IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (WCA) No. 101 of 2004. Reserved on : 17.7.2008. Decided on: 4.9.2008. __________________________________________________ National Insurance Company Ltd. … Appellant. Versus Shri Kishan Singh and another. … Respondents ___________________________________________________________ Coram: Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellant : Ms. Devyani Sharma, Advocate. For Respondent No. 1 : Mr. Dibender Ghosh, Advocate. For Respondent No. 2. : Mr. Romesh Verma, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This F.A.O. (WCA) has been filed against the award dated 17.10.2002 passed by the learned Commissioner, Workmen’s Compensation (SDM), Nalagarh, District Solan, H.P. in case No. 3/2001. The brief facts necessary for the adjudication of this appeal are that one Shri Subhash Chand, who met with an accident on 6.11.1998, filed an application before the learned Commissioner on 31.5.1999. Shri Subhash Chand died during the pendency of the application. The respondent/claimant-Kishan Singh, father of Shri Subhash Chand, hereinafter referred to as the claimant for convenience sake, moved an application before the learned 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Commissioner for bringing on record the legal representatives of Shri Subhash Chand. The application preferred by Shri Subhash Chand was dismissed by the learned Commissioner, Workmen Compensation on 15.1.2001. However, permission was granted by the learned Commissioner to file a fresh application. Consequently, the claimant filed an application before the learned Commissioner, Workmen Compensation on 1.2.2001. It was registered as case No. 3/2001. The claimant has claimed a sum of Rs. 4 lacs towards compensation after the death of his son. It is averred in the application that he was dependent on the income of deceased Subhash Chand and as per the averment contained in the application, Subhash Chand had suffered injuries up to the extent of 90% at the time of accident dated 6.11.1998. The appellant and the respondent/owner, hereinafter referred to as the owner, filed separate replies to the application. The principal stand of the appellant and the owner was that fresh application was not maintainable after the dismissal of the earlier application preferred by Subhash Chand on 15.1.2001. The appellant has also averred in the reply that Subhash Chand was not having any driving license and he was not entitled to drive the tempo. The owner has admitted that Subhash Chand was employed by him. The accident dated 6.11.1998 is also admitted by him. The owner has also taken a stand before the learned Commissioner that Subhash Chand had died due to HIV - AIDS and his death was not caused by the injuries received by him in the accident dated 6.11.1998. The learned Commissioner framed the following issues on 18.8.2001: 1. Whether the deceased workman sustained injuries during the course of his employment and later on died on account of such injuries, as alleged? 3 … OPA 2. Whether the applicant is entitled for compensation? If so, to what amount and from whom? … OPA 3. Whether the application is not maintainable? … OPR 4. Whether the deceased workman was not having valid and effective driving license? … OPR-2. 5. Relief. The learned Commissioner awarded a sum of Rs. 2,03,850/- on 17.10.2002. Ms. Devyani Sharma has strenuously argued that there was breach of terms and conditions of the policy and thus, the Insurance Company is not liable to indemnify the owner. She further contended that Subhash Chand was not holding valid driving license. She also contended that Subhash Chand did not die due to injuries received in the accident, however, he died due to AIDS at PGI, Chandigarh. Mr. Dibender Ghosh and Mr. Romesh Verma, Advocates have supported the award dated 17.10.2002. I have heard the parties and have perused the record carefully. What emerges from the pleadings of the parties and the evidence brought on record is that Subhash Chand was employed by the owner as a driver and he died during the course of his employment in an accident on 6.11.1998. He received multiple injuries. It is specifically stated in the application that his son’s 4 disability was assessed up to the extent of 90%. The owner has not denied the factum of the accident dated 6.11.1998. The claimant has appeared as PW-1. He has stated in his examination-in-chief that his son was getting salary at the rate of Rs. 2500/- per month and he was also getting Rs. 30/- as daily allowance. According to him, the age of the deceased was 30 to 32 years. He has deposed that he was dependent on the income of Subhash Chand. He has also admitted that he owns 30 to 40 bighas of land. However, he has denied that his son died due to AIDS at PGI, Chandigarh. PW-2 - Prem Chand has supported the version of the claimant. He has stated that deceased Subhash Chand was getting Rs. 1600/- per month and daily allowances of Rs. 30/- from his employer. The owner has appeared as RW-1. He has deposed in his examination-in-chief that the claimant owns 40 to 50 bighas of land. He has further stated that Subhash Chand died of AIDS. He has produced on record insurance policy Ext.RW1/A. He has also produced on record copy of driving license Ext.RW1/B. Gurdas Singh has appeared as RW-2. He has deposed that Subhash Chand died of AIDS. RW-3 is Partap Singh. He has deposed that Subhash Chand and his wife were suffering from AIDS. RW-4 is the Branch Manager of National Insurance Company, Parwanoo. He has deposed that the tempo was insured vide policy No. 421104/97/6304362 w.e.f. 9.2.1998 to 8.2.1999. He has produced on record and proved policy Ext. RW4/A. He has admitted that the owner had informed the Company about the accident and the owner had also produced driving license 5 Ext.RW1/B. He further deposed that Ext.RW1/B was got verified from Raipur Office. The Surveyor sent the report Ext.RW4/C, according to which the license in question was not issued by the Registration & Licensing Authority, Raipur. In his cross- examination, it is admitted that in mark B complete address of Subhash Chand is not given. He also stated in his cross- examination that he did not recognize the signatures of the Licensing Authority. He has also admitted that Ext.RW4/C is not signed by Subhash Chand. Subhash Chand met with an accident on 6.11.1998. He filed an application for compensation on 31.5.1999. He died in PGI, Chandigarh during the pendency of the application. The learned Commissioner, as noticed above, suggested the claimant to file a fresh application. He has made specific averment in the application that he was dependent on the income of Subhash Chand. This averment has not been denied by the owner as well as by the appellant/Insurance Company. It is settled law by now that the facts admitted need not be proved as per Section 58 of the Indian Evidence Act, 1872. As per the averment contained in the application, the claimant’s son was getting Rs. 1600/- per month and Rs. 25/- per day as daily allowance and his total wages were Rs. 2350/- per month. PW-1 in his examination-in-chief has deposed that his son was getting Rs. 2500/- as salary and Rs. 30/- per day as allowances. PW-2 - Prem Chand has also stated that Subhash Chand was getting Rs. 1600/- per month and emphasized that he was being paid daily wages at the rate of Rs. 30/-. The learned Commissioner has assessed the wages of Subhash Chand at Rs. 6 2000/- per month and applied age factor 203.5 at the age of 32 years. This finding of the learned Commissioner is affirmed. The owner has produced on record and proved driving license Ext.RW1/B. The Insurance Company has relied upon the certificate Ext. RW4/C. The Insurance Company has neither produced any Officer from the concerned RTO, Raipur, who has issued Ext.RW4/C, nor has produced the Surveyor, who has sent the report to the Company. It is settled law that it is for the Insurance Company to prove the breach of terms of the policy. Their Lordships of the Hon’ble Supreme Court in Narchinva V. Kamat and another Vs. Alfredo Antonio Doe Martins and others, AIR 1985 Supreme Court 1281 have held that there was breach of term of policy. The burden of proof is on the Company. Their Lordship’s have held as under: “To sum up the insurance company failed to prove that there was a breach of the term of the contract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance.” In the present case though Ext.RW4/C, as noticed above, has been produced by RW4-Branch Manager. However, the person, who has issued Ext.RW4/C, has not been examined. The learned Commissioner has rightly relied upon Ext.RW1/B and discarded Ext.RW4/C. This is not disputed by the parties that the tempo in question was insured with the Appellant’s Company and 7 the accident had taken place on 6.11.1998 during the validity of the insurance policy Ext.RW4/B. Learned Single Judge of Jammu & Kashmir High Court in United India Insurance Co. Ltd. Vs. Noora, 2007 A.C.J. 64, has held that there is no requirement under the provisions of Workmen’s Compensation Act, 1923 that if a driver is employed, he should possess valid license as is required in terms of the mandate of the Motor Vehicles Act, 1939 The learned Single Judge has held as under: “The provisions of Workmen’s Compensation Act nowhere prescribe that if a driver is employed he should possess valid licence as is required in terms of the mandate of Motor Vehicles Act, 1939. This view is fortified by the judgment of Hon’ble High Court of Karnataka titled Oriental Insurance Co. Ltd. V. Hazira Begum, 1995 ACJ 236 (Karnataka), it is profitable to reproduce para 9 of the judgment herein: “(9) A scan of various decisions of the High Court will disclose that where a workman was engaged in the employer’s business and who was doing the very thing he was employed to do, then the mere fact that he was not acting strictly by the letter of law will not make the accident any the less ‘arising out of and in the course of employment’. It follows, therefore, the owner and insurance company are both liable in such an event.” The compensation is to be paid to the workman in terms of the Workmen’s Compensation Act. Section 2 (1) (n) defines workman. Section 3 mandates that employer is liable and section 4 quantifies the compensation payable.” Ms. Devyani Sharma strenuously argued that Subhash Chand died due to AIDS in PGI, Chandigarh. The Insurance Company has not led any evidence to support this plea. 8 It was necessary for the appellant/Insurance Company to lead cogent and convincing evidence by summoning the record from PGI, Chandigarh. The owner has not denied the accident dated 6.11.1998. He has informed the Insurance Company, as admitted by RW-4 himself. The accident took place on 6.11.1998. His permanent disability, as noticed above, was assessed at 90%. He died in PGI, Chandigarh on 1.6.2000. PW-1 has stated that his son did not die of AIDS and he died due to the injuries received by him in an accident on 6.11.1998. PW-2 has also supported his version. RW-1 though has stated that Subhash Chand had died due to AIDS but he has also not proved this fact. RWs 2 and 3 though have stated that Subhash Chand died of AIDS but they have also not supported the version by bringing on record any documentary evidence. Ms. Devyani Sharma lastly argued that the permission was accorded by the learned Commissioner, Workmen Compensation on 15.1.2001 to the claimant to bring the legal representatives on record. However, it is clear from the order dated 15.1.2001 that the learned Commissioner had permitted to file a fresh application. It is settled law by now that only dependent can file an application seeking compensation under the Workmens’ Compensation Act, 1923 as defined in Section 2 (d). Thus, it was not necessary for the claimant to file an application on behalf of the legal representatives. The claimant has led overwhelming evidence to substantiate his plea that he was dependent on Subhash Chand. In B.M. Habeebullah Marciar Vs. Periaswami and others, 1977 A.C.J. 517, Hon’ble Full Bench of Madras High Court has held that the benefit under the Workmen’s Compensation Act, 9 1923 has been provided to the workman himself and his dependent and to no others. Their Lordships have held as under: “A look at this definition of the term ‘dependent’ would show that it is not intended to benefit all the heirs of a deceased workman, but to embrace only those relations who, to some extent, depend upon him for their daily necessities, so much so that even some of his nearest and dearest ones, viz., sons who have attained majority, married daughters, and an illegitimate daughters, whether married or unmarried are excluded if they were not dependent on the worker’s earnings, wholly or in part. Kinship coupled with dependency, is thus made the sole criterion for a person to fall within the ambit of the definition. And if that be so, there is no reason why the benefit of the Act should go to heirs other than ‘dependents’ and section 9 coupled with the definition in clause (n) of sub-section (1) of section 2 be given a restricted meaning in derogation of the language used by the legislature. To hold otherwise and to extend the benefit of the Act to the legal representatives of the deceased workman or of the dependents would be to burden the employer with liability not flowing from the subject which the Act sought to achieve and to pass the benefit provided by the Act to persons altogether outside the class contemplated by it.” In view of the observations made hereinabove, there is no merit in this appeal and the same is dismissed. No costs. (Rajiv Sharma), J. September 4, 2008. (cr)