty,            costs      and<\/p>\n
     accrued interest, if any, shall be paid over to the<\/p>\n
     applicants.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n                                   10<\/span><\/p>\n
     17.   In   view   of   dismissal    of   the     appeal,        Civil<\/p>\n
     Application No.1874 of 2003 does not survive and<\/p>\n
     stands dismissed.\n<\/p>\n
                                 …..\n<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span>
\n            11<\/span><\/p>\n
                ::: Downloaded on – 09\/06\/2013 14:51:09 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The National Insurance Co. Ltd vs Smt.Manisha Chagan Karande & Ors on 31 July, 2009 Bench: Nishita Mhatre 1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 752 OF 2003 The National Insurance Co. Ltd. … Appellant v\/s Smt.Manisha Chagan Karande & ors. … Respondents […]<\/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":[11,8],"tags":[],"class_list":["post-178398","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe National Insurance Co. 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