IFFCO Tokio General Insurance Company Limited vs Saiod Ali and Ors

Heard Mr. T. Kalita, the learned counsel for the appellant. Also heard Mr. M. Dutta, the learned senior counsel assisted by Mr. M. Rahman, the learned counsel for the respondents.

This Appeal under Section 30 of the Employees' Compensation Act, 1923 has been preferred by the appellant, namely, IFFCO Tokio General Insurance Company Limited, impugning the judgment and award dated 26.07.2022, passed by the learned Commissioner, Employee's Compensation, Dhubri in E.C. Case No. 28/2013.

The facts relevant for consideration of the instant appeal, in brief, are that, the present respondent/claimant, have filed a claim petition before the Commissioner, Employees' Compensation, Dhubri under the provision of Employees' Compensation Act, 1923, seeking compensation on account of death of one Saddam Hussain in an accident, which arose out of and during the course of his employment.

It is stated in the claim petition that late Saddam Hussain was employed as a handyman/cleaner (Khalasi) by the owner of truck bearing Registration No. WB-23-8470. It is further stated in the claim petition that on 28.01.2013 at about 9.00 am, while the said vehicle was proceeding from Bharampur to Krishnanagar, it met with an accident, when it reached at Panighata under Kaliganj Police Station. The accident occurred when the said truck hit the Panighata bridge and front side of the vehicle fell down from the bridge. As a result of the said accident, said Saddam Hussein sustained grievous injuries on his person. Later on, he succumbed to his injuries. In this regard, a police case, i.e., Kaliganj P. S. No. 66/2013 was also registered under Section 279/304 of the Indian Penal Code.

In the claim petition, it was stated by the claimant that the offending vehicle was insured with the present appellant under Manual Policy No. ITGI2312013 dated 23.01.2023, which had the insurance coverage of the offending vehicle from 23.01.2013 to 22.01.2014. The aforesaid claim case was registered as E.C. Case No. 28/2013 before the Commissioner, Employees' Compensation, Dhubri.

The present appellant as well as the owner of the offending vehicle contested the case by filing separate written statements. The owner of the offending vehicle took the plea that the offending vehicle was insured under the present appellant on the date of the accident and therefore, it is the Insurance Company, which is liable to indemnify any loss suffered by the insured on account of the accident. Whereas, the insurance company/appellant denied its liability to pay compensation to the claimant on the grounds that the accident occurred outside the policy coverage period.

On the basis of the pleadings of both the parties, the learned Commissioner, Employees' Compensation Dhubri framed the following issues:

At the time of admission of this appeal, a Coordinate Bench of this Court had formulated the following substantial question of law on 09.11.2022 in this appeal: -

In the E.C. Case No. 28/2013 before the Commissioner, Employees' Compensation, Dhubri, the claimant's side adduced the evidence of two witnesses in support of their claim and exhibited some documents. Whereas, the present appellant also adduced evidence of one witness and also exhibited some documents. However, by the judgment and award, which has been impugned by the present appellant in this appeal, the Commissioner, Employees' Compensation, Dhubri had awarded the claimants a compensation amount of Rs. 9,57,185.00/- along with an interest at the rate of 8% per annum from the date of filing of the claim petition. The present appellant was directed to pay the awarded amount to the claimants.

Mr. T. Kalita, the learned counsel for the appellant has submitted that the appeal of the present appellant is not directed against the claimants/respondent Nos.1, 2 and 3 neither they have anything to say regarding the quantum of compensation awarded. However, he submits that the present appellant denies its liability to pay the awarded compensation. He submits that the main ground in this appeal is that the learned Commissioner, Employees' Compensation, Dhubri erred in directing the present appellant to pay the compensation ignoring the evidence adduced by the sole witness for the Insurance Company. More specifically, the Exhibit-B, which is the Insurance Policy issued by the present appellant in respect of the offending vehicle.

He submits that the Exhibit-B clearly indicates that the date of effect of the policy issued by the present appellant was from 30.01.2013 to 29.01.2014. He submits that the witness for the insurance company namely the DW-1, Shri Bhaskar Mitra, who was an official witness has categorically stated in Paragraph No. 4 of his evidence-on-affidavit that the cover note submitted by the claimant bearing policy No. ITG123012013 against vehicle bearing Registration No. WB-23-8470 was never issued by the company against the vehicle involved in the said accident. He also submits that in the claim petition, in paragraph No. 7, the claimant had mentioned that the policy indicated the period of insurance from 31.01.2013 to midnight of 29.01.2014, however, he fairly submits that same was later on allowed to be deleted by order dated 12.11.2018 of the learned Commissioner, Employees' Compensation, Dhubri. He further submits that in the notices issued in E.C. Case No. 28/2013, the period of insurance coverage of the offending vehicle was indicated from 30.01.2013 to 29.01.2014.

He submits that the testimony of the DW-1 could not be controverted by the claimants' side during his cross examination. He further submits that the policy on the basis of which, the insurance coverage period was taken to be from 23.01.2013 to 22.01.2014 was never exhibited as documentary evidence before the Court. It was only annexed as Annexure-1. However, as same has not been exhibited as documentary evidence, the Commissioner Employees' Compensation Dhubri could not have treated the same to be a documentary evidence.

He further submits that the policy documents are normally issued to the insurer, which in this case was the owner of the offending vehicle. However, the owner of the offending vehicle did not produce any insurance policy before the Court neither He adduced any evidence to bring on record the insurance policy, which claims the date of coverage from 23.01.2013 to 22.01.2014. He submits that Exhibit-B clearly shows that the period of coverage of insurance in respect of offending truck was from 30.01.2013 to 29.01.2014, whereas, the accident occurred in this case on 28.01.2013. As such, he submits that the offending truck was not covered under any insurance policy on the date of accident.

He further submits that this fact was not taken into consideration by the learned Commissioner Employees' Compensation and as such, he acted beyond jurisdiction by directing the present appellant to pay the compensation amount for an accident which was not covered under the insurance policy. As such, he submits that the substantial question of law formulated by this Court should be decided in negative in this case. In support of his submission, the learned counsel for the appellant has cited a ruling of the Apex Court in the case of "National Insurance Co. Ltd Vs Smt. Sobina Iakai & Ors" reported in (2007) 7 SCC 785.

On the other hand, Mr. M. Dutta, the learned senior counsel for the claimant/respondent has submitted that the Commissioner, Employees' Compensation, Dhubri has rightly directed the present appellant to pay the awarded amount after considering the materials available on record and after going through the evidence of both the parties.

He submits that though the owner of the offending vehicle did not adduce any evidence in the E.C. Case No. 28/2013, before the Commissioner, Employees' Compensation, Dhubri, however, in the written statement filed by him in the instant case, he has categorically stated in the Paragraph No. 4 therein that the offending vehicle had insurance coverage on the date of accident under Manual Policy No. ITG 12312013 dated 23.01.2013 and it was valid from 23.01.2013 to 22.01.2014. He submits that it was also pleaded by the owner of the offending vehicle in his written statement that liability, if any, which arises from the accident shall have to be borne by the Insurance Company because of the insurance coverage of the offending vehicle On the date of the accident.

He further submits that the Manual Insurance Policy, which was annexed as Annexure-1 along with the evidence on affidavit of PW-1 clearly indicates that the period of insurance coverage of the offending vehicle was from 23.01.2013 to 22.01.2014. He further submits that the said document also indicates that a premium amount of Rs.17,520/- was collected in cash on 23.01.2013 itself.

He further submits that though in its written statement filed before Commissioner, Employees' Compensation, Dhubri, the Insurance Company/appellant had taken the plea that it had issued policy in respect of the offending vehicle on 30.01.2013, however, there is no denial in the written statement that no manual policy was issued as asserted by the claimant in his claim petition. He further submits that the averment made in last two line of Paragraph No. 7 of the claim petition was allowed to be deleted by the Commissioner, Employees' Compensation, Dhubri, by his order dated 12.11.2018 and, therefore, the same may not be taken into consideration.

He also submits that the Tribunal was also right in not relying on the testimony of DW-1 in as much as during his cross examination the DW-1 could not said anything about as to when and who had submitted the written statement or who signed it or when the policy was issued.

The learned senior counsel for the claimant/respondent further submits that in the Form 54 also the policy number indicated in Annexure-1 has been reflected, which lends credence to the fact that the Manual Policy was issued in respect of the offending vehicle on 23.01.2013 for period of insurance from 23.01.2013 to 22.01.2014. He, therefore, submits that the substantial question of law formulated in this appeal may be decided in favor of the claimant/respondent and this appeal may be dismissed. The learned senior counsel for the claimant/respondent in support of his submission, he has cited the judgment in the case of "Harihar Prasad Singh and Ors. Vs. Balmiki" reported in (1975) 1 SCC 212.

I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions.

On perusal of the substantial question of law formulated by a Coordinate Bench of this Court on 09.11.2022 in the instant appeal, it appears that it was formulated on the premise that there was no insurance coverage in respect of the vehicle involved in the accident on the date of accident. However, while deciding Issue No. 3, the learned Commissioner, Employees' Compensation, Dhubri has arrived at a finding that the offending vehicle was in fact covered under the insurance coverage of the appellant Insurance Company on the basis of the Manual Policy No. ITGI2312013, which was valid from 23.01.2013 to 22.01.2014. As such, unless it is held that the finding arrived at by the learned Commissioner, Employees' Compensation against Issue No. 3, formulated by it, was incorrect, there may not be any basis for formulating the substantial question of law in the form and manner as done in this appeal.

Hence, the question to be decided in this appeal is mainly as to whether the learned Commissioner, Employees' Compensation, Dhubri committed perversity while arriving at the finding that the offending vehicle was covered under insurance coverage on the date of alleged accident while considering the Issue No. 3.

On perusal of the records available before this Court, it appears that the learned Commissioner, Employees' Compensation, Dhubri came to the finding that on the date of alleged accident, that is on 28.01.2013, the offending vehicle was under insurance coverage on the basis of Manual Policy No. ITGI2312013, which was produced before the Commissioner, Employees' Compensation, Dhubri as Annexure-1, as well as an indication with regard to such coverage in the Accident Information Report and the seizure list also. It also appears that the learned Commissioner, Employees' Compensation, Dhubri also took into consideration the pleadings in the written statement of the owner of the offending vehicle, wherein it was categorically stated that the offending vehicle was under insurance coverage on the date of accident in view of the Manual Policy No. ITGI2312013, issued by the insurance company.

Thus, it appears that the learned Commissioner, Employees' Compensation, Dhubri had arrived at a finding as regards the question of fact that as to whether the offending vehicle was under insurance coverage of the appellant Insurance Company on the date of the accident, and unless such finding is held to be perverse finding, this Court, in exercise of its powers under Section 30 of the Employees' Compensation Act, 1923, may not interfere in such finding of fact.

While arriving at a finding that the offending vehicle was covered under insurance coverage on the basis of manual policy issued by the appellant Insurance Company to the owner of the offending vehicle, the learned Commissioner, Employees' Compensation, Dhubri relied on Exhibit-1, which is the Form 54, as well as seizure list of the vehicle, which is Exhibit-7, apart from relying on Annexure-1, i.e., the Manual Policy No. ITGI2312013 issued by the Insurance Company.

The learned Commissioner also took into consideration the testimony of DW-1, wherein he deposed that he has no knowledge regarding any criminal case registered against any agent of the Insurance Company or any other person regarding issuance of any fake policy number/insurance certificate in respect of the offending vehicle in the name of the appellant Insurance Company. It also took into consideration that from the cross-examination of DW-1, it appears that the said witness does not know anything about occurrence of the accident as well as insurance of the offending vehicle at his personal level. Under such circumstances, the conclusion arrived at regarding coverage of insurance of the offending vehicle on the date of the accident on the basis of Manual Policy No. ITGI2312013, which was valid from 23.01.2013 to 22.01.2014, may not be regarded as a perverse finding as the said finding was based on reasonable appreciation of materials before the learned Commissioner on record.

It is a well-settled proposition of law that if a finding of fact is arrived at by ignoring or excluding relevant materials or by taking into consideration irrelevant materials, or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in law. However, in the instant case, since the conclusion arrived at regarding insurance coverage of the offending vehicle on the date of accident is arrived at on the basis of materials available on record, said finding cannot be regarded as a perverse finding, and as such, in an appeal under Section 30 of the Employees' Compensation Act, 1923, the said finding of fact may not be disturbed by this Court.

In view of the discussions made and reasons stated in the foregoing paragraphs, this Court does not find any ground to interfere with the impugned judgment. The substantial question of law formulated by this Court, as well as clarified in the discussions made in the foregoing paragraphs of this judgment, is accordingly, answered.

This appeal is, accordingly, dismissed.

Send back the records of E.C. Case No. 28/2013 to the Commissioner, Employees' Compensation, Dhubri along with a copy of this judgment.