Allowed

Reliance General Insurance Co. Ltd. v. Smt. Vimla and Others

Allahabad HC20 Jul 2018FAFO/2490/2012

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's appeal, setting aside an award where findings on employment and driving licence validity were lacking. The court directed the Workmen Compensation Commissioner to frame issues, admit the licence, record definitive findings, and pass a fresh order within six months.

What did the court decide?

Directions issued to frame issues on employment and driving licence validity, admit the licence, record findings, and pass a fresh order within six months; claimant granted liberty to produce document

Reliance General Insurance Co. Ltd. Vs… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 26

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Case :- FIRST APPEAL FROM ORDER No. - 2490 of 2012

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Appellant :- Reliance General Insurance Co. Ltd. Respondent :- Smt. Vimla And Others Counsel for Appellant :- S.K. Mehrotra Counsel for Respondent :- Rovs Chauhan,Sovs Chauhan Hon'ble Ajit Kumar,J.

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This appeal is directed against the award passed by the Workmen Compensation Commissioner, Agra in W.C.A. Case No. 162 of 2010. Admittedly, It is a case where one Satyendra Singh had died while driving a truck bearing DL01-LG9285 in a road accident. The claimed petition under the Workmen's Compensation Act, 1923 was put up by the wife of the deceased bringing on certain documents like the insurance of the vehicle, the route permit and the fitness certificate. The insurance company swung into action and directed for investigation by its surveyor and put up its defence before the Workmen Compensation Commissioner, Agra questioning the proceedings before Workmen Compensation Commissioner, Agra for want of jurisdiction, on the plea that the accident took place at Agra-Etawa Road and further, it was not proved from the record as to whether the claimant was a resident of Agra or not. The argument was that the Commissioner ought to have issued notice first to the Commissioner of the place where the jurisdiction was.

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This above point was decided by the Workmen Compensation Commissioner, Agra and thereafter against that a writ petition was filed and the writ petition was

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disposed of vide order dated 09.05.2012 with the direction that the plea can be taken in the appeal in case preferred against final award to be passed by the Workmen's Compensation Commissioner, Agra.

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In this appeal besides the question of jurisdiction, the learned counsel for the appellant has raised the plea that after the evidence was led by the parties and the written statement was also filed questioning the accident in the first instance and then secondly questioning the employment of the deceased with the owner of the ensured vehicle, Workmen's Compensation Commissioner, Agra ought to have framed issues/points for determination as provided under Rule 28 of the Workmen's Compensation Rules.

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Per contra, the argument advanced on behalf of the learned counsel for the respondents is, framing of issues is not mandatory and, therefore, the argument advanced by the learned counsel for the appellant does not have any merit. He relied upon the Division Bench judgment of this Court in the case of ICICI Lombard General Insurance Co. Ltd. Versus Rakesh and Another, 2010(2) T.A.C. 237(All), wherein it has been held that framing of issues is not mandatory. He has further placed reliance upon another judgment in the case of " New India Assurance Company Limited Vs. Braja Kishore Sutar, 1992 ACJ 715 .

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On the point of jurisdiction he has argued that it is not a case of inherent lack of jurisdiction which may render the award void if otherwise it is sound on merits.

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I have considered the rival submissions of the learned

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counsel for the parties and have perused the record.

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Framing of issues have already been held to be not mandatory under the authorities cited and so I do not consider this appeal can be allowed on the ground that the issues are not framed by the Workmen Compensation Commissioner, Agra. The question, however, remains to be decided as to whether the Workman Compensation Commissioner really recorded findings with regard to the employment of the deceased with the owner of the vehicle to hold that it was a case of death during course of employment and on account of that employment and that the deceased was having valid driving licence while driving the vehicle, in the light of the evidence led by the parties.

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From the bare perusal of the award, I find that no driving licence was submitted before the Workmen Compensation Commissioner, Agra by the claimant. The copies of the postmortem report, the registration of the vehicle, the panchnama/inquest report, the insurance policy and the fitness certificate were of course produced. The Workmen Compensation Commissioner proceeded to decide the matter on the basis of above documents and the statement recorded by the claimant and defence witnesses. Since the owner of the vehicle did not appear before the Workmen Compensation Commissioner, Agra, he proceeded to decide the matter exparte against him.

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The Workmen Compensation Commissioner, Agra also relied upon the report of the surveyor of the insurance company and the statement recorded and the cross

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examination done of the said surveyor by the counsel of the claimant. I find that the Workmen Compensation Commissioner, Agra has proceeded to record the finding of fact on the question of employment of the deceased with the owner of the vehicle, by completely relying upon the report of the surveyor and also the examination and cross examination. The relevant paragraph of the finding returned by the Tribunal is quoted hereunder:-

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ममतकसततनदसससहपततववददनस० - १कततनययजनममडडवईवरहयनवतथव उकघटनवकतबवरतममववहनसववमददवरवथवनवबकतवरममदजरकरवईगयद एफ०आई०आर०सतसपषहहतकममतककमरकवरसततनदसससहडडवईवर कतरपममतनययसजतथवतथवबदमवकमपनदकतसवरयरदवरवभदअपनत बयवनममममतकसततनदकयडडवईवरकतरपममउकववहनपरतनययसजत हयनवतथवघटनवसथलकतथवनवबकतवरममददघरटनवकतसमबनधममजवजच करनवसवदकवरतकयवगयवहह।

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I have a considered this finding in the light of the statement which has been brought on record by the counsel for the appellant. This document (Annexure 4 affidavit filed in respect of appeal) has not been disputed as such to be fake or forged or manipulated one. From the perusal of the entire statement of the surveyor/investigator of the insurance company namely Smt. Madhubala, I find that no such statement has been made by the surveyor/investigator of the insurance company and, therefore, the finding returned by the Workmen Compensation Commissioner, Agra (supra) would amount to misreading of oral evidence.

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I further find that regarding validity of the driving licence, no finding has been returned, obviously I think because it was never produced before the Workmen Compensation

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Commissioner, Agra. In the case of compensation under the Workmens' Compensation Act, 1923 the primary issues are to be decided with regard to the employment of the deceased and it has to be seen by the Workmen Compensation Commissioner, Agra that the person claiming the compensation under the Act of 1923 is necessarily an employee to become entitled to get compensation under the act.

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Secondly, in order to make the injured eligible or entitled to be indemnified by the ensurer, it was also the primary duty of the Workmen Compensation Commissioner, Agra to record the finding to that effect as to whether the vehicle was duly ensured or not in the first instance and then secondly person who was driving the vehicle whether was having a valid driving licence or not, as in the absence of valid of driving licence, the driving of vehicle will itself amount to violation of the terms and conditions of the insurance policy and then in these circumstances the insurance company cannot be held liable to indemnify the ensured.

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However, on these above points, though a categorical finding is required to be returned but under the impugned order, is all lacking. From the perusal of the order, I find that since the driving licence was not filed before the Workmen Compensation Commissioner, Agra and so the same has not been considered. The learned counsel for the respondents states that the claimant is in possession of the valid driving licence of her husband and it is only due to lack of knowledge and illiteracy, the same could not have been filed before the tribunal.

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In view of the above, I consider it to be a fit case to be decided afresh. The Workmen Compensation Commissioner is, therefore, directed to frame issues/points of determination with regard to the employment of the deceased with the owner of the vehicle ensured and also with regard to the validity of the driving licence which the deceased was in possession at the time of accident to make it convenient to return the findings of fact especially keeping in mind that it is a claim to be adjudicated within the parameters of Employees Insurance Act, 1923. The claimant is also granted liberty to lead such documents as she may be advised to be necessary after framing of issues, before the Workmen Compensation Commissioner, Agra. The Workmen Compensation Commissioner, Agra is directed to complete the exercise by passing a fresh order in terms of the direction contained herein above within a period of 6 months.

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The appeal is allowed and the order/award passed by the Workmen Compensation Commissioner, Agra in WCC No. 162 of 2010 dated 30.04.2012 is hereby set aside.

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Order Date :- 20.7.2018 R.C. Yadav/Chandramani

Reliance General Insurance Co. Ltd. v. Smt. Vimla and Others

Case brief

What is this about?

What did the court decide?

Reliance General Insurance Co. Ltd. v. Smt. Vimla and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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