Friday, January 1, 2021

compensation payable to driver under MACT Vs WC - impact of (non-possession of) Driving Licence

In law, when a party to the proceedings finds that the judgement is not found acceptable – they have the legal remedy of appeal in a higher Court.  In many cases, it has been observed that Court tends to interpret rules in favour of victims, more so towards workmen as the laws are intended to be beneficial legislations.



Motor Accident Claims Tribunals were constituted for providing succour to the victims of road accident – there are times when the victim can choose to agitate under different forums.  In the impugned case before the Madurai Bench of Madras High Court  on an appeal preferred by PSU Insurer – decided on  08/03/2011.  This was an appeal filed under Section 30 of the Workmen's Compensation Act 1923, against the award passed in W.C.No.73 of 2006 dated 29.10.2008 on the file of the Learned Commissioner of Workmen Compensation cum Deputy Commissioner of Labour, Thirunelveli.

On 10.3.2004 the ill-fated lorry rammed against a minidor which was driven by the deceased victim and was proceeding for supplying vegetables.  The parents of the deceased filed claim petition claiming sum of Rs.439000/-  Sadly, during the pendency of the claim petition, one of the petitioners (father of the victim too) died in a road traffic accident.   The application was transferred to the file of the Workmen's Compensation Commissioner cum Deputy Commissioner of Labour Thirunelveli. The  owner of the vehicle as well as the employer of the deceased  driver did not contest the claim petition.  The Insurers (who eventually had to pay) resisted the claim on the grounds of : - 

1.There was no relationship of employer and employee between the deceased and the owner of the truck.

2.The deceased being the driver of the minidor   was not having valid and effective driving license to drive the particular type of vehicle at the time of accident.

An official of the  appellant insurance company was examined as RW 1, and during the course of his examination some documents too were marked.  On appraising the evidences both oral and documentary the learned Workmen's Compensation Commissioner cum Deputy Commissioner of Labour, Thirunelveli passed an award of Rs.3,21,865/- after rejecting the contention of the appellant insurance company, and the appellant insurance company was also directed to pay this amount to the first respondent/second claimant within 30 days, failing which the award shall carry interest at the rate of 12% per annum from the date of petition till the date of realisation.

Being aggrieved by the award passed by the Workmen's Compensation Commissioner cum Deputy Commissioner of Labour, Thirunelveli, the appellant insurance company  approached High Court by way of an appeal.  In the appeal the following substantial question of law were formulated : -

1.Whether the Dy Commissioner of Labour is correct in holding that the defences available to the Insurer under Section 149(2) of the Motor Vehicles Act, 1988 cannot be raised in a proceeding under Workmen's Compensation Act, 1923 ?

2.Whether the Learned Workmen's Compensation Commissioner-cum-Deputy Commissioner of Labour, Dindigul is correct in directing the appellants/Insurance Company to pay interest on the award, from the date of the accident, which is in contradiction to Section 4-A(3) of the Workmen's Compensation Act ?

The quintessential aspect of ‘employer employee’ relationship was not questioned as it was a road accident and the victim was driving the vehicle at the ill-fated hour.  The quantum of compensation was also not  disputed by the appellant Insurance Company.  The counsel for Insurer vehemently objected the finding of the Learned Workmen's Compensation Commissioner that the appellant Insurance Company is not entitled to avail the defence under Section 149(2) of the Motor Vehicles Act, 1988 in the proceedings under Workmen's Compensation Act. The second contention was on direction to  pay interest from the date of accident,  in total negation of the principle laid down in Section 4-A(3) of the Workmen's Compensation Act. These two substantial questions of law were to be the  rail on which the discussion of the whole appeal was sought to travel.

The  proviso to Section 149(2)(a)(ii) of Motor Vehicles Act.

"Section 149(2)- No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-

(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-

(ii) a condition excluding driving by an named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving license during the period of disqualification."

The vital and relevant Q was whether the defence available to the insurer under   Section 149 of Motor Vehicles Act 1988 can be availed in the proceedings under Workmen's Compensation Act 1923, particularly in an appeal under Section 30(1) of the Workmen's Compensation Act 1923. 12. It is pertinent to note here that in the term "The Workmen's Compensation", the word "Workmen's" has been substituted by Act 45 of 2009, Section 5 with effect from 18.01.2010 vide S.O.No.101(E) dated 18.01.2010 and now as amended by Act No.45 of 2009 with effect from 18.01.2010, the Act is called as The Employees' Compensation Act 1923.

Section 19 of The Employees' Compensation Act 1923 (Workmen's Compensation Act 1923) reads as follows; "Section 19 - Reference to Commissioners -

(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured as or is not [an employee]) or as to amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by [a Commissioner]." 

In the instant case, before the Commissioner for Workmen's Compensation also, a defence was taken up by the appellant/Insurance Company that the deceased being the driver was not having valid and effective driving license at the time of accident and hence as contemplated under Section 149(2)(a)(ii), the insurer is not at all liable to indemnify the owner of the vehicle as he had violated the policy conditions to that effect. [perhaps instead of seeking remedy under a Sec of MV Act, which is not relevant in WC – Q on whether someone who is not legally authorized to perform a duty can still be termed as employee should have been raised !]

The  driving license of the deceased was not produced before the Learned Commissioner for Workmen's Compensation, either by the appellant/Insurance Company or by the first respondent/claimant. [how fair is the expectation that the Insurer who is not a direct party and who would never have access, should produce DL, if they are to rely on that !!]  The Insurers sent a notice to the owner of the vehicle, who is the respondent in the claim petition to disclose the details of the driving license of the deceased driver. This notice too did not evoke any response from the owner of the vehicle. It was a Q on whether  the Insurance Company is exempted from liability. By way of answer to this question, it was held by the High Court of Jammu and Kashmir that the provisions of Workmen's Compensation Act do not prescribe that if a driver is employed, he should possess a valid license. This finding was given after following the decision reported in 1999 ACJ 236 (Karnataka). Only on the footing of the above cited decision, the Learned Commissioner for Workmen's Compensation has come to the conclusion that the appellant Insurance Company is liable to pay compensation as the Workmen's Compensation Act does not prescribe that if driver is employed, he should possess a valid license.

The  learned counsel for the Insurer  contended that the insurance policy itself was issued as per Section 147 and 149 of the Motor Vehicles Act, which have also been placed in Chapter 11 of the said Act, and therefore, the benefit is claimed under the policy which was issued as per Section 147 of the Motor Vehicles Act. The insurer is at liberty to take the defences available under Section 149(2) of the Motor Vehicles Act. He contended that the appellant/Insurance Company is not precluded from taking the defences available under Section 149(2) of the Motor Vehicles Act in a proceeding under the Employees'(Workmen's) Compensation Act 1923. He has also raised another question that if Chapter 11 of the Motor Vehicles Act 1988, is not made applicable to a proceeding under Employees'(Workmen's) compensation Act, 1923 how the claim petition claiming benefit under the Insurance policy issued by the mandate of the provision of Chapter 11 i.e., under Section 147 of Motor Vehicles Act can be entertained by the Deputy Commissioner of Labour ?

It is clear that the object of both the Acts, viz., the Motor Vehicles Act and Workmen Compensation Act is to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the WC Act is concerned, it is confined to workmen as defined under the Act while the relief provided under Chapters X to XII of the MV Act is available to all the victims of accidents involving a motor vehicle. This conclusion is supported by section 167 of the MV Act, under which, it is open to the claimants either to proceed to claim compensation under the WC Act or under the MV Act.

It was decreed by the Court that upon careful analysis of the evidences both oral and documentary, and considering the submissions made on behalf of both sides- the Court was of the considered view that the conclusion of the Learned Workmen's Compensation Commissioner is unassailable and may be endorsed, as the deceased was not disqualified for holding or obtaining a driving license.  It was stated that appellant insurance company also failed to prove that the deceased was disqualified from holding or obtaining a driving license or never had any license at all !! . The appeal by the Insurer was dismissed and the award of the WC Commissioner, Tirunelveli was confirmed.  There was no order on cost.

Another time, another case, against the likes of the Insurer – though none would voice any opinion against the beneficial piece of legislation – Insurance is a contract between two parties – here the vehicle owner and the Insurer.  In WC – it is not binding and is a supplemental contract between these two parties and should only be decided on the insuring terms and conditions of the contract. There are lessons to be learnt for all those involved – which however, would tend to be overlooked as people are busy in their normal day to day activities.

With regards – S. Sampathkumar

28.11.2020.

  

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