The duty of the employer in relation to the driver's license and the relevance of pleadings in allowing evidence.

Valmiki J. Mehta, J. (Oral)

FAO No.369/2013 and C.M. No.15008/2013 (stay)

1. This first appeal is filed under Section 30 of the Employees’ Compensation Act, 1923 impugning the judgment of the Commissioner dated 12.8.2013 which has allowed the claim petition filed by the claimant, respondent no.1 herein.

2. The case as set up by the respondent no.1 was that he was employed as a driver by the respondent no.2 herein/employer, respondent no.1 before the Commissioner, for driving of the vehicle bearing No.HR-55-N 5772 which was owned by the employer. On 1.12.2012 he was given instructions to carry out an occupational trip from Mumbai to Delhi and when the vehicle reached Delhi near Akshardham, applicant went for searching the godown where goods were to be unloaded. At that stage, he met with an accident from a vehicle which was coming from opposite side at a very high speed and driven rashly. As a result of the accident, the applicant/respondent no.1 received injuries all over his body including his left leg and which had to be amputated from the knee. The vehicle in question was insured with the company at the time of accident, and an additional premium was charged by the appellant for coverage under the Employee’s Compensation Act, 1923. Claim petition was accordingly filed.

3. The employer admitted before the Commissioner that the applicant was employed as a driver on the subject vehicle and that an accident occurred on 1.12.2012 and which is during the currency of the policy for which additional premium under the Employee’s Compensation Act, 1923 was paid to the appellant/insurance company.

4. In view of the above, the Commissioner without taking of evidence by the appellant/insurance company allowed the claim petition. The Commissioner has also held that objections that documents like MLC report, driving licence etc having not been filed are not ground for disallowing the claim petition. Reliance for such purpose has been placed upon the judgment of the Supreme Court in the case of National Insurance Co. Ltd. Vs. Mastan and Anr. 2006 ACJ 528.

5. Counsel for the appellant argued before this Court that the impugned order is liable to be set aside because the same has been passed without allowing the appellant/insurance company to lead evidence, however, when asked to show that which is the defence in the written statement for which the evidence had to be led, attention of this Court was drawn to para 2 of the preliminary objections, and which reads as under:-

“2. That is no document like M.L.C., and EMPLOYMENT CERTIFICATE, WAGES/SALARY CERTIFICATE, DRIVING LICENCE, PERMIT, FITNESS ETC. which has been placed on record or supplied to the answering respondent to establish his claim. Thus claim petition should be dismissed.”

6. This aspect of the defence of the appellant-insurance company has been rightly dealt with by the Tribunal in para 7 of its judgment and which reads as under:-

“7. I have gone through the contents of the claim application as well as reply filed by Respondents and documents placed on record by petitioner. In view of admission of R-1 that petitioner met an accident on 1.12.2012 by which his left leg was amputated from knee. On the other hand principally R-2 has also admitted vehicle in question was insured on the day of accident. Since the factum of Employee-Employer relationship accident are the admitted facts that I am of the view that further no trial is required in the court. The objection of Ld counsel of R-2 was that, that no documents like permit, medical and DL has been placed by petitioner on record as such petitioner is not entitled for any relief as terms and condition of policy is not fulfill. The objection Ld counsel of R-2 is not considerable because accident by which petitioner lost his left leg from knee not in question it is admitted fact by R-1 that petitioner was employed as a driver with them and he was on his employment on the day of accident. Apex court of land has held in case of National