The duty of the owner of a vehicle to verify the driver's license at the time of employment and the application of the principle of contiguity in determining permit violations.

VALMIKI J. MEHTA, J.

CM No.5612/2017(exemption)

Exemption allowed, subject to all just exceptions.

Application stands disposed of.

FAO No. 74/2017 & CM No.5613/2017(stay)

1. This First Appeal under Section 30 of the Employee’s Compensation Act, 1923 is filed by the insurance company impugning the judgment of the Employee’s Compensation Commissioner dated 25.11.2016 by which the Employee’s Compensation Commissioner has allowed the claim petition filed by the claimant/respondent no.1 herein and has awarded compensation under the Employee’s Compensation Act on account of death of the son of the claimant, Sh. Arun Kumar Sharma.

2. The facts of the case are that the deceased, Sh. Arun Kumar Sharma is pleaded to have been working as a driver of a truck bearing No.RJ-14-GA-8783 which was owned by the employer/owner Smt. Roopa Sharma, respondent no. 2 herein, and who was the respondent no.1 before the Employee’s Compensation Commissioner. It was pleaded in the claim petition that on 16.1.2009 at about 10:45 AM when the subject truck was on its way from Bangalore to Delhi and it reached Raptadu village in Andhra Pradesh it was hit by a bus of Andhra Pradesh Road Transport Corporation (in short „APRTC’) bearing No.AP-28Z-0604 and because of the accident Sh. Arun Kumar Sharma died. It was pleaded that the bus operated by APRTC was being driven in rash and negligent manner but their employees being government employees managed to get an FIR registered that it was the deceased Sh. Arun Kumar Sharma who was rashly driving the vehicle. The vehicle in question was insured with the appellant/insurance company, respondent no.2 before the before the Employee’s Compensation Commissioner, under an insurance policy which was valid from 29.9.2008 to 28.9.2009 and consequently, the subject claim petition was filed. I may note that earlier a claim petition was filed under the Motor Vehicles Act, 1988 and which was allowed to be withdrawn wherein the claimant/respondent no.1 sought and was granted liberty to file a petition under the Employee’s Compensation Act.

3. The owner/employer/respondent no.2 herein did not appear before the Employee’s Compensation Commissioner and was proceeded ex-parte. The claim petition was contested by the appellant/insurance company, respondent no.2 before the Employee’s Compensation Commissioner. Two defences were pleaded on behalf of the appellant/insurance company for dismissal of the claim petition. The first issue which was urged was that the driving license of Sh. Arun Kumar Sharma was fake and secondly it was urged that there was violation of the permit condition because the vehicle in question had no permission for being driven in Andhra Pradesh where the accident occurred.

4. Two issues were framed on the aspects as stated above, and of which onus was on the appellant herein, evidence was led on behalf of the appellant/insurance company as onus of both the issues with respect to the driving license being fake and the vehicle being driven in an area for which there was no permit, were on the appellant/insurance company. Since the present appeal will have to be decided almost entirely on the basis of the affidavit by way of evidence filed on behalf of the appellant/insurance company, and since the affidavit by way of evidence is a short affidavit of four paras in two pages, the same is reproduced as under:-

“Evidence by way of affidavit on behalf of respondent No.2 National Insurance Co.Ltd.

I, Dharmender Arya, Administrative Officer of National Insurance Co. Ltd. having its office at, 2E/9, Jhandewalan Extension, New Delhi – 55, do hereby solemnly affirm and declare as under:

1. I say that I am the official of the National Insurance Co. Ltd. and handling the present case and thus aware of the facts of the case. Thus I am competent to swear this affidavit.

2. I say that that the liability of the insurance company arises out of the insurance contract in the present case which is already on record. The said policy has