Partly allowed

United India Insurance Company v. T.Ramesh and Anr.

Telangana HC4 Jun 2021CMA/4562/2003

Case brief

AI extract

What is this about?

The court partly allowed an appeal filed by an insurance company against a workmen's compensation award. It directed the insurer to pay compensation first and subsequently recover it from the vehicle owner, despite a license violation and unquantified 'alcoholic smell' on the deceased driver.

What did the court decide?

Insurance company to pay compensation to the claimant in the first place and thereafter recover the same from the insured/owner by following the law as prescribed.

United India Insurance Company Vs T.Ramesh… — Pension and Retirement Benefits | Telangana HC (2021)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE FOURTH DAY OF JUNE TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE GHALLA KODANDA RAM

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CIVIL MISCELLAN EOUS APPEAL N O: 4562 OF 2003

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Appeal filed Under Section 30 of Workmen,s Compensation Act against the order dated.03.11.2003 made in w.c.No.68 of 2003 ora the file of the commissioner for Workmen Compensation and Assistant Commissionetof Labour-lll, Hyderabad.

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Between:

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United lndia lnsurance_Company, represented by its Regional Manager United lnsurance Building, lV Floor Basheerbagh, Hyderdbad.

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.AppellanUOpposite Party No.2

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AND

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T. Ramesh S/o. T. Murthy, Aged about 25 years. Occ. Driver, R/o.H.No.2-44'14130 Krishna Nagar Kachiguda Hyderabad

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(Died per LRs R.R. 3 to 6 vide Separate sheet)

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It/ohd. Azeemuddin, S/o. Mohd. Nazeeruddin, R/o. H.No..l-g-680, Nallakudnta Vidyanagar, Hyderabad.

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Smt T. Anjali, Wo. Late T. Ramesh, aged about 34 years, Occ. Housewife.

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T. Shirisha, D/o. Late T. Ramesh, aged about 34 years, Occ. Nil.

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T. Shivani, D/o. Late T. Ramesh, aged about 15 years.

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T. Sai Kiran, S/o.Late T. Ramesh, aged about 13 years.

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All are R/o. H.No.2-4-4'14111, Plot No.125, Krishna Nagar, Kachiguda, Hyderabad.

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RR 3 to 6 are brought on record as LRs of the deceased R1 vide Court Order dated. 03.06.2021 in C.M.A.MP.No.67 of 2015 In C.M.A.No.4S62 ot 2003,

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...Respondents

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Counsel for the Appellant: SRI E,VENUGOPAL REDDY

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Counsel for the Respondent No.2: SRI J. KANAKAIAH

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Counsel forthe Respondent Nos.3 to 6: SRI J. PRAMOD GOUD

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The Court made the following: ORDER

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THE HON' BLE SRI JUSTICE CHALLA KODAN DA RAM

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CIVIL MISCELLANEOUS APPEAL No.4562 of 2oo3

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JUDGMENT

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This is an appeal filed by the United India Insurance Company challenging the order dated 03,11,2003 passed by the commissioner, Workmen's Compensation, in W,C,No.68 of 2003, 9-anting a total compensation of Rs.3,34,851/- to the cla ima nt-T-Ra mesh, who suffered injuries and also loss of earning capacity in a motor vehicle accldent that occurred on 29.03.2003 while the claimant was performing duty as driver of lorry bearing No.Ap-37U-1274 belonging to respondent No.2-Mohd. Azeemuddin.

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Brief facts of the case are that the cla im a nt/respondent No.1T.Ramesh filed a claim petition in W.C.No.6B of 2OO3 stating that on 29.03.2003, the claimant was discharging duties as driver of lorry bearing No.AP-37U-1274 proceeding from Hyderabad to Vijayawada; that when he reached Dharmajigudem at about B:OO pM, a lorry bearing No.AJK-0322 proceeding ahead of the lorry of the claimant stopped suddenly without indication and there was no opportunity for the claimant to manoeuvre his lorry safely, and the accident occurred. The claimant suffered serious injunes and he was shifted to Osmania General Hospital and underwent operation in which his right leg had to be amputated. The claimant lost his earning capacity due to the amputation and also the injuries suffered in the accident, and therefore filed the said claim petition.

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On behalf of the claimant, AW.1 was examired, and the documents Exs.A1 to A5 were marked. None examineC on behalf of

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( i

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respondents, however,^{Exs,D1-insurancepolicy,and Ex.D2-copyof} medico legal record was^marked.

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The Commissioner, after^{consideringthe oral anddocumentary} evidence adduced by the^{parties, awardeda totalcompensation of} Rs.3,34,851/- holding both^{the owner and insurer jointlyand severally} liable to pay the compensation,^{Aggrieved by the same, the insurance} company filed the^{presentaPPeal.}

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Relying on National Insurance^{CompanyLtd. v. Swaran} Singhl, learned counsel^{for the appellant contendsthat the claimant} possesses license to drive a light motor vehicle^{(LMV), and he had} driven a N4ITSUBISHI vehicle^{which is a medium goods vehicle (lvlGV),} and therefore, the claimant^{was not in possessionof an effective} driving license to drive the^{subject vehicle And such an act} constltutes violation of^{policy conditions and therefore the insurance} company is not liable to^pay the^compensation

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It may be noted that in^{paragraph108 and sub-para(iii) of} paragraph 110 of the Swaran Singh⁽¹ supra)^{reads as under:}

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"'108. Although,^{as noticed hereinbefore, there are certainspecial} leave^petitions wherein the^{persons having the vehiclesat the time} when the accidents took^{place did not hold anylicence at all, in the} facts and circumstances of the^{case, we do not intend to setaside} the said awards. Such awards^{may also be satisfiedby the} petitioners herein subject to their right to^{recover the same from the} owners of the vehicles in^{themanner laid downtherein.But this} order may not be considered^{as a precedent.}

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110....

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(iii). The breach of policy condition e.g. disqualification^of the driver or invalid driving^{licenceof the driver, as containedin} sub-section^(2Xa)(ii) of Section^149,has to^{be proved to have been} committed by the insured^{for avoidingliability by the insurer'Mere} absence, fake or invalid driving^{licenceor disq ua lificationof the}

'^{:oo,r( t) ac.tI}

cma_4562 2003 CKR, J

driver for driving at the relevant time, are not in lhemselves defences available to theinsurer against either the insured or the third parties. To avoid its liability towards the insured,':he insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the c,)ndition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time."

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Further, the Hon'ble Supreme Court in Kusum Lata v. Satbi12, in paragraph 13 held as under:

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"13. ln respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the insurance company has to pay and then may recover it from the owner of vehicle. This court is affirming that direction in view of the principles laid down by a three-Judge Bench of this court in the case of National lnsurance Co. Ltd. v. Swaran Singh,2004 ACJ 1 (SC)".

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As per Section 2(21) of the Motor Vehicles Act, an LMV is one that has a Gross Laden Weight (GLW) of 7500 K9, and an tvlcv is one that has a GLW between 7500 to 12000 Kg. In the instant case/ the vehicle involved in the accident is a MITSUBISHI vehicle whose GLW is 8800 Kgs. Therefore, the subject vehicle comes under a Medium Goods Veh icle (MGV).

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The^judgment in Mukund Dewangan v, oriental Insurance Company Ltd3 does not apply to the facts of the present case as the ,ssue in Mukund Dewangan is with regard to the necessity of endorsement on the license for a person already authorised to drive a non-transport LlvlV, to drive a transport vehicle of same class i.e., GLW of 7500 Kg.

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In the instant case, the deceased possessed th€ driving licence to drlve an LMV, therefore it is a case of violation of policy conditions

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l0tI ACJ 926 I (201?) ll SCC 663

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in that the owner had entrusted the I4ITSUBISHI vehicle which is an MGV class vehicle to a person holding driving license to drive an Llvlv class of veh icle.

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In terms of Section 3(1)(b)(i) of the Employees Compensation Act, 1923, (45 of 2009) (formerly Workmen,s Compensation Act, 1923), during the course of employment, in the event of accident to a workman, the employer shall be liable to pay compensation. However, the exceptions are enumerated under Section 3(1)(a) and 3(1)(b)(i), ( ii) and ( iii).

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It is the contention of the learned counsel for the appellant that the claima nt/workman was under the influence of alcohol and therefore the insurance company is not liable to indemnify the employer by paying compensation for the injuries suffered by the cla imant in the accident.

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The ground of 'alcoholic influence' urged by the insurance company falls under an exception under Sub-Section 3(1)(b)(i) of the Act, whereunder the employer is exonerated from compensating the workman for the injury suffered during the course of employment if the workman is found to be under alcoholic influence, It may be noted that though under the Employees Compensation Act, 1923, the workman is not entitled to compensation if he/she is found to be under 'alcoholic influence' during the course of employment, nejther the Act nor the Rules framed thereunder per se specify the measure to determine that a workman was under.alcoholic influence,.

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However, it may be noted that Section 1g5 of the Motor Vehicles Act, 1988 makes driving a vehicle under alcoholic influence an offence and, as per the Motor Vehicles Act, there is an analysis/methodology specified which is used to measure and quantify the alcoholic content

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cma_4562_2001 CKR, J

I )

\ {

in a person to say that^{personis under alcoholicinfluence,According} to lvlotor Vehicles Act, a^{person is said to be in 'alcoholiccondltion'} when the alcohol content in his/her blood,^{when analyzedwith breath} analyzer or any other test including laboratory^{test, exceeds30 mg for} 100 ml of blood.

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In the absence of there being any measure to^{assess'alcoholic} influence'under the Workmen's Compensation^{Act, 192:t,the measure} as specified under the Motor Vehicles Act,^{1988, wh ich is a later} enactment and which contains a specification^{to measure/assess the} 'alcoholic influence', can be safely taken into consideration.

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In the instant case, in Ex.D2, it is mentioned that^{there ls} 'alcoholic smell' in the 'breath' of the injured. Except stating that there is 'alcoholic smell', no reading/measure was indicated in^{Ex. D2 and} there is no test result to say that the^'alcohol content'exceeded^{30 mg} per 1OO ml of blood. Therefore, mere noticing of^'alcoholic smell'in the breath of the lnjured cannot be categorised^{as 'alcoirolic influence',} particularly in the absence of authenticate test resLllts of alcohoi content in the blood of the injured, and^{more particularly whena} measure exists to come to a conclusion that a^{person is under} 'alcoholic influence'. Therefore, the contention^{of the learnedcounsel} for the appellant that the claima nt/inj^u red was^{under 'alcoholic} influence'is liable to be rejected and^{is accordingly rejected.}

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The insurance company though not^{liable to indemnifythe} insured on account of the violation committed by^{the insured by} entrusting the vehicle to the claimant^{who does not hold competent} driving license to drive the said category of^{vehicle, hcwever,in view} of the^judgment of the Hon' ble Supreme Court^{in Swaran Singh(1} supra), the insurance compahy cannot^{be completely oxoneratedand}

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it is a fit case to direct the insurance company to pay the compensation amount to the claimant in the first place, and thereafter recover the same from the insured/owner of the vehicle by following the procedure prescribed in law.

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Accordingly, the appeal is partly-allowed with a direction to the insurance company to pay the compensation amount to the claimant in the first place, and thereafter recover the same from the owner of the vehicle in accordance with the procedure prescribed in law. No costs. Miscellaneous petitions, if any pending, shall stand closed.

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SD/. K. SAILESHI ASSISTANT R GISTRAR //TRUE COPY// SECTION ICER

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To,

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