Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 905 of 2018 Appellant :- Shriram General Insurance Co. Ltd. Respondent :- Ajay Pal Singh And 2 Others Counsel for Appellant :- Pawan Kumar Singh Counsel for Respondent :- Amrendra Nath Rai,Sanjay Singh
Hon'ble Vivek Agarwal,J.
1. Heard learned counsel for the petitioner and learned counsel for the respondents.
2. This appeal has been filed by the Insurance Company being aggrieved of award dated 20.12.2017 passed by learned Commissioner under workmen's Compensation Act, 1923 and Deputy Labour Commissioner, Bareilly Region, Bareilly in Case No. 180/ECA/2015 on the ground that deceased Pinku Singh did not die in accident arising out of and in the course of his employment as a driver of truck no. UP-05-0821 rather he was abducted and murdered and thus there being no real or casual connection with his occupation/employment, therefore, learned Commissioner under the Employees Compensation Act grossly erred in deciding issue no. 1 in favour of the claimants.
3. It is further submitted that learned Commissioner over looked this fact that owner/respondent remained absent in the proceedings before the Tribunal and there was nothing on record to establish that deceased was employed as driver of truck no. UA-05-0821 at the relevant time of accident.
4. In the above back drop following substantial questions law has been proposed.
(i) Whether the learned Commissioner had erred in law to extend the purview of 'accident' to cover death cause in murder?
(ii) Whether the duty of the insurer/appellant can be extended so as to cover illegal acts of any third party with no connection with the employment of the deceased?
(iii )Whether in the facts and circumstances of the case, there was any connection between the death ad the employment of the deceased as driver on Truck No. UA-05-0821?
(iv) Whether the findings of the learned Commissioner on the aspect of the death of the deceased arising out of and in the course of his employment as Driver on Truck No UA-05-821 is perverse?
(v) Whether under clause 28(3) of Indian Motor Tariff, Section 13A of the Payment of Wages Act, 1936 and Section 18 of the Minimum Wages Act, 1948 every employer is required to maintain records of employment which ought to hae been produced in the proceedings before the learned Commissioner and the same having been withheld by the claimants and the owner, adverse inference was liable to be drawn against them on the factum of employment and salary?
5. Learned counsel for the claimants on the other hand supports the award and submits that before the learned Tribunal, Insurance Company had filed a detailed written statement wherein they had simply not admitted the contents of para 1 to 10 of the claim petition and had prayed for dismissal of the claim petition.
6. In the additional pleas they had taken a specific stand that they are at present unable to admit whether the owner obtained insurance in respect of the vehicle in question or not or that the alleged insurance was valid at the time of accident. They asked the Tribunal to direct claimants and the owner of the vehicle to produce and prove the policy of insurance and the risk cover.
7. Ironically taking a plea that they are at present unable to admit whether the owner obtained insurance in respect of the vehicle in question or not, it was denied that deceased was employed as driver on the vehicle in question belonging to employer- opposite party. It is submitted that this kind of mechanical written statement with cyclostyled additional pleas is nothing but reflects indifferent attitude of the Insurance Company in dealing with claim on the touch stone of legal provisions and also have not bestowed any consideration as is required in dealing with such a case under a benevolent legislation.
8. After hearing counsel for the parties and going through the record, it is apparent that Insurance Company took plea that deceased was riding as an unauthorized passenger in the vehicle in question in violation of the terms and conditions of the policy. This plea taken in para-4 of additional pleas in the written statement reflects that the Insurance Company admitted the accident. Therefore, they were in position to specifically state that what was the status of the deceased at the time of the accident. It has also come on record that Insurance Company had not examined any witness including their own employee to dispute the factum of issuance of policy and also to dispute the fact that deceased was not authorized to drive truck no. UA-05- 0821 and was not authorized by the owner of the t ruck to take such truck on the fateful day of the accident.
9. Reliance placed by counsel for the Insurance Company on the judgment of Allahahad High Court in case of Oriental Insurance Company Ltd Vs. Poonam Devi (Smt) and others; 2015 (1) TAC 823 is on the issue that driver died due to drowning in a canal when he was trying to fetch water. Coordinate bench of this court held that act of fetching water from a canal or bathing in the canal cannot be said to be an act, which was incidental to the employer of the deceased driver.
10. Similarly reliance is placed on the judgment of the Supreme Court in case of Rita Devi and others Vs. New India Assurance Company Ltd and others, (2005) 5 SCC 113; drawing a specific attention to para-10, it is submitted that the Supreme Court has dealt with issue namely "can a murder be an accident in a given case?" There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The differences between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
11. Facts of the present case are that Pinku Singh was engaged as a driver by Ramesh Kumar, owner of the mini truck No. UA-05-0821 on 28.3.2014.
During course of employment when he was going to Gwalior then his dead body was found under police station Ujhani bye-pass on 29.3.2014. It was alleged that Pinku Singh during course of employment and while performing duties which are incidental to employment was murdered thus claimants are entitled to claim under Workmen's Compensation Act. As the vehicle was duly insured with the present appellant i.e. Sri Ram General Insurance Company Ltd, therefore, claim was filed on refusal of the owner of the truck to pay compensation in terms of the provisions contained in Employees Compensation Act, 1923. It has also come on record that Insurance Company has filed a generalized written statement denying all the contentions and further pleaded that Pinku Singh was not employed as driver on the said mini truck. Insurance Company also disputed jurisdiction of the Tribunal and denied age and income of the deceased. It also denied the fact of driver having valid driving licence, vehicle having valid route permit, road tax certificate, goods tax certificate and fitness and taking of such generalized pleas, denied its liability.
12. It has come on record that notice which was sent for service by registered post AD to respondent no. 2, owner of the vehicle, was not returned unserved, therefore, presuming service on the owner of the truck, he was proceeded ex parte.
13. Claimants filed certified copy of the first information report dated 1.4.2015, copy of insurance policy, driving licence of Pinku Singh, charge sheet, postmortem report of Pinku Singh and registration certificate, permit and fitness of the vehicle when Tribunal framed as many as 5 issues.
14. Learned Tribunal after discussing a fact that claimant had produced Smt. Shanti Devi, S/o Ajay Pal Singh as their witness, on the contrary Insurance Company did not produced any oral evidence in support of their contention held that Pinku Singh while on duty was going to Gwalior when he was murdered under police station Ujhani. It also took note of certified copy of the charge sheet in which accused Raju alias Anand and Vikky were arrayed as accused. Post mortem report was also taken note of. The Insurance Company had taken plea that deceased was abducted and murdered and therefore his employment at the relevant time is not proved has been controverted on the basis of the FIR in which it is clearly mentioned that when Pinku Singh was taking truck to Gwalior when he was murdered by Raju alias Anand and Vikky. This fact was since not controverted by the Insurance Company, issue was found to be proved that Pinku Singh at the time of the accident was engaged as driver of the truck and was taking truck during course of his employment and in performance of his duty incidental to the employment.
15. It has also come on record that said mini truck was insured under package insured policy from 1.10.2013 to 7.10.2014 whereas accident had taken place between 28.3.2014 and 29.3.2014 during the currency of the validity of the policy. Driver was having valid driving licence which was not controverted by the Insurance Company besides this vehicle in question was having all the necessary permits, fitness etc. Learned Tribunal had taken income of the deceased as per the notification issued by the State of Uttar Pradesh under the Minimum Wages Act and then taking the age of the driver to be 34-years computed compensation which cannot be said to be arbitrary or illegal except that learned Tribunal has awarded interest at the rate of 8% and that too has made it conditional that in case amount of compensation is not deposited within 30 days of the award failing which interest will be payable at the rate of 8%. Claimants plea is that this interest rate should be 12% as is mandate of the statute and the interest should be made payable from the date of accident rather than on the failure of the insurer to satisfy the award within 30 day from passing of the award.
16. As far as case law submitted by counsel for the appellant is concerned, judgment in case of Oriental Insurance Company Ltd Vs. Poonam Devi (Supra), is distinguishable on its own facts. As far as judgment of the Supreme Court in case Rita Devi (Supra) is concerned, it is clearly held that difference between 'murder' which is not accident and 'murder' which is accident depends on the proximity of cause of such murder. In this very judgment the Supreme Court has dealt with the case of Challis Vs. London and South Western Railway Company 1905 2 KB 154, the Court of appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held:
"The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a provision to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the Legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened, and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously, Similarly in para 12. case of Nisbet vs. Rayne & Burn (1910) 1 KB 689, where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employers workmen, was robbed and murdered. The Court of Appeal held:
That the murder was an accident from the standpoint of the person who suffered from it and that it arose out of an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under the Workmens Compensation Act 1906. In this case the Court followed its earlier judgment in the case of Challis (supra). In the case of Nisbet, the Court also observed that it is contended by the employer that this was not an accident within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word accident negatives the idea of intention. In my opinion, this contention ought not to prevail. I think it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet.
17. Appreciating these facts and applying to the facts situation the Supreme Court in para-14 has observed as under :
"Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw.
18. As in the present case facts situation is similar to what has been dealt in para-14 of the judgment in case of Rita Devi (Supra), none of the substantial questions of law can be answered in favour of the Insurance Company. In fact, apparently 'murder' of Pinku Singh will fall within the purview of accident and since it arose out of an employment which involved more than ordinary risk, therefore, it can be said that there was an illegal act of third party which Insurance Company is required to compensate while undertaking to cover the risk of the truck plying on a highway, insurer understandably had undertaken the risk which is faced by truck drivers and staff on highways specially region which is covered under the dacoity affected area. Therefore, first two substantial question of law are answered accordingly.
19. As far as third substantial question of law is concerned as discussed above, there was a direct connection between death and the employment of the deceased, therefore, taking into its fold proposed 4th substantial question of law namely whether the death of the deceased arose out of and in the course of his employment are answered in positive namely that there is a proximate and direct relation between death and the employment. Death arose out of and in the course employment as driver.
20. As far as 5th substantial question of law is concerned, onus was on the Insurance Company to have examined the employer of the truck and ask from him as to whether he was maintaining records of employment or not but once this fact was not established by the Insurance Company by leading any cogent evidence, in the garb of technicalities, it cannot supersede a genuine claim. Therefore, all the substantial questions of law are answered in above terms.
21. Before parting, it is directed that Insurance Company shall pay interest at the rate of 12% from the date of accident till date of actual payment as is provided under section 4 A (3) of the Employees Compensation Act, 1923.
Order Date :- 6.1.2021 S.K.S.