IMPORTANT POINT
The insurance company is not liable to indemnify for compensation under the Employees Compensation Act when the driver does not possess a valid driving license, as this constitutes a breach of policy conditions.

ORDER :

(Nupur Bhati, J.) :

1. The instant misc. appeal has been preferred by the appellant under Section 30 of the Employees Compensation Act, 1923 (‘the Act of 1923’) challenging the legality and validity of the judgment/ award dated 23.12.2015 passed by the learned Commissioner, Employee’s Compensation (‘EC’), Balotra (Barmer) Camp Pali, in Claim Case No.E.C.C.F 52/2011 whereby the learned Commissioner held the appellant-Insurance Company liable to pay the compensation to the tune of Rs.8,54,280/-.

2. Brief facts of the case are that on 16.04.2011, Shri Joga Ram (since deceased) was going from Balasore to Cuttak while driving a Truck trailor bearing Registration No.RJ-19GB-1020, when he stopped the vehicle in order to check the condition of wheel, an unknown vehicle hit him and fled away and thus the deceased succumbed to death during the course of the treatment. The incident was registered at police station Khantapada, District Balasor. His legal representatives preferred a claim petition in terms of the Act of 1923 against the employer and insurer of the vehicle.

3. After filing of claim petition, notices were issued to the non-claimant No.1 and none appeared on his behalf and therefore, ex-parte proceedings were initiated against him. A reply was filed on behalf of non-claimant No.2-Insurance Company while denying the averments made in the claim petition. It is stated in the reply that the deceased driver Joga Ram was having a fake license and the appellant-Insurance Company is not liable to pay the compensation in view of violation of the policy conditions and thus, being aggrieved of the joint and several liability imposed upon the appellant-Insurance Company and the respondent no.7/employer, the appellant-Insurance Company prefers the present misc. appeal.

4. After hearing the parties, learned Commissioner framed four issues including:

5. In support of the claim petition, the appellant company examined Shri Pankaj Meena as NAW-1 and 9 documents were exhibited and on behalf of the non-claimants, Smt. Pushpa Devi and Subhash Khan have appeared as witness and some documents were exhibited, driving license was exhibited as exhibit-10.

6. Learned counsel for the appellant submits that the learned Commissioner, EC, Balotra (Barmer), vide award dated 23.12.2015, has erred in deciding the issue no.3 that the insurance company is liable to indemnify the insured towards the penalty arising under the Employee’s Compensation Act, 1923. He draws attention of this Court to the judgment passed by the Apex Court in the case of National Insurance Co. Ltd Vs. Mastan & Anr. reported in (2006)2 SCC 641 wherein it has been observed by the learned Tribunal that though under the Motor Vehicles Act, 1988 (‘MV Act’), even if the driver does not have any license, the Tribunal under MV Act may direct the insurer to meet the third party liability, permitting it to recover the same from the insured, however, the same is not the case under the Act of 1923.

7. Learned counsel for the appellant also relies upon the judgment passed by the Hon’ble Apex Court in the case of New India Assurance Co. Ltd. Vs. Harshadbhai Amrutbhai Modhiya reported in (2006) 5 SCC 192, wherein it has been observed by the Hon’ble Apex Court that there are no corresponding provision between the MV Act and the Act of 1923 pertaining to the liability of the insurer towards a third party and the scheme of Act of 1923 does not confer a right on the claimant for compensation under the Act of 1923 to claim the payment of the compensation in its entirety from the insurer himself.

8. Learned counsel for the appellant further places reliance upon the judgment passed by the Hon’ble Apex Court in the case of Beli Ram Vs. Rajinder Kumar reported in 2021 (1) RAR 13 (SC), wherein it has been observed by the Hon’ble Apex Court that unlike the MV Act, in case where the employee is not having a valid license, under the Act of 1923, the insurance company is not liable to pay for such breach of