NEW INDIA ASSURANCE COMPANY LTD. Vs. SOFIYA NAWAS

JUDGEMENT

(1.) THIS appeal is by the insurer against an order passed by the Workmen's Compensation Commissioner. The driver of an autorickshaw died as a result of an accident in which that autorickshaw collided with a car. His legal representatives applied for compensation on the allegation that the deceased was employed by the first opposite party. That person is the insured registered owner of the vehicle. He did not appear and contest the proceedings. The insurer contended (1) that the vehicle did not belong, in fact, to the registered owner at the point of the time of accident and (2) that the deceased did not possess a valid licence in terms of the Motor Vehicles Act and Rules to drive a commercial vehicle. These two issues were found against the insurer and an order for compensation has been issued with liability to pay interest. The insurer is directed to pay. Hence, this appeal.

(2.) AS regards the plea that there was no employer - employee relationship between the registered owner of the vehicle and the deceased, we have the testimony of the mother of the deceased. There is no contra evidence. The fact that the vehicle was, at the relevant time, driven by the deceased cannot be disputed. It is a commercial vehicle. The registered owner does not appear to say that he had not authorised that person to drive the vehicle. On the totality of facts and circumstances, the finding of fact by the Commissioner cannot be set aside since we do not find any perversity in the appreciation of evidence. No substantial question of law arises. Not only that, we see that the insurer at the first instance did not have a plea that the owner was somebody else. It was later, by an affidavit and application that such pleading was attempted to be brought on record, that too, after production of Ext. A1 by the applicants. In fact, the insurer relies on Ext. A1 to make an attempt to point out that it is the wife of the deceased who owned the vehicle and she is shown to have obtained the vehicle under interim custody from the police. We have looked into Ext. A1 which is a draft charge sheet by the police. We are not persuaded in view of the provisions of the Code of Criminal Procedure and the Evidence Act to rely on it as material evidence to hold that the wife of the deceased was the owner of the vehicle. It is pointed out on behalf of the insurer that the wife of the deceased had taken interim custody of the vehicle from the police. But the learned counsel for the applicants points out, quite rightly, that the vehicle having been granted on interim custody on the date following the accident, in the common course of human conduct it is impossible to assume that one would have gone to the police station or would have acted through an agent and obtained custody of the vehicle on the day succeeding the demise of her husband. In this view of the matter also, we do not find any ground to interfere in that regard. Having found that the owner of the vehicle is the first opposite party before the Commissioner, the question now is whether there was any violation of policy condition. The materials made available show only that the deceased had licence to drive a three wheeler. It does not contain any endorsement amounting to authorisation to drive a commercial vehicle. P.W.1 has clearly stated that the deceased was driving the authorickshaw carrying passengers. The insurer's Divisional Manager has tendered evidence as D.W.1 to the effect that the driver did not possess a badge in terms of the law, authorising him to drive commercial vehicle. In that view of the matter, we are clear in our mind that appreciation of evidence on that ground does not stand. The vehicle was driven by a person who did not have authorisation to drive commercial vehicle, thereby there is violation of the policy condition. The third question now raised is regarding the payment of interest from the date of accident. The liability to pay interest runs from the date of accident as found in the judgment dated 22.8.2011 in MFA. No. 59 of 2011 and in the judgment dated 12.6.2012 in MFA. No. 242 of 2009. We respectfully follow that and repel that contention.