IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD MONDAY, THE NINETH (9TH) DAY OF AUGUST, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1286 of 2008 Between: ICICI Lombard General Insurance Co.Ltd.,rep.by its Legal Manager, Hyderabad … Appellant And: K. Ramalakshmi & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1286 of 2008 JUDGMENT: This appeal is directed against the order dated 08.09.2008 in W.C.No.3 of 2008 on the file of the Commissioner, Workmen’s Compensation Act and Assistant Commissioner of Labour, Circle-IV, Hyderabad, wherein, the claim of the respondents 1 and 2 herein, was allowed awarding compensation of Rs.2,88, 320/- together with stamp of Rs.577/- and Advocate fee of Rs.500/-, totaling Rs.2,89,397/-. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. The respondents 1 and 2 herein filed claim application seeking compensation of Rs.6,00,000/- on account of death of K.Simmaiah, husband of the first claimant and son of 2nd claimant. According to the claimants, the deceased was employed by the 3rd respondent herein i.e., opposite Party No.1 as a labourer on the DCM lorry bearing No.AP 13 V 6977 and that on 18.12.2007 while the deceased was on duty as a labourer on the said lorry and was loading the earth, the site supervisor started DCM lorry and took reverse, as a result of which, the lorry dashed against the deceased labourer and he died on the spot. The claimants further pleaded that the deceased was earning wages of Rs.4,000/- per month and was aged 32 years at the time of accident. A case in Cr.No.475 of 2007 was registered by Alwal PS against the driver. 4. The 3rd respondent herein-opposite Party No.1 remained exparte. The appellant herein-2nd opposite party-insurer filed a counter, denying their liability. During enquiry, first claimant was examined as AW.1 and Exs.A.1 to A.9 were marked on their behalf. The Legal Manager of the insurer was examined as RW.1 and Exs.B.1 to B.5 were marked on their behalf. 5. On a consideration of the evidence available on record, the learned Commissioner held that the deceased was an employee of 3rd respondent herein and was engaged to work on the DCM lorry AP 13 V 6977 and he died while on duty on account of the rash and negligent driving of the lorry by its driver. The learned Commissioner taking the wages of the deceased at Rs.2828.75 being minimum wages as per G.O.Ms.No.83 dated 22.11.2006 and applying the multiplier factor 203.85 suitable to the age of the deceased, who was aged 32 years, estimated the compensation payable at Rs.2,83,320/- and fastened the liability for payment on both the owner of the vehicle and also insurer. Aggrieved by the said award, the insurer preferred the present appeal. 6. Learned counsel for the appellant wound contend that the risk of the employee is not covered when a Supervisor without any licence drove the vehicle. 7. Learned counsel for the respondents 1 and 2/applicants would on the other hand contend that the deceased admittedly being an employee and having met with the accident during the course of such employment and as the risk in respect of the employee is also covered by the policy, the insurance company cannot escape from its liability to pay the compensation on the ground that at the time of the accident, the vehicle was driven by a person, not having driving licence, especially, when the said violation of the terms and conditions of the policy, if any is not shown to be a conscious violation and to the knowledge of the owner of the vehicle. 8. It is not disputed that the deceased was employed as a labourer for loading and unloading of the earth in the DCM van bearing No.AP 13 V 6977 belonging to the 3rd respondent and the said vehicle was insured with the appellant/insurer. It is also not disputed that the deceased died on account of the accident, which occurred in the course of such employment on 18.12.2007 while the deceased was loading the earth into the lorry. The only contention raised by the appellant/insurer is that at the time of the accident, the lorry was driven by the site Supervisor, who was not the driver of the vehicle and he had no licence. The learned Commissioner relying upon the decision of the Apex Court in ‘Lal Chand vs. vs. Oriental Insurance Company Ltd., [2007(1) ALD 16 (SC)] and ‘National Insurance Company vs. Swaransingh’ [2004 ACJ 1], up-held the claim as against the appellant-insurer also. 9. It is not disputed that the risk in respect of the employee is covered by the policy. According to the appellant, there has been violation of the terms and conditions of policy by allowing the site Supervisor to drive the vehicle, though, he was not having driving licence. 10. Learned counsel for the appellant referred the decision of the Apex Court in ‘National Insurance Company Ltd. Vs. Kaushalayadevi[1]’, wherein, reference is made to the decision in ‘National Insurance Company vs. Laxmi Narain Dhut’ [2007 (4) Scale 36], in which, it was held that the decision in ‘Swaran singh’s case has no application to the cases other than the third party risk. In the above case, it was observed that the decision in ‘Swaran singh’s case held not applicable in relation to the owner or passenger of a vehicle insured. Learned counsel for the appellant would therefore contend that reliance placed by the learned Commissioner on the decision of the Apex Court in ‘Swaran Singh’ case, wherein it was held that ‘mere absence of fake or invalid licence or disqualification of the driver for driving, are not in themselves defences available to the insurance company’, is misplaced. 11. It is to be noted that the deceased in the present case was neither owner of the vehicle nor passenger, being carried in the vehicle. At the time of the accident, he was on the road and a third party. As he happened to be the labourer engaged for loading work, the claimants approached the Commissioner under Workmen’s Compensation Act. The fact that the lorry was driven by a person, having no driving licence, is therefore of no consequence so far as the claimants are concerned. Assuming that there has been violation of the terms and conditions of the policy on the part of the owner of the vehicle, inasmuch as he allowed the vehicle to be driven by a person, having no driving licence, still, there is nothing on record to show that the said violation of terms and conditions of the policy was to the knowledge of the owner of the vehicle or it was a conscious violation on his part. It is not the case of the appellant that the owner of the vehicle was also present at the spot and he permitted the Supervisor to drive the vehicle. 12. Learned counsel for the respondents/claimants relied upon a decision in ‘Sohan Lal Passi vs. P. Sesh Reddy & others’[2], wherein, a Three Judge bench of the Apex Court in a case, where the bus driver allowed the conductor, who was not duly licensed to drive the bus, held that ‘the insured has engaged licensed driver and had placed the vehicle in his charge and that there was no allegation that the insured was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed and therefore, it cannot be said that the insured had willfully violated the conditions of the policy and hence, the insurance company is not exonerated from the liability’. 13. In the present case also, there is nothing on record to show that the insured had engaged the Supervisor, having no licence to drive the lorry. Admittedly, there was regular driver for the lorry, but at the time of accident, the site Supervisor took steering and reversed the vehicle, causing the accident. It cannot, therefore, be said in the facts and circumstances of the case, that there has been any willful or conscious violation of the terms and conditions of the policy by the insured. In the absence of any evidence to show that the insured has deliberately allowed the vehicle to be driven by a person not duly licensed, the insurance company cannot repudiate its liability. As there has been violation of the terms and conditions of the policy in the sense that the person who drove the vehicle and caused the accident, was not having driving licence, it is open to the appellant-insurer to recover the amount from the insured by enforcing this order in terms of the decision of the Apex Court in “Oriental Insurance Co.Ltd. V. Nanjappan and others[3]’, wherein at para 8 it was held, as follows: “Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur’s case that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount, which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing court shall take assistance of the concerned regional Transport authority. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured.” 14. There is no dispute regarding the age or wages or multiplying factor applied by the learned Commissioner in arriving at the compensation payable to the applicants. In the circumstances, the award passed by the learned Commissioner is confirmed with a liberty to the appellant-insurer to recover the amount from the insured, as stated above. 15. In the result, subject to the above, the appeal is disposed of. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 09.08.2010 bss [1] 2008 (TLS) 46224 [2] 1996 ACJ 1044 [3] 2004 ACJ 721 (SC)