National Insurance Co. Ltd. v. Aneesh Mohan @ Anish and Anuradha Saraf

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 6TH DAY OF FEBRUARY 2017/17TH MAGHA, 1938 MFA.No. 15 of 2013 ------------------AGAINST THE ORDER IN WCC 25/2005 of W.C.C.,ERNAKULAM DATED 04-01-2012 APPELLANT/2ND OPPOSITE PARTY: ----------------------------NATIONAL INSURANCE CO. LTD. BRANCH NO.1, ERNAKULAM REPRESENTED BY ITS MANAGER KOCHI REGIONAL OFFICE, KOCHI. BY ADV. SRI.A.A.MOHAMMED NAZIR RESPONDENTS/PETITIONER AND 1ST OPPOSITE PARTY: ---------------------------------------------- 1. ANEESH MOHAN @ ANISH, S/O.MOHANAN THEKKUDIYIL HOUSE, PERINCHANKUTTY PO, VATHIKKUDY VILLAGE, IDUKKI 685 562 2. ANURADHA SARAF, PROPRIETRESS, M/S ANURADHA ENTERPRISES, SHRI NIKETHAN, JANATHA ROAD, VYTTILA, KOCHI-19. R2 BY ADV. SRI.P.RAMAKRISHNAN R2 BY ADV. SRI.T.C.KRISHNA RR1 BY ADV. SRI.C.ARUN PRASANTH RR1 BY ADV. SRI.A.S.BRIJESH RR1 BY ADV. SMT.ROOPA RAMACHANDRAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(WCC) No.15 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of February, 2017** ## **JUDGMENT** ## _**Antony Dominic, J.**_ This appeal is filed by the second opposite party in W.C.C.25/05 on the file of the Commissioner for Workmen's Compensation, Ernakulam. 2. Briefly stated, the facts of the case are that the first respondent herein filed an application under the Workmen's Compensation Act claiming that he was a driver engaged by the second respondent in a goods autorikshaw bearing Regn.No.KL- 7/AQ 9661. It was his case that on 4.6.2004, when he was travelling in the autorikshaw driven by one Kunjumon accident occurred when the vehicle hit on the median and overturned. The applicant who was injured in the accident underwent treatment and contending that as a result of the accident, he suffered a permanent disability of 35% as evidenced by Ext.C1, medical certificate issued by the Medical Board, an application was filed M.F.A.(WCC) No.15 of 2013 : 2 : where he claimed compensation of Rs.6 lakhs. Notice was issued to the parties and though the second respondent/owner of the vehicle entered appearance, she did not file any objection. As far as the insurance company is concerned, though the company admitted the policy it contended that the coverage of the policy was for the driver and that policy did not provide coverage for any other passenger in the vehicle. In other words, though the insurance company admitted the existence of a valid policy, it denied coverage to the applicant. 3. The applicant was examined as AW1 and Exts.A1 to A11 and Ext.C1 medical certificate issued by the Medical Board were marked in evidence. On behalf of the appellant, DW1 was examined and Exts.R1 to R4 were marked. 4. On conclusion of the trial, the Commissioner passed the impugned order, finding that there was employer-employee relationship between the first respondent and the second respondent and also holding that the applicant was eligible for M.F.A.(WCC) No.15 of 2013 : 3 : compensation under the Workmen's Compensation. The Commissioner assessed the eligible compensation at Rs.1,86,791/and directed the appellant to deposit the same with interest at 12% from 4.6.2004. The appellant was also given liberty to recover the amount from the first opposite party. It is aggrieved by this order, the appeal is filed. 5. We heard the counsel for the appellant and the learned counsel appearing for respondents 1 and 2. 6. The contention that was urged by the counsel for the appellant was that the policy did not cover anybody in the vehicle other than the driver and that, therefore, the first respondent who was the passenger of the vehicle, was not covered by the policy. In support of this contention, learned counsel mainly relied on Ext.R2, the policy apart from the principles laid down by the Apex Court in the judgment in _United India Insurance Co. Ltd. v. Suresh [2008 (4) KLT 552]_ and _Manager, National Insurance Company Limited v. Saju P Paul and another [(2013) 2 SCC 41]_ . Counsel also M.F.A.(WCC) No.15 of 2013 : 4 : referred us to the Full Bench judgment of this court in _Oriental_ . _Insurance Company Ltd. v. Joseph [2012 (2) KLT 132]_ 7. On the other hand, learned counsel appearing for the first respondent, the applicant mainly relied on Ext.A11, the cover note issued by the appellant to contend that the passenger carrying capacity accepted by the insurance company was 'two'. Therefore, according to the learned counsel, the contention raised by the appellant that the policy covered only the driver was not correct. This contention was supported by the learned counsel for the second respondent/the employer. According to him, in Ext.R1, the letter issued by the second opposite party which was produced by the appellant, the second opposite party had denied the employeremployee relationship as well. Counsel, therefore, contended that if at all the contentions of the insurance company are accepted, petition itself should be dismissed. 8. We have considered the submissions made. As we have already stated that the only issue raised in this appeal for our M.F.A.(WCC) No.15 of 2013 : 5 : consideration is whether the policy issued by the insurance company, a copy of which has been produced by the appellant as Ext.R2, covered anybody other than the driver of the vehicle. According to us, this issue has to be answered with reference to the terms of the policy itself. A reading of Ext.R2, policy shows that the carrying capacity has been indicated in the policy document as zero. Obviously, therefore, this makes it clear that in addition to the policy holder nobody has been covered as per policy documents. True that in Ext.A11, the vehicle insurance cover note issued by the appellant, the passenger carrying capacity has been indicated as 'two'. However, this document itself makes it clear that it was issued on 13.2.2004 and its expiry period has been specified as 60 days. This means that when the accident occurred on 4.6.2004, the validity of Ext.A11 had already expired and what governed the parties is Ext.R2 the policy document issued by the insurance company. Therefore, whatever is stated in Ext.A11 cannot be relied on either by the claimant or the insured to fasten M.F.A.(WCC) No.15 of 2013 : 6 : the liability on the insurance company. Even in a case where it is accepted that there is a contradiction between Exts.A11 and R2, the prominence cannot be given to Ext.A11 the vehicle cover note which is issued to take care of the interregnum period till the policy document is issued. Therefore, we accept the contention that the policy coverage was only for the driver and not for anybody else. We find support to this conclusion of ours from the judgment of the Apex Court in _United India Insurance Co. Ltd. v. Suresh [_ 2008 (4) KLT 552] and _Manager, National Insurance Company Limited v. Saju_ . _P Paul and another [(2013) 2 SCC 41]_ 9. Insofar as this case is concerned, even according to the first respondent/claimant, when the accident occurred on 4.6.2004, the vehicle was driven by one Kunjumon and he was accompanying him in the vehicle. Evidently, therefore, though Kunjumon may have a coverage of the policy, the applicant would not get the benefit of the policy. Therefore, the insurer could not have been made liable for the compensation that was allowed. M.F.A.(WCC) No.15 of 2013 : 7 : 10. Once the insurer is absolved, normally the liability should be fastened on the employer. It was realising that danger that the learned counsel for the appellant was contending that in Ext.R1 letter issued by him he had issued the employment claim of the first respondent. According to him, therefore, the second opposite party cannot be made liable for the compensation in question. 11. Having considered the submission, we are of the view that if at all the second respondent had such a case, he ought to have contested the matter before the Workmen's Compensation Commission which he did not. There is a finding in the impugned order that there exists an employer-employee relationship between the first opposite party and the second opposite party and that finding has not been challenged by the second opposite party by filing appeal. In such circumstances, employer is estopped from disputing the employer-employee relationship between the first opposite party and the second opposite party. Once the finding of the Commissioner is accepted, naturally the liability for M.F.A.(WCC) No.15 of 2013 : 8 : compensation will get fastened on the second opposite party/the employer. 12. Therefore, this appeal is disposed of absolving the insurance company from the liability for payment of compensation, but, at the same time fastening liability on the second opposite party/the employer of the first opposite party. Appellant will be entitled to refund of the compensation deposited by them. The appeal is disposed of accordingly. _Sd/-_ **ANTONY DOMINIC JUDGE** _Sd/-_ **DAMA SESHADRI NAIDU JUDGE** _jes_