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United India Insurance Co. Ltd., rep. by its Divisional Manager S.K. Choudhary Vs. Veeranjaneyalu and Another - Court Judgment

LegalCrystal Citation
CourtKarnataka Dharwad High Court
Decided On
Case NumberM.F.A.No. 5574 of 2008 (WC)
Judge
AppellantUnited India Insurance Co. Ltd., rep. by its Divisional Manager S.K. Choudhary
RespondentVeeranjaneyalu and Another
Excerpt:
..... liability of to pay compensation whether person holding learners license can drive passenger auto rickshaw and insurance company is liable to compensate claimant. court held reading of condition imposed in insurance policy clearly disclose that person holding effective and valid learners license to drive category of vehicle insured thereunder may also drive vehicle when not used for transport of passengers at time of accident as on date of accident, driver of auto rickshaw was having learners license as per conditions imposed in insurance policy he cannot drive passenger auto there is violation of conditions of policy, wherein, as per conditions of policy, owner has to entrust vehicle to a person holding valid and effective driving license judgment and order passed by..........main contention of the appellant is that as on the date of accident, the driver of the passenger auto rickshaw was not holding the valid and effective driving license to drive the passenger auto, on the other hand, he was holding the learners license and he cannot drive the passenger auto along with the passenger. hence, the order passed by the wcc fastening the liability on the appellant-insurance company is contrary to law. 3. the facts of the case leading to filing of this appeal are as follows: the first respondent herein filed a claim petition contending that he was working as a driver in the auto rickshaw bearing registration no.ka-17/6384 belonging to the second respondent herein. on 28-02-2003, as per the instructions of the owner of the vehicle, while he was carrying the.....
Judgment:

(Prayer: This MFA is filed u/s 30(1) of the W.C. Act against the order dated 23-1-2008 on the file of the Workmen s Compensation Commissioner, Sub-Division-I, Bellary in CWC:WCA:CR:No.152/2003.)

1. The United India Insurance Company Limited has filed this appeal challenging the judgment and order dated 23-01-2008 made in CWC:WCA:CR:NO.152/2003 passed by the Labour Officer and Commissioner for Workmen s Compensation, sub-Division-1, Bellary (hereinafter referred to as the WCC for short) fastening the liability on the appellant to compensate the claimant.

2. The main contention of the appellant is that as on the date of accident, the driver of the passenger auto rickshaw was not holding the valid and effective driving license to drive the passenger auto, on the other hand, he was holding the Learners License and he cannot drive the passenger auto along with the passenger. Hence, the order passed by the WCC fastening the liability on the appellant-Insurance Company is contrary to law.

3. The facts of the case leading to filing of this appeal are as follows:

The first respondent herein filed a claim petition contending that he was working as a driver in the auto rickshaw bearing registration No.KA-17/6384 belonging to the second respondent herein. On 28-02-2003, as per the instructions of the owner of the vehicle, while he was carrying the passengers towards Somasamudra and returning back, near Somasamudra cross, the driver of a lorry without using the dipper, drove the lorry in a rash and negligent manner. In view of that the driver of the auto rickshaw took the vehicle to extreme left side of the road. In view of that the auto rickshaw he fell down and he sustained grievous injuries all over the body. After the accident, he took treatment in the Kurugodu Government Hospital. Thereafter, he has taken treatment in a private hospital. The owner of the vehicle was paying him salary of Rs.3,000/- p.m. At the time of accident, he was aged about 27 years. The accident occurred during the course and employment. In view of the injuries sustained and suffering undergone, he cannot do the work of a driver. The vehicle being insured with the United India Insurance Company Limited, both the owner as well as the insurer of the vehicle are liable to compensate the claimant.

4. In response to the notice issued by the WCC, the owner of the vehicle entered appearance and filed written statement admitting that the claimant was working as a driver in the auto rickshaw belonging to him and he was paying salary of Rs.3,000/- p.m. The accident occurred during the course and out of employment. The insurance policy was in force as on the date of accident. Hence, the Insurance Company is liable to compensate the claimant.

5. The Insurance Company in their written statement denied the entire averments made in the claim petition and also contended that the driver of the auto rickshaw was not holding valid and effective driving license as on the date of accident and violated the conditions of the policy. Hence the Insurance Company is not liable to compensate the claimant and sought for dismissal of the claim petition.

6. On the basis of pleadings of the parties, the WCC has framed necessary issues.

7. The claimant in order to prove his case got examined himself as P.W.1 and also examined the doctor who treated him as P.W.2 and got marked the documents as Ex.P1 to Ex.P4. On behalf of the respondents, one Ramesh Babu, an officer of the Insurance Company was examined as R.W.1 and got marked the documents as Ex.R1 and Ex.R2.

8. The WCC, after appreciating the oral and documentary evidence let in by the parties and taking into consideration the copy of the complaint, wound certificate, disability certificate, Learners License issued by the competent officer, held that the claimant while working as driver in the auto rickshaw has sustained injuries and the insurance policy covers the risk of the said vehicle; and that the accident occurred during the course and out of employment. Hence, he is entitled for compensation.

9. With regard to quantum of compensation is concerned, in the accident, the claimant has sustained fracture of metatarsal bone and talonavicular bone. He has also sustained abrasion over the knee joint, injury to right forearm and right foot. He was conservatively treated. The doctor who treated the claimant has assessed the disability to an extent of 30% in view of mal-union of the fractured portion and restricted movement of foot. The WCC taking the income of the claimant as Rs.3,000/- p.m., taking 60% thereof, considering the loss of earning capacity to an extent of 20% and applying the relevant factor 213.57 having regard to the age of the claimant as 27 years, awarded a sum of Rs.76,885/- with interest at the rate of 12% p.a. Since the insurance policy was in force as on the date of accident, liability was fastened on the Insurance Company to compensate the claimant. The Insurance Company being aggrieved by the said judgment and order filed this appeal.

10. Sri.N.R.Kuppellur, learned counsel appearing for the appellant contended that the WCC without considering the contentions raised with regard to the validity of the driving license, passed the judgment and order which is contrary to law. While elaborating his contention, he contended that the driver of the auto rickshaw was having Learners License from 18-09-2001 to 17-03-2002, once again he got it renewed from 21-01-2003 to 21-07-2003. The accident occurred on 28-02-2003. From the above, it is clear that he was having only Learners License as on the date of accident and he cannot drive the passenger auto rickshaw. Hence, the judgment and order passed by the WCC fastening liability on the Insurance Company is contrary to law.

11. On the other hand, learned counsel appearing for the first respondent argued in support of the judgment and order passed by the WCC and sought for dismissal of the appeal.

12. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the impugned judgment and order.

13. The points that arise for consideration in this appeal are:

(a) Whether the person holding Learners License can drive the passenger auto rickshaw? and

(b) Whether the Insurance Company is liable to compensate the claimant?

14. The records clearly disclose that the claimant was working as a driver in the auto rickshaw belonging to the second respondent herein. On 28-02-2003, as per the instructions of the owner of the auto rickshaw, while he was carrying the passengers, the vehicle met with an accident, as a result of which, he sustained injuries, hence he sought for compensation. The Insurance Company contended that as on the date of accident, the driver of the said auto rickshaw was having only Learners License and he cannot drive the passenger auto rickshaw. There is specific prohibition under the insurance policy issued. Though specific contention was taken by the Insurance Company and an officer of the company has been examined and Learners License was produced as Ex.R2 to prove that the claimant/driver of the auto rickshaw was not having valid and effective driving license to drive the passenger auto rickshaw, the WCC without considering the same has proceeded to pass the judgment and order, which is contrary to law. One of the clauses imposed in the insurance policy reads as under:

Persons or classes of persons entitled to drive:

Driver s clause: Persons or classes of persons entitled to drive Any person including the insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured hereunder, at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that a person holding an effective and valid Learners License to drive the category of vehicle insured hereunder may also drive the vehicle when not used for transport of passengers at the time of accident and that the person satisfies the requirements of Rule 3 of Motor Vehicle Rule, 1989.

15. Reading of the condition imposed in the insurance policy clearly disclose that a person holding the effective and valid Learners License to drive a category of the vehicle insured thereunder may also drive the vehicle when not used for transport of passengers at the time of accident. In the instant case, Ex.P4 produced by the claimant clearly disclose that as on the date of accident, the driver of auto rickshaw was having Learners License. As per the conditions imposed in the insurance policy he cannot drive the passenger auto. On the other hand, the claimant has admitted in the claim petition that as on the date of accident i.e. on 28-02-2003, as per the instructions of owner of the vehicle, he had carried the passengers to Somasamudra and while returning back, the vehicle met with an accident. Hence it is clear that a person holding the Learners License cannot drive the passenger auto rickshaw. The WCC lost sight of Ex.P4 produced by the claimant and also Ex.R2 produced by the Insurance Company. There is violation of conditions of the policy, wherein, as per the conditions of the policy, the owner has to entrust the vehicle to a person holding valid and effective driving license. In the instant case, the owner has entrusted the vehicle to a person having Learners License and he cannot drive the passenger auto. Hence, the judgment and order passed by the WCC fastening liability on the Insurance Company to compensate the claimant is contrary to law. Hence the same cannot be sustainable in the eye of law. Accordingly, I pass the following:

ORDER

The appeal is allowed. The judgment and order dated 23-01-2008 made in CWC:WCA:CR:NO.152/2003 passed by the Labour Officer and Commissioner for Workmen s Compensation, Bellary is hereby set aside insofar as liability fastened on the Insurance Company is concerned and the Insurance Company is exonerated from its liability. However, it is open to the claimant to enforce the judgment and order against the owner of the vehicle.

The amount in deposit is directed to be refunded to the appellant-Insurance Company.


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