THE HON’BLE SRI JUSTICE M. LAXMAN CIVIL MISCELLANEOUS APPEAL No.787 OF 2005

JUDGMENT:

1. The present appeal is directed against order dated 21.12.2004 passed in W.C.No.62 of 2003 by the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour, Mahabubnagar, wherein and whereby the claim made by the first respondent herein for the death of her husband in a motor vehicle accident that occurred on 07.06.2003, was partly allowed by granting compensation of Rs.3,66,561/- with interest @ 6% per annum from the date of accident till realization and ordered respondent Nos.1 to 2 to pay jointly and severally.

2. Aggrieved by the said order, the present appeal is at the instance of the 2^nd respondent/Insurance Company before the Assistant Commissioner of Labour. The 1^st respondent herein is the claimant and respondent Nos.2 to 7 are the legal heirs of respondent No.1. wife of the deceased, and 8^th respondent is the first respondent in the claim petition. For convenience, the rank of the parties as they were referred in the claim petition, is maintained.

4. The facts which are not in dispute are that the deceased was traveling in the crime vehicle when the accident occurred. There is also no dispute that the deceased died while the vehicle was plying on the road owned by the first respondent. It is also not in dispute that deceased died in the said accident. It is also not in dispute that at the time of incident, cleaner was driving the vehicle and he was not holding any driving licence.

5. The only dispute raised by the 2^nd respondent/Insurance Company is that there was not employer and employee relationship between the deceased and the first respondent, and other dispute is that the deceased himself handed over the vehicle to the cleaner who did not have licence and the accident occurred on account of own fault of the deceased, as such, the Insurance Company is not liable to pay compensation.

6. The evidence on record shows that the 1^st respondent filed pleadings to the effect that the deceased was traveling as a driver on the vehicle involved in the accident and there is no further evidence from the 2^nd respondent to rebut such pleadings by the appellant by summoning the owner. Therefore, the Commissioner has rightly appreciated the evidence and found that the deceased was an employee of the owner of the vehicle.

This finding requires no interference.

7. The substantial question raised in the present case is:

Whether act of the driver in handing over the vehicle to the cleaner, who did not possess licence to drive, disentitle him to claim the compensation?

8. The learned Counsel for the 2^nd respondent has contended that the driver knowingly well that the cleaner was not possessing the licence, handed over the vehicle to the cleaner and when the cleaner was driving the vehicle, the accident occurred. As such, Insurance Company is not liable to pay the compensation in which the deceased died and such death was attributable to own negligence of the deceased. Therefore, there is violation of policy terms by the insured. It is also her contention that there is disobedience of safety standard by the driver who was employed by the owner of the vehicle in taking the precaution by not handing over the vehicle to the person who did not possess licence. Therefore, as per Section 3(b)(ii)(iii) of the Workmen Compensation Act, workman is not entitled for compensation.

9. It is needless to say that the claim made by the person, who suffered permanent disablement or death, is based on “No fault theory.” Under the Workmen Compensation Act, the fault theory is applicable to the workmen to claim compensation other than injury resulting to death or permanent disability. This means if the injuries are of simple, and if certain standard precaution are not followed in respect of the vehicle, workman is not entitled for compensation. Any other serious cases like death out of injury, there is no applicability of theory of fault. Therefore, the content