1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1099 OF 2008 New India Assurance Company Limited, having its Head and Registered Office at New India Assurance Building, 87, M.G.Marg, Fort, Mumbai, Branch at Dhule, Divisional Office at Aurangabad. Appellant Versus 1 Ashok Dayaram Salunkhe, age: 50 years, Occ: Nil; 2 Sau.Vimal Ashok Salunkhe, age: 47 years, Occ: Household work; 3 Satish Ashok Salunkhe, age: 20 years, Occ: Education; All R/o Shevali, Tal. Sakri, District Dhule. Respondents Respondents 4 Bharat Ashok Ambedkar Mr.S.L.Kulkarni, advocate for the appellant. Mr.C.R.Deshpande, advocate for Respondents No.1 to 3. As per Registrar’s order dated 08.09.2009, appeal is dismissed as against Respondent No.4. CORAM: R.M.BORDE, J. DATE : 08 th February, 2010. ORAL JUDGMENT: 1 This is an appeal by appellant New India Assurance Company 2 – original opponent no. no.2 raising exception to the judgment and award passed by Commissioner for Workmen’s Compensation & Judge, Labour Court, Dhule on 27.08.2007 in Application (WCA) No.111/2005. 2 Respondents No.1 to 3 – original claimants preferred an application claiming compensation on account of death of one Ravindra alias Bhaiyya Ashok Salunkhe. It is claimed by claimants that deceased was workman employed by Respondent No.4 – original opponent no.1 in the application. At the relevant time, deceased was serving as driver to drive vehicle i.e. Mahindra Jeep bearing Registration No.MH-15-K-5575 belonging to owner i.e. Respondent No.4. Claimants are solely dependent upon the earnings of deceased. It is contended that on 18.11.2004, deceased was on duty and while he was returning back from Nadiyad (Gujarat) to Shevali, Taluka Sakri, he met with vehicle accident near village Kavthe on Surat- Nagpur National Highway. The vehicle in question dashed against a tree located by the side of road and as a result of which deceased-driver succumbed to the injuries. It is contended that deceased met with death during the course of employment and as such, registered owner of the vehicle is liable to pay compensation. Opponent No.2 – appellant herein, being the Insurance Company with whom vehicle in question was insured by the owner under valid policy for the period from 27.12.2003 to 26.12.2004, is liable to meet the liability. It is contended that both the opponents i.e. owner of the vehicle as well as insurance company are jointly and severally liable to pay compensation to the claimants. 3 The owner of vehicle did not contest the claim, whereas, opponent no.2 – appellant herein contested the application by filing written statement at Exhibit-C-5. It is claimed that application is not tenable in 3 present form. The claim is also resisted on the ground that compensation claimed is at higher side considering the monthly income, as stated by claimants in the claim petition. It is also contended that claimants have not filed driving licence of deceased on record and they should be put to strict proof as regards the fact that deceased was having valid driving licence on the date of occurrence of accident. 4 Considering contentions raised by parties and after scrutinising evidence placed on record, the Commissioner for Workmen’s Compensation, in view of the judgment and award dated 27.08.2007, was pleased to direct opponents i.e. appellant herein and Respondent No.4 – original opponent no.1 to deposit jointly and severally with the Commissioner amount of compensation to the tune of Rs.1,96,623/- along with interest at the rate of 7.5% p.a. from the date of order till realisation of amount of compensation. 5 Opponent No.2 – Insurance Company has preferred instant appeal raising exception to the judgment and award passed by Commissioner for Workmen’s Compensation. 6 It is contended by learned Counsel for appellant that the claimants have miserably failed to establish relationship of deceased workman with the employer. It is contended that it has not been established by claimants that deceased was serving as employee with opponent no.1 i.e. owner of the vehicle and as such, insurance company is not liable to meet the claim. It is contended that it is the primary responsibility of claimants to first of all establish relationship of employee and employer so as to secure compensation under the provisions of Workmen’s Compensation Act. My attention has been invited to the deposition of witness no.1 for claimants – 4 Vimlabai Ashok Salunkhe. It is stated by the witness in her deposition that her son Ravindra was employed by opponent no.1 owner of the vehicle. It is specifically deposed by the witness that her son was employed by opponent no.1 to drive vehicle bearing Registration No.MH-15-K-5575. It is further claimed by witness that on 18.11.2004, while her son was engaged as driver to drive the vehicle and he was proceeding from Gujarat State, near village Kavathe on Surat-Nagpur National Highway, the vehicle driven by her son dashed against a tree and he died as a result of said accident. It is also specifically deposed by her that accident had occurred while her son was in employment. 7 My attention is invited to the statement made in the cross- examination of the witness wherein the witness has admitted that: “It is true that he was working as driver with Prajapita Brahmakumari Ashram. It is true to say that salary, which was being received, was paid by those who run the Ashram.” She has further stated that she is not in possession of any salary certificate issued by the Ashram. Pointing out admissions given in the cross examination, it is contended that at the relevant time, deceased was employed by the Organisation/Institution, namely Prajapita Brahmakumari Ashram. It is thus contended that claimants have failed to establish relationship of deceased as workman with opponent no.1 employer. 8 I have perused deposition of witness no.1. The whole of deposition is required to be read harmoniously and only a sentence in isolation appearing in the cross examination cannot be taken away to arrive at a conclusion that there exists no relationship of employee and employer 5 between deceased and owner of the vehicle. As stated earlier, in the examination-in-chief itself, the witness has stated that her deceased son was employed to drive vehicle bearing Registration No.MH-15-K-5575 and was serving as driver with opponent no.1. It is also further deposed by the witness that her son was on duty on 18.11.2004 i.e. on the date of accident. There are no specific details in the cross examination as to when deceased was serving with the organisation/institution namely Prajapita Brahmakumari Ashram. It is vaguely admitted in the cross examination that he (deceased) was serving with Ashram and salary which he was securing was disbursed by the Ashram. The period of employment has not been stated in the cross examination nor it was clarified that on the date of occurrence of accident, deceased was in the employment of organisation/institution. The statement appearing in cross examination has to be appreciated on the basis of defence raised by Insurance Company. The Insurance Company has not specifically denied relationship of employee and employer between deceased and owner of vehicle, whereas, claim petition is opposed on some other ground. In the absence of any specific defence in that regard, a vague statement, taken in isolation, cannot be read against claimants for the purposes of ousting liability of insurance. In order to substantiate its claim the Insurance Company has to specifically raise defence and same is required to be substantiated. 9 In the facts and circumstances of this case, I am of the opinion that the Insurance Company has failed to substantiate their contentions in the absence of their being any averment/defence raised in the written statement in that regard. 10 Shri C.R.Deshpande, learned Counsel appearing for Respondents – original claimants has invited my attention to a judgment in 6 the matter of Ramkrishna Reddy Vs. Manager, H.M.T. Ltd. and another, reported in 2003 ACJ 105. Paragraphs no.19 and 19.1 are relevant for consideration, those are: 19 We may also at this stage refer to the pernicious habit of some branches of insurance companies in filing stereotyped written statements denying all and everything. They routinely deny the Insurance, then alternatively plead that even if there was an Insurance, there was a breach of terms of the policy, that driver did not have a valid driving licence, and lastly there was no negligence on the part of driver of the insured vehicle. They do not brother to verify whether the insurance policy covered the risk or not and whether driver had a licence or not. We recognise that insurers are sometimes handicapped for want of full information, while giving instructions to their Counsel, and therefore the objections may be general in nature. We are also conscious that we cannot frown upon a party taking all permissible defences. But, applications for motor accident claims are not to be treated by insurers as normal private adversary litigation, where technical contentions can abound in pleadings and the sole intention is winning the lis. Under the policies of Insurance, the insurers discharge statutory obligations towards third parties. They should do so keeping in view the object and spirit of the Act, and the position of hapless victims of motor accidents. Insurers should balance their concern to safeguard its financial interest, with their obligations as instruments of social justice under the Motor Vehicles Act. 19.1 The claimants are not litigants by choice, but are constrained to approach the Tribunal, because of the death of breadwinner or injury to self, and because the owner and insurer of the vehicle involved, fail to pay the compensation. The insurer should bear in mind that the claimants are also handicapped in obtaining particulars of the insurance policy held by owner or driving licence held by the driver of the vehicle, and they solely depend 7 upon the police for these particulars. The insurer should therefore verify whether there was any Insurance policy or not, whether the insured was covered by insurance policy in regard to the claim or not, and whether the driver had a licence or not before filing its statement of objections and narrow down the area of controversy if the insurer were to file `play it safe’ written statements, without verifying these aspects and mechanically denying all petition averments, the trial gets delayed and the claimants are put to misery and unjustly kept away from the direly needed compensation. It is time that insurers get rid of “Deny Everything and Await the Award Syndrome” and become responsible and responsive opponents in motor accident claims. We make it clear that the above observations are intended only to those officers of Insurance companies who refuse to recognise their statutory obligations to third parties, under the insurance policies issued to the insured.” 11 For the reasons recorded above, I am of the opinion that appellant-Insurance Company has failed to make out a case for purposes of ousting their liability to reimburse the claimants. No other issue arises for consideration in the matter. In this view of the matter, there is no merit in the appeal and same deserves to be dismissed. 12 In the result, appeal is dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs. Pending Civil Application does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/fa109908