The United India Insurance Company Limited v. Smt.P.Shyamala And 3 ORS

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD FRIDAY, THE THIRTY FIRST DAY OF DECEIVBER TWO THOUSAND AND TWENTY ONE PRESENT THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI CIVIL MISCELLANEOUS APPEAL NO: 236 OF 2007 (Appeal filed Under section 30 of workmen's compensation Act, aggrieved by the order and Decree dated 29.08.2006, passed in wc No.9 ol 2002, on ltre tite or tne commissioner for workmen's compensation and Assistant commissioner of Labour, Ranga Reddy District-ll,T.ANJAtAH KARMTKA SANKSHEMA BHAVAN,RTC ,X' ROADS, HYDERABAD.2O} Between:

The United lndia lnsurance company_ Limited, Rep by its Divisional Manager, Divisional Office-Xl, 3rd Floor, Tirumala'Towers, Malalipet, Hyderabad. .,.APPELLANT/OPPOSITE PARTY.NO.2 AND '1 . Smt.P.Shyamala, W/o.late P.Mallesh, Age: 27 years Occ: Household

2. P.Ramulu, S/o.Pullaiah, Age: 50 years, Occ: Agriculture

3. Smt P.Anasuya, W/o.P.Ramulu, age: 45 years, Occ: Household All are Rl/o.Annojiguda Village, KandukuiMandal, Ranga Reddy District .,.RESPONDENTS/PETITIONERS C.Shankaraiah, S/o.Late Veniah, Age: Major,Occ: Business R/o.Kandulur tvl & tN/I, Randa Reddy Distiict. ...RESPONDENT/ RESPONDENT CMAMP. NO:484 oF 2007 Petition under section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to stay the operation of the order dated 29.8.2006, made in w.c.No.g of 2002, on the file of the commissioner for workmen and Assistant commissioner of Labour, Ranga Reddy District-ll at Hyderabad.

Counsel for Appellant : SRt. A RAMAKRISHNA REDDy Counsel for Respondent No.2: SRI KOTA SUBBA RAO Counsel for the Respondent No.3: SRI MOHAMMED SHAKEEL The Court made the following JUDGMENT

THE HONOU RABLE S]!IT. JUSTICE P. MADII,\VI DIiVI CIVIL MIS( ]ELLANEOUS APPEAL NO.236 OF 2OO7 JUDGMENT:

This Civil M scellaneous Appeal has been filed by the Opposite Party No.2/lnsura lce Company challenging the Award of the Commissioner fc' Workmen's Cornpensation and Assistant Commissioner of J .abour, Ranga Reddy District-ll at Hyderabad in W.C. No.9 o12002 dated 29.08.2006.

2. The briellact rleading to filing olthis Appeal are that one Sri P. Mallesh was worl ing as a driver on tractor and trollel bearing No.AP28Q-3863 a Ld AP28Q-3864 belonging to the opposite pafty No.1. On 12.03.21 01, the said driver was driving the same with a load of bricks fi rm Rajhuloor Village to Annojiguda torvards Thimmaipally. Wh rn the said tractor and trolley reached near the Manneni Jallkatta r f Thimmaipally Village at about 04.30 p.m. the said tractor and trol ey turned turtle due to loss ofcontrol by the driver and the driver died on the spot and other labourers travelling in the trolley also sustaine lgrievous injuries.

3. The dependar:s of the driver flled the application befbre the Commissioner for' Vorkmen's Compensation seeking compensation of Rs.2,50,000/-. I he applicants claimed that the deceased was 26 years of age and tl at he was being paid Rs.2,700r- per nronlh as wages by the res:ondent No.l/orvner of the vehicle. In the

C.M.A.No.236 of 2007 Workmen's Compensation case, the owner of the vehicle appeared and confinned the employment of the deceased as driver and as regards the wages, he submitted that he was paying Rs.2,000/- as wages. He also stated that the deceased Mallesh had possessed a licence to drive the vehicle and that he has verified the same before employing him as a driver. The Insurance Company denied that there was any employee and employer relationship between the deceased and the owner of the vel.ricle and also that the deceased held a valid driving licence at the time of the accident. The insurance company also stated that the respondent No.1 used the tractor and trolley for commercial purpose violating the policy conditions of the usage of tractor-cum-trolley for agricultural purposes and therefore, they are not liable to pay the compensation. They also disputed the age of deceased as 26 years.

4. The learned Cornmissioner for Workmen's Compensation, after considering the evidence available on record, held that the employee and employdr relationship between the deceased and respondent No'l was proved and the age of the deceased was also proved to be 28 years in the post-mortem report. He accordingly adopted the age of the deceased as 28 years and computed the compensation by adopting the wages of the deceased at Rs.2,000/- per month and awarded compensation of Rs.2,11,7901-. Aggrieved by the compensation granted by the Commissioner for Workmen's Compensation, the

C.NLA.No.236 ot2007 Insurance ( ompany is now in appeal before this CoLrrt by raising the following sr bstantial questions of law;

i) The eamed Commissioner failed to see that the alleged death of dr iver was occuned while he was on duty as <lriver of Trao tr and Trailer and when one's specific plea of the appel ant-lnsurance Company is that the driver dt-r not have a licenre at all and in the absence of production ol. license or copy tf the license before him, whether the Comrnissioner is comp )teltt to entertain application in a case of death of driver in the absence of production of license or copy ol license is the su rstantial question of law that arises lor considerarion,/ ii) The k amed Commissioner failed to see that the respondent No. l/< pposite party No. 1 used the vehicle for comrnercial purpos 3 duly violating as to the terms and conditions of, the policy. as such the appellant insurance conlpany is not liable to pa) compensation in such circumstances whether the Comm ssioner is entitled to entertain application despite violatir ns and tenns and conditions of the policy try the respon( ent No.l/insured is also substantial question of law that arir es for consideration?

5. Heard S'i A. Ramakrishna Reddy, learned counsel fbr the appellant/insur ince company and Sri Kota Subba Rao, learned counsel for tl e second respondent/second applicant. perused the material placed on record.

6. The lear led counsel for the appellant/insurance company submits that urder Section 2 (9) of the Motor Vehicles Act, l9gg, 'driver' is defin:d to include, in relation to a motor vehicle which is drawn by anotht r motor vehicle, the person who acts as a steer man of

C.M.A.No.236 of 2007 the drawn vehicle. Under Section 2 (10) of the Act, 'driving licence' is dellned to rrean the licence issued by a competent authority under Chapter-ll authorising the person specified therein to drive, otherwise than as a learncr, a motor vehicle or a motol vehicle of any specified class or description. He further subrnitted that under Workmen's Compensation Act, 1923, Section 2 (n) (ia) (c), "workman" means any person who is a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle.

7, The learned counsel for the appellant/insurance company submits that since no driving licence has been produced by the applicants to prove that the deceased person was holding a valid driving licence and that he was a driver employed by the owner of the vehicle, the Cornmissioner has erred in treating the deceased as a workrran under Workmen's Compensation Act and awarding compensation thereunder. ln supporl of this contention, the iearned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court of India in Beli Ram Vs, Rajfuder Kumar & another [Civil Appeal Nos.7220-7221 of 2011], dated 23.09.2020 to argue that it is the responsibility of the owner of the vehicle to verify whether the person who is entrusted with the vehicle to drive the same possessed a valid licence or not.

He therefbre submitted that since the driving licence was not filed either by the applicants or opposite party No.1/owner ol the vehicle, opposite parly No.

// I C.lvI.A.No.236 of 2007 conditions of the insurance company and hence, the insurance company was rot liable to pay the compensation.

8. The lear red counsel for the appellant/insurance company also placed relianc( upon a decision of this Court in CMA No.419 of 2006, dated 24.03.2 )21 wherein this Court held thar u,hen a specilic objection was raised before the authority under the Workmen's Compensation Act that the deceased did not have a valid Iicence, the burden is on t re applicants to establish that, as a matter ol fhct the deceased was i mployed with the respondent/owner and further that he had a valid dr ving licence at the time of the accident, and in the absence of any evidence, the insurance company is not liatrle to pay the compensati rn. For coming to this conclusion, this Coufl relied on Beli Ram's casr (cited supra).

9.

On the other hand, the learned counsel for the second respondent/sect nd applicant submits that the respondent,'ou,ner of tlie vehicle had ck arly submitted befbre the learned Comrnissioner fbr Workmen's Co npensation that he has verified the driving licence of the deceased Lefore employing him as driver ol the vehicle and therefore, accor ling to him, the decisions relied upon by the insurance Company are n )t applicable to the case on hand. In support of his contention that where there is any ambiguity as to whether the petitioner hetd r driving licence or not, the presumption should be

C.M.A.No.236 of 2007 drawn in favour of the workman, the learned counsel for the second respondent/applicant placed reliance on the following decisions: i) Rita Devi v. New India Assurance Co. Lttl. [2000 ACJ 801]. ii)Parminder Singh v. New India Assurance Company Ltd. 12019 ACl240t.

iii) K. Varalaxmi v. [Jnited India Insurance Co. Ltd. [2015 ACJ 2232).

iv) Llnited India Insurance Co. Ltd. v. Lehru [2003 ACJ 6l 1]. v) laya Biswal v. Branch Manager, Iffco-Tokio General Ins. Co, Ltd [2016 ACJ 721].

vi) P. Narasimha Redtly v. K Ramachander 12004 (4) ALT 51 11. vii) ZS. Shylaja v. Oriental Insurance Co. Ltd, 12014 ACJ 4801. viii) Oriental Insurance Co. Ltd,, Tanuku v. M. Nagaraiu 12021

(3) ALD 227 ( P)1.

ix) Nationat Insurance Co. Ltd., Basheerbagh, Hyd. V. T. Sabitha [20r6 ( r) ALD 6s6].

x)Gurnail Singh v. Bajai Allianz General Ins. Co. Ltd, 12019 ACJ 7r31.

xi) IJnited India Insurance Co, Ltd,, Sec'bad v. Vakiti Balraiu 12012

(3) ALD 661.

xti) Gotla Rajanna Etc. Etc. v. the Divisional Manager and Anr. Etc. t2017 (l) ACI SC-11.

10. Having regard to the rival contentions and the material on record, in respect of first substantial questions of law, the relevant case law is the decision of the Apex Court in Beli Ram's case (cited supra). In the said case, it was held as under: "8. The only question which has been debated before us, is as set out at the inception of the judgmenl. The appellant sought to rely upon the recent judgment of this Court, Nirmala Kothari v.

,/ C,M.A.No.236 of 200?

United h dia Insurance Company Limited tG020) 4 SCC 49J. The question )f law exdmined in this judgment h,as as to what is the extent oJ care/diligence expected of the employer./insw.ed while emplovin.' a driver. The legal position regarding the liability o/'the insuran* company when the driver of the ol/bnding tehicle possessec, an invalid/fake driver's licence was od\tert(l to ./or answerin! this qlestion, by refbrring to eorlier jtuliciul pronounc,ments and the same yvas culled out in paro l2 a.s under; " 12. l|/hile hiring a dri,er the employer is expe(te.l to rcrify ii the tlritvr h s, driying licence. lf the driver produces a licentt which on the lirce of it lot l$ genuine, the employer is not expected to./itrther investigate into the o thenticit! ofthe licence unless there is cause kt beliete othen|ise.

U the e nployertinds the driver to be competent to drite the vehi<:le qrrl has satis-ted himself that the drfuer has q driving licence there v,ould bc no brea h of Section 1a9(2)(a)(ii) and the insurance company woukl be liabl. under the policy. It would be unreasonable to place such cr high onus on the insured to make enquiries wtth RTO| all over thi counrry rc ascej,ain the veracily of the driving licence. However, d the insuronce coml tny is able to proye ,hat the owner/insured wos aware or hot! notic.e that i rc licence was fake or invalid and still permitted the person to d ve, the i turance compqny would no longer continue to be liable.

9. 14 e have heard learned counsel for the parties and on o query bei, g raised, whether there is a view taken on the question as to wha' would be the consequence of a t,alicl driving licenc.e having ex ired both the learned counsel for the appellant and learned co mselfor respondent No.2 insurance compeny stated that there was to direct view on this point. We elen posed a question qua any jL dicial view of the High Cottrts in this behatf, bt rhe answer to the same was also in the negoti,e. ll/e resen-ecl tha orders bec ntse we wanted to satist'y ourselves ot'er this aspect.

10. l'e have not been able to trace out an.v .iudgnxent.s ol this Court bul 'here are judicial pronouncements o/- the l-ligh Courrs dealing wit\ the issue. "

Thus, it can be ;een that in the said case, the question was as to what would be the c< nsequences of a valid driving licence having expired, whereas in the c ase before this Cour-t, the case is rvhether the deceased driver possesse, I valid driving licence at the time of accident. The owner of the ve ricle/respondent No.l in the WC admitted in his chief

"'

C.M.A.No.236 of 2007 examination that he had employed the deceased workman as driver after verifying liis dliving licence. As held by the Apex Court in the case of Nirmala Kothari (cited supra), if the employer verifies and is satisfied that the driving licence appears to be genuine, he is not expected to further investigate into the authenticity of the licence unless there is reason to believe othelwise. In this case, the deceased was the driver and the claimants may not have been in a position to produce the driving licence of the deceased. Therefore, in the absence of any negative evidence, the evidence of the employer has to be accepted.

11. In the case of K. Varalaxmi (cited supra) which has been relied upon by the iearned counsel for respondents, the Coordinate Bench of this Court held that while interpreting the provisions of benevolent Act, where two views are possible, the view favourable to the persons for whose benefit the Act is enacted, has to be taken into consideration to achieve the real object.

12. ln the case of Lehru (cited supla), the Hon'ble Suprerne Court of India held as under:

"15............The aim and purpose being that an insurance company w'ould be available to pay. The business of the company is of insurance. ln all businesses there is an element of risk. All persons carrying on business must lake risks associated wilh that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same tinrc innocent parties ,nust not be made to suffer or loss. These

C.M.A.\o 2:J6 of 2007 provisions m rct these requirements We are thus in agreement t )t!11 what is laid tlown it't aJorementioned cr.ses' viz ' thctt in ortler to avoid tiabili v it is not sffictent lo show that the person driing at the time of r :cident was not dub) licensed' The insurctnce company must establi h that the breach v'as on the port oJ the insured " Thus, the first su lstantial question of law is decided against the appellant.

13. As regard: the second substantial question of law is concerned' this Court findi that in the case of United India Insurance Co" v' Vakiti Balraju & others (cited supra)' this Courl held as under: "9 A strong objection rctised on behalJ of the appellant is rhat the d'iver of the accident vehicle did not hold valtd licence' l/irtually, no evidence was adduced in this regard Assuming th(tt the drive did not hold licence' that hardly would be of aryt releyanceindeterminingtlleliabiliryartsingonaccountofthe death of another workman' Though Section 147 of the Motor Vehicles lct, 1988 manclates that an insurance policy token out in respect o'a vehicle shall cover the one arising under the Act' the grounds that can be raised by an insurer in this regard are relativel; restricted, compared to the claims under the Motor Vehicles Act, 1988' "

14. Therefo'9, even if there is a violation ol the conditions of the policy, the ir surance company is liable to pay the colnpensation and recover the s rme from the owner of the vehicle' In this case' the copy of the insura lce policy is not filed to determine as to the coverage of the policy. ''herefore, no decision can be given on this issue as to whether the insured has violated the conditions of the policy' However, tt e responsibiiity of the appellant towards the deceased is

\ \ C.M.A.No.236 of 2007 not absolved and this question of law is answered against the appellant.

15. The Civil Miscellaneous Appeal is accordingly dismissed. No order as to costs.

16. Pending miscellaneous petitions, if any, in this CMA shall also stand dismissed.

SD/.B.S.CHIRANJEEVI JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To,

1. The commissioner for workmen's compensation and Assistant commissioner of ' i;b.ri R;r.lir neoov oiJtrict-il'T.Aniaiah Karmika sankeshema Bhavan' RTC 'X' Roads. Hvderabad-20 (With Record)

2. one bC to sii A. Ramakriihna Reddy, Advocate LOP-qCl

5. O;a CC to Sri Mohammed Shakeel, Advocate [o-PUC] +. One CC to Sri Kota Subba Rao, Advocate [OPUC]

5. Two CD CoPies 6, One Spare CoPY PCSD.

obr Jl/ "

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HIGH COURT DATED: 31112 2021 I e

JUDGMENT

2-!22 N B7 Fti l CMA.No.236 cf 2007 I ).'

DISMISSING l HE CMA NO COSTS a-