NATIONAL INSURANCE CO LTD Vs. PANIBUDI CHULIA

JUDGEMENT

(1.) This appeal arises out of an Award passed by the Commissioner for Workmen's Compensation. The Full Bench is called upon to answer the reference made by the Hon'ble Single Judge on the following issue: Whether in absence of a provision alike Section 149 of the M.V. Act, 1988 the Commissioner for Workmen's Compensation can be directed to determine the issue between the insurer and the insured regarding allegation of violation of policy conditions and to proceed for recovery of the amount so paid to the third party from the insured.

(2.) Before answering the reference it is necessary to refer to the facts and law involved in the case. Claimants are the legal heirs of deceased Sananda Chulia. Said Sananda Chulia was working as a driver under one Bhimsen Behera in his trekker bearing registration No. OR-15-B-0914. On 12.1.1997 while the deceased was driving the aforesaid vehicle, met with an accident near Atabira, as a result of which he sustained bodily injuries and ultimately succumbed to the injuries. Owner of he offending vehicle having refused to pay compensation, the claimants approached the Commissioner for Workmen's Compensation, Sambalpur Division in W.C. Case No. 4 of 1997. Before the Commissioner for Workmen's Compensation the owner of the vehicle filed written statement admitting employment of the deceased under him as a driver in the aforesaid vehicle, the accident and the resultant injuries as well as death arising out of the accident. The appellant before this Court filed a separate written statement admitting the fact that the vehicle had been insured with it. However, the appellant resisted the claim on the ground that the deceased did not have a valid driving licence on the date of accident and therefore the insurance company cannot be saddled with the liability. The Commissioner, Workmen's Compensation, however, on examination of the evidence available on record held that the deceased had a valid driving licence and accordingly saddled the liability on the appellant.

(3.) In appeal before this Court the very same ground was taken by the appellant. Since the existence of a valid policy was admitted, learned Counsel for the appellant argued before the Hon'ble Single Judge that in view of a decision of this Court rendered by a Division Bench in a Letter Patent Appeal in the case of Oriental Insurance Co. Ltd. v Akadasi Das and Anr., reported in 96(2003) CLT 126 the matter should be remitted back to the Commissioner for determining the issue as to whether any of the conditions in the policy had been violated by the insured. It was further argued that in the event it is found that there is any violation of the conditions stipulated in the policy by the insured, even if compensation is directed to be paid by the insurer, the same should be reimbursed by the insured to the insurer. The decision of the Apex Court in the case of New India Assurance Co. Shimla v Kamla and Ors. reported in AIR 2001 S.C. 1419 was also brought to the notice of the Hon'ble Single Judge. The Hon'ble Single Judge in the referral order also referred to another decision of the Apex Court in the case of United India Insurance Company Ltd. v. Lehru and Ors. reported in AIR 2003 SC 1292 and on examination of Section 149 of the Motor Vehicles Act, 1988 made reference to a Larger Bench and accordingly this matter has come before this Bench to answer the reference.