BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K.DHAYALAMURTHI, B.SC., MEMBER – II CC. 59 / 2001 TUESDAY THE 15TH DAY OF NOVEMBER 2011. K. Venugopalan, S/o, Madavan Naiyar, Proprietor, Sri Mookambika Lorry Service, No.83, E.B. Colony, Kalinjur, Vellore-4. … Complainant. - Vs – 1. The Branch Manager, The Oriental Insurance Co. Ltd., Arcot Road, Vellore – 632 004. 2. The Divisional Manager, The Oriental Insurance Co., Ltd., No.1, Katpadi Road, Vellore – 632 004. 3. S. Mohan, Assistant Divisional Manager, The Oriental Insurance Co. Ltd., No.1 Katpadi Road, Vellore – 632 004. 4. Raj Bee, W/o Late Usmakhan, 5. Siddique Khan S/o. Late Usmankhan, 6. Minor Imran Khan, S/o. Late Usmankhan, 7. Bhalkhis Begam D/o. Late Usmankhan, 8. Malliga Begam D/o Late Usmankhan, Opposite party No.4 to 8 are residing at No. 17/1, Big Allapuram Street, Vellore Town, Taluk and District. … Opposite parties. . . . . . This petition coming on for final hearing before us on 8.11.2011, in the presence of Thiru. M.R. Ramanan, Advocate for the complainant and Thiru. N.S. Ramanathan, Advocate for the opposite parties 1 to 3 and Thiru. A. Lakshmipathy, Advocate for the opposite parties 4 to 8, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant is the owner of a Leyland lorry of 1995 model, open type with the registration mark No.BYH220332 C 33 6891 new brand vehicle bearing registration lorry No.TN23A8998. The complainant insured the said vehicle with the Oriental Insurance Company Limited at Vellore and paid the sum of Rs.10,935/- plus Rs.547/- in all a sum of Rs.11,482/- as premium under the comprehensive policy for the period from 6.2.95 to 3.2.96 and the company in turn issued the certificate given the policy No.413504/95/406/cvg/6523/NB). Jamankhan was the driver of his lorry aforesaid. Whileso the complainant received summons from the court of the Commissioner for workman’s compensation, Madras informing that W.C.No.181/1996 was filed by one Rajbee and others against the complainant and the Oriental Insurance Company Limited, Vellore and it was posted to 24.10.96 for appearance. Immediately on receipt of the same the complainant met the opposite parties 1 and 2 herein and informed them about the notice to which the opposite parties 1 to 3 herein assured the complainant that they would make arrangement for engaging a lawyer for filing the counter on behalf of the complainant and for contesting the suit and believing the same that they would do so the complainant left them. Then the 1st opposite party obtained the signature of the complainant in a vakalath for being filed into the said court and he also said that a counter on behalf of the company will be filed recording the same as adopted by the complainant and therefore the complainant need not engage a separate lawyer. Therefore the complainant has not engaged a lawyer and filed his counter in the above W.C. case. Thereafter the complainant received a notice dt.31.10.96 from the advocate M.V. Jagadeesan of Gudiyatham informing the complainant that he was engaged by the Oriental Insurance Company Limited, and appear on behalf of in the aforesaid W.C. and the complainant should produce the claim form and other documents and vehicle particulars within 3 days to the 1st opposite party failing which the Insurance Company will deny any liability. He had already given all those documents to the 1st opposite party with the claim form. Further the complainant was not served with a copy of the petition in W.C. No.181/96 and therefore the complainant again met the opposite parties 1 to 2 herein and asked for a copy to which they said that the legal representatives of one Usmankhan, the driver of the vehicle TN-23-A8998 who died due to heart failure in the accident on 22.8.95 had filed the said W.C. claiming a compensation of Rs.1,50,000/- and that their company would contest the said petition. Thereafter the complainant received another notice dt. 17.3.01 from M.V.Jagadeesan, Advocate for the Insurance Company stating that the above case stands posted to 2.3.01 for filing the counter as a last chance and therefore the complainant should come to file the counter. Then the complainant met the opposite parties 1 to 3 on 23.3.01 and given to the 2nd opposite party herein the R.C. driving license, permit for the vehicle and also the original policy for filing counter. Then opposite parties 1 to 3 herein said to the complainant that even if an award was passed the company would arrange to pay the same. Then the complainant was asked to appear on 12.9.01 by the 1st opposite party to depose as a witness in the said court. The complainant also attended the enquiry and gave his evidence. The 2nd opposite party was also examined as a witness. He deposed denying the policy of insurance in favour of the Oriental Insurance Company Limited. Thereafter the complainant also received a copy of the Judgement dated 8.10.01 in W.C. 181/96 passing a award against the complainant directing him to pay a compensation of Rs.61,250/- and completely absolving the Insurance Company from any liability. The court had stated that the amount should be deposited into the court within 30 days from the date of receipt of the order said i/d the complainant should pay the amount with the interest at 6% p.a. from the date of filing of the petition. 2. A perusal of the Judgement passed in W.C. NO.181/1996 as follows: That Usmakhan was working as a driver under the 1st respondent therein the lorry owned by him bearing registration No.TN-23-A-8998 and when he was under his employment in the accident that took place on 22.8.1995 due to heart failure the said Usmankhan died and the prayed for compensation with interest and cost from the opposite parties therein under section 10(1) of the Workman’s compensation Act of 1923. The 1st complainant was the wife of Usmakhan, complainants 2 an 3 are sons and 4 and 5 are the daughters of the deceased Usmankhan. It was stated in the said complaint that the deceased Usmankhan was working as driver under the 1st opposite party in his lorry bearing registration No.TN.23-A8998 for a monthly salary of Rs.1500/- and on 22.8.95 when he was driving the said lorry near the C.M.C. Hospital, Vellore he suffered throwing pain, then he was asked to take rest and another driver was arranged to drive the same and when the said lorry reached Vellore the said Usmankhan was found dead in the lorry. The lorry bearing registration No.TN-23-A-8998 belonged to 1st respondent, insured with the 2nd respondent and the deceased died while under employment under the 1st respondent therein and the accident took place then only he died at the time of accident and the complainants are the legal representative of the deceased Usmankhan prayed a sum of Rs.1,50,000/- may be awarded as compensation with the interest at 18% p.a. from the date of accident and cost of the suit. The 1st respondent / complainant herein has not filed any counter in the said complainant, since the 1st respondent / complainant herein did not appear in the continuing enquiry he was set exparte on 12.2.97. Later he received the order dated 16.11.99 informing the petitioner / complainant was dismissed for default of respondents 4 to 8. The 2nd respondent therein (The Divisional Manager, Oriental Insurance Company Limited, Vellore ) deposed that the said petition was not maintainable in law and on facts that the allegations contained in the petition viz. the age of the deceased, employment, income and the nature of the injuries sustained by him, the particulars regard the treatment given to him and the manner of accident have to be proved only by the complainants that the complainant are also put to strict proof that they are the heirs of the deceased that the opposite party denies the very accident, that the complainants should produce documentary evidence to prove that he was working under the 1st opposite party, he suffered throat pain and died while in service under him, that the deceased was not employed, that this petition should be dismissed as this petition is not coming within the purview of Workman’s compensation Act, that only if there is a policy in currency on the date of the accident, if there is records pertaining to the vehicle in question and if there is a valid driving license held by the deceased driver the complainants are entitled to get compensation and that therefore the petition should be dismissed with cost of the respondent. 3. On the side of the petitioner Rajbee was examined as P.W.1 and K.Venugopalan was examined as P.W.2 in this case. On the side of the 2nd respondent N.Mohanam the Assistant Divisional Manager was examined as R.W.2, on the side of the petitioners Ex.P1 burial ground chit and Ex.P2 the death extract were filed. On the side of the Ex.R1 being the registered letter sent by 2nd respondent’s advocate to the 1st opposite party therein. The issues framed therein are answered as follows: PW1 in her evidence stated what has been stated by her in her petition. She filed Ex.P1 burial ground chit and Ex.P2 the death certificate of Usmankhan PW2 the 2nd respondent therein in his evidence stated that the lorry TN-23-A8998 belonged to him. That the deceased when he was under his employment suffered throat pain and died. The lorry driven by the deceased was insured with the 2nd respondent therein. When the evidence of P.W.1 and P.W.2 and also Exs.P1 and 2 were examined it is found that the deceased died after suffering throat pain while he was under employment and died while driving TN-23-A-8998 on 22.8.95 in the accident. So the petitioners are entitled to get compensation. Further the 1st respondent stated that the vehicle TN-23-A-8998 driven by the deceased was insured with the 2nd respondent. But the 2nd respondent stated that the vehicle involved in the accident was not insured with him, that he has not submitted the records relating to the vehicle involved in the accident, driving license, that the FIR copy and the postmortem certificate copy were not given to him that as per the policy condition the 1st respondent should have given the records relating to the vehicle, the documents showing that the deceased was under his employment and the driving license and since the 1st respondent has not given all these documents to the 2nd respondent the 2nd respondent is not liable to pay any compensation and so the entire compensation should be paid only by the 1st respondent. The age of the deceased is determined as 50 on the basis of Ex.B1. Though it is stated that the salary of the deceased was Rs.1500/- per month no document is filed to prove the same from both sides. So his salary is determined as Rs.1000/- as per month minimum wages Act. In these circumstances the court award a compensation of Rs.61,236/- which the 1st respondent K. Venogopalan has to pay within 30 days from the date of receipt of this order failing which he has to pay interest at 6% p.a. from the date of petition till date of deposit. 4. After perusing the said judgement the complainant met the opposite parties 1 to 3 herein and questioned the highly fraudulent conduct of the 3rd opposite party denying the Insurance liability despite the insurance being renewed even after 1995-1996 till February 2002 annually. Then the complainant issued a notice dt. 31.10.96 enclosing a copy of the Judgement in W.C.No.181/1996 and making it clear that the complainant is not liable to pay the decree amount and the Oriental Insurance Company alone should remit the amount to the complainants and also stating that the 3rd opposite party herein has made a false statement deliberately against the interest of the complainant. Therefore the complainant issued a registered notice through his lawyer dt. 23.11.01 calling upon the opposite parties 1 to 3 herein to pay the award amount to the petitioner in the W.C. and also to pay to the complainant herein Rs.2,00,000/- for having caused mental agony and physical torture due to deficiency in service on the part of the opposite parties 1 to 3 and to pay a sum of Rs.1500/- being the notice charges failing which face legal action. The said notice was received by the opposite parties 1 and 2 on 23.11.01 and on 26.11.01 by the 3rd opposite parties 1 and 2 on 23.11.01 and on 26.11.01 by the 3rd opposite party. A copy of this notice was also sent to the Advocate, M.V.Jagadeesan and he also acknowledged the receipt of this notice on 23.11.01. Subsequent to the issue of the aforesaid notice to the opposite parties 1 to 3, and after receipt of the said notice, the 2nd opposite party, as if he has not received the said notice sent a notice dt. 22.11.01 stating that the amount due to the complainants in W.C.No.181/1996 should be paid only by the complainant and the Insurance Company was not liable to pay the same. The complainant has also served a copy of the notice on the Advocate for the complainants in W.C.No.181/1996 Mr.Lakshmipathi, who are the opposite parties 4 to 8 herein. To the said notice dt. 22.11.2001 issued by the complainant to opposite parties 1 to 3 he received a reply dt. 28.11.01 stating that “your client has not produced any records (trip sheet) to prove that the alleged usmankhan was driver and no document is filed to prove the death occurred due to over strain and FIR and Postmortem certificate. After 5 years your client has submitted Xerox copies of R.C. DL claim form. This is clear violation of terms and conditions of the Insurance Policy. Your client has submitted the claim form only after the completion of evidence on the side of the Insurance Company in the above case.” The opposite parties 1 to 3 have deliberately suppressed insurance policy, claim form. R.C. and D.L already submitted to them even in the year 1983 itself. The advocate for the opposite parties 1 to 3 issued a notice to the complainant dt. 31.10.96 in which he had requested the complainant to appear in the case W.C.No.181/96 for filing counter on 8.11.96 and he had also stated in that notice that the petitioner was the owner of the vehicle TN.23-A8998 and the accident had taken place on 22.8.95 and the claim petition was filed for recovery of compensation by opposite parties 4 to 8 herein. Further he also sent a copy of this notice to opposite parties 1 to 8 making mention of policy No.413504/95/405/CVG/6523/- with the observation that the opposite parties 1 to 12 should collect the claim form and vehicle particulars from the complainant and forward it to the Deputy Commissioner for Labour No.1, Vellore. Thus it is clear that the allegations made by the Advocate for the opposite parties in his notice dt. 28.11.01 about the non-insurance of the vehicle and submission of vehicle particulars were absolutely false and reckless suppressing material facts. Immediately after the receipt of the letter he contacted the opposite parties 1 and 2 and showed the notice received from their Advocate. He also showed the noticed dt. 31.10.96 and asked them whether he could engage an independent advocate to defend the case for which the opposite parties after obtaining the x-copies of the Insurance Policy claim form R.C and DL they assured the complainant that he need not worry about anything about the case and it is sufficient if he gave a vakalath and accordingly the complainant handed over the vakalath form to them. Further they also stated that they would file a counter on 8.11.96 on behalf of the complainant adopting the counter to be filed by them. He received a registered notice from Lakshmipathi, Advocate for opposite parties 4 to 8 stating that the driver of the vehicle Usmankhan the husband of 4th opposite party and father of opposite parties 5 to 8 has suffered heart attach and he died while he was working under the complainant as driver and therefore he was bound to pay compensation to the claimants. He had also stated that the 4th opposite party is the wife of Usmankhan and that he was his driver and therefore he should attend the case and adduce evidence in W.C.No.181/96 on 12.9.2000 and that on receipt of this letter dt. 26.8.2000 the complainant met opposite parties 1 to 3 and asked them whether he should adduce evidence. They stated that he should adduce evidence since the deceased driver was under his employment and that the insurance policy was taken in their company. Then the complainant also wrote a letter dt. 30.8.00 to the advocate for opposite parties 4 to 8 stating that he was not liable to pay any compensation and any exparte decree obtained by him is not binding on him. Since the opposite parties 1 to 3 stated that the complainant should appear and depose he appeared and gave evidence. The petition had clearly mentioned that when the complaint was dismissed for default (16.11.99) and he was not intimated above any restoration they were not liable to make a claim against him. 5. Thereafter the complainant also received summons from the W.C. Court dated 30.8.2000 asking him to appear as witness and give evidence on 12.9.2000. The complainant accordingly appeared in the court and gave evidence. He was asked that the 3rd opposite party who has examined as D.W.1 had denied the insurance policy taken by the complainant and also questioned him that it was registered with his company. The Insurance policy and other documents were not submitted to them. When as a matter of fact the vehicle was not only insured on the date of accident but also subsequently periodically renewed. The 3rd opposite party has suppressed the fact that his counsel Mr.M.V.Jagadeesan had sent a notice dt. 17.3.2001 to the complainant asking him to file his counter on 28.3.01 for which the complainant was posted as a last chance and the policy of insurance claim form and the vehicle documents should be filed in the W.C. court suppressing deliberately that these documents were already given to opposite parties 1 to 3 and questioned the proprietary of their advocate issuing notice dt. 17.3.2001 for the production of the records when as a matter of fact he was already delivered Xerox copies of those documents in 1996 itself. Then the opposite parties 1 to 3 passified the complainant and asked him to bring the original and also Xerox copies for compensation and accordingly the petitioner took all the originals and Xerox copies and delivered them to opposite parties 1 to 3. They have compared and again delivered to him back the originals and put the seal of the office and the notice issued by their advocate dt. 17.3.01 acknowledging the receipt of the claim form DL, Rc, permit etc and policy of insurance dt. 23.3.01. Thereafter the complainant was asked to receive a copy of the and grand passed in W.C. NO.181/1996 dt. 8.10.01 in which the complainant alone was directed to pay a sum of RS.61,236/- as compensation to opposite parties 4 to 8 and the opposite parties 1 and 2 were absolved from any liability directing the petitioner to deposit the amount within 30 days from the date of receipt of this order failing which the complainant should pay interest at 6% p.a. from the date of petition. 6. Immediately the complainant contacted the opposite party 1 to 4 and asked them as to why he should pay the amount when as a matter of fact the policy for the vehicle in question with the Oriental Insurance Company Limited was in force on the date of accident and also when the policy and other records were given to them immediately on their advocate’s letter, and why they have not filed his counter and why they have not filed the records given to them relating to the vehicle and the policy into the court and why they have not defended him as promised for which they kept quiet. Thus it is seen that the opposite parties have deliberately not only filed the Insurance policy and other records into court but also not recorded his adopting their counter as originally promised and also avoided petitioner engaging his own lawyer. For the first time in 1996 and for the 2nd time on 23.3.01 xerox copies of the documents were submitted to the opposite parties 1 to 3 but they have failed to produce the same into court even though the petition was posted for enquiry on 12.9.01. After the delivery of those documents to opposite parties 1 to 3 for the 2nd time on 23.3.01 there was a period of six months this till date of enquiry on 12.9.01 during which period also the opposite parties could have filed the records given by the complainant to them but they did not do so wantonly, deliberately and willfully and because of their deficiency in service on their part on award was passed against the complainant in W.C.No.181/1996. Not content with that the opposite parties have also deliberately deposed the W.C. court that the complainant has not insured the lorry in question in their company, which could be seen from the judgement of the said court. This is nothing but misrepresentation perjury and what not. On account of this the complainant is put to mental agony and physical torture on account of the perjury, misrepresentation and deficiency in service on the part of the opposite parties 1 to 3 and therefore he is claiming Rs.2,00,000/- as compensation from the opposite parties 1 to 3 for their said act. Today the issue thus is not only of award of compensation but who should be the burnt? In this regard let us see what the Supreme Court says in the decisions reported in the case of Lucknow Development authority Vs. M.K. Guptha reported in 1994 (1) L.W. 19 at page 10 when the court directs payment of damages or compensation against the state of ultimate suffer is the common man. It is the tax payer’s money which is paid for in action of those who are entrusted under the act to discharge their duties in accordance with law. It is therefore necessary that the court when it is satisfied that the complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course, should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unprobandable behaviour by dividing it proportionately where there are more than one functionaries. 7. Therefore the complainant is not liable to pay the award amount of Rs.61,000/- and odd passed in W.C.No.181/96 since the opposite parties 1 to 3 did not deposit the amount as per the terms and conditions of policy of insurance within a period of one month from the date of receipt of the order the complainant is now called upon to pay the interest at 6% p.a. from the date of petition viz from 1996. The opposite parties 1 to 3 are bound to pay the amount due as per the award to the opposite parties 4 to 8 with interest till date of payment. They are also bound to pay the expenses incurred by the complainant from 1996 till date apart from the cost of this petition. Against the award passed in W.C.No.181/1996 against him he should prefer an appeal. But since the rules stipulates that he has to deposit the entire award amount before the appellate court he could not file the appeal. Therefore, the complainant has sought for order of this Forum directing the opposite parties 1 to 3 to pay the sum of Rs.81,236/- with interest at 6% p.a. from the date of filing of W.C.No.181/96 till date of payment in full to the opposite parties 4 to 8 or to the complainant to enable him to pay the same to the opposite parties 1 to 3 as per the award and directing the opposite parties 1 to 3 as compensation for the mental agony, physical torture and embarrassment caused to the complainant due to the deficiency in service on the part of the opposite parties 1 o 3 as narrated above personally from their salaries to the complainant in a sum of Rs.2,00,000/- and to pay a sum of Rs.10,000/- being the expenses incurred by the complainant before filing this complaint inrespect of phone contract, correspondence, issue of notice charges, etc. to the complainant and to pay a sum of Rs.10000/- being the cost of this petition to the complainant. 8. The averments in the counter filed by the 1 to 3rd opposite party are as follows: The complaint filed by the complainant is not sustainable either in law or on facts of the case. The opposite parties deny the allegation made in the complaint save an except those that are specifically admitted herein and as regards the rest the complainant is put to strict proof of the same. The opposite parties deny the allegation the late Jasmankhan was driver of the lorry No.TN23-8998 on the date of his death and he died during employment due to employment injury. The complainant never met the opposite parties 1 to 3 before 24.10.96 and informed them about the accident nor these opposite parties assured the complainant that they would make arrangements for engaging a lawyer for filing the counter on behalf of the complainant and will contest the case. The further allegation that the 1st opposite party obtained the signature of the complainant in the Vakalath for being filed into court on behalf of the complainant is absolutely false and denied by the opposite parties 1 to 3. The opposite parties have not assured the complainant that they will adopt the counter to be filled by them as adopted by the complainant. They never told the complainant that he need not engage a separate lawyer. The complainant ought to have taken immediate steps to file the claim form, and ought to have produced the policy, FC, RC, permit, the driving license of the driver along with the trip sheet to the opposite parties 1 and 2 and ought to have extended support and co-operation for defending the case. The complainant has not done so but on the other hand he had allowed the WC commissioner to set him exparte as he had not appeared before him as per the summons received by him. Now the complainant cannot turn the table again these opposite parties and cannot accuse them for the developments that had taken place due ot his own fault and active support given to the complainant in W.C. 181 of 1996. Since the complainant had not informed these opposite parties about the claim, not lodged claim form and not produced documents to enable these opposite parties to take a stand the Advocate of the opposite parties 1 and 2 Thriu.M.V. Jagadeesan sent a notice to the complainant calling upon him to produce claim form, all the documents and the vehicular policy particulars and documents before the 1st opposite party so as to enable to prepare the counter on behalf of opposite parties 1 & 2. But even on receipt of the said notice, the complainant had not met these opposite parties, nor lodged claim form, policy and vehicular documents including the trip sheed for verification by the opposite parties 1 and 2. No where it is mentioned in the said notice that he was engaged by the company to appear on behalf of the complainant herein and to defend his cause. So the allegation that by the notice dt. 31.10.96 sent by Thriu.M.V. Jagadeesan, the complainant was informed of engaging him for the complainant also and to appear before WC commissioner on behalf of complainant too is denied by these opposite parties. The further allegation that the complainant had already given all the documents called for in the notice to the 1st opposite party with the claim form is absolutely false and denied by these opposite parties. At no point of time the complainant produced the documents called for before these opposite parties nor they verified the same. If it is true that the complainant would have sent a reply to Thiru.M,V. Jagadeesan informing him about the same. The fact that he had not done so clearly proves that the complainant had not produced the documents, nor lodged the claim form as called for in the said notice. The further allegation that the complainant again met the opposite parties 1 & 2 herein, ascertained the particulars of the case, and the opposite parties 1 and 2 had assured him that the company would contest the said complaint are invented from the fertile imagination of the complainant. 9. The complainant is put to strict proof of the allegations that he had received the notice dt. 17.3.01 from Thiru.M.V. Jagadeesan that the case stands posted to 2.3.01 for filing counter as a last change and so the complainant has to come to file counter, since these allegations are not correct. These opposite parties deny the allegations that the complainant met the opposite parties 1 to 3 on 23.3.01 and given to 2nd opposite party the FC, Driving license, permit for the vehicle and also the original policy for filing counter. These opposite parties also deny the further allegations that the opposite parties 1 to 3 had told the complainant that even if the award was or in passed, the company would arrange to pay the same. The said allegations are false. The opposite parties never asked the complainant to attend the court on 12.9.01 and to give evidence as a witness. In fact the Advocate for the 2nd opposite party was surprise when the complainant was examined as a witnesses PW2 on the side of the complainants in W.C. 181 of 1996 admitting that the deceased was his workman and died during employment. He was cross examined by the Advocate of the opposite parties 1and 2 on all aspects by the Advocate of the opposite parties 1 and 2 on all aspects and elicited from him that he had not produced the policy, the trip sheet of the lorry, non lodged the FIR and Post Mortem was not done. Since the complainant had not produced any documents, the 3rd opposite party has not other option except to deny the liability of the company and made a note of his deposition and the event taken place in court in the notes paper also. In these circumstances, since the complainant himself had admitted that the deceased was his workman and died during employment, the WC Commissioner had no other option expect to pass an award against the complainant, directing him to deposit the award amount, and dismissing the claim as against the opposite parties 1 and 2 there was no documents produced by the complainant making them also liable. The copy of the Judgement of the WC Commissioner given in WC No.181/1996 is filed herewith and the same may be read as part and parcel of this counter. The opposite parties deny the allegations that the complainant met the opposite parties 1 o 3 after the Judgement in W.C. NO.181/96 was delivered. The language used by the complainant against the 3rd opposite party is unwarranted and highly objectionable. The 3rd opposite party reserves his right to take appropriate action against the complainant for defamatory and uncharatibale remarks made against the 3rd opposite party. The 3rd opposite party while giving evidence before the Workmen Compensation Commissioner was not aware that the vehicle in question was insured with the opposite parties 1 and 2. Further since the complainant failed to produce the documents called for, naturally the 3rd opposite party is not award of the insurance. So his evidence denying the insurance cannot be termed as fraudulent. The 3rd opposite party has not reasons to depose a wrong statement against the complainant. These opposite parties are not liable to pay the compensation awarded by the court and also the imaginary claim of Rs.2 lacks claimed by the complainant by way of damages. 10. These opposite parties state that the liability of the insurance company is denied on the following grounds. a) Insurance Policy was not produced in time to verify the insurance. b) Insurance company does not know whether the alleged vehicle was involved in the accident. c) There was no FIR about the accident or incident. d) There was no postmortem to prove that the driver had died due to heart attach and due to strain. e) There was no trip sheet to show that the deceased was at wheels driving the vehicle in question on the day of the incident. So even if there is a valid policy since there was no records to prove that the deceased died during employment due to any employment injury, these opposite parties are not liable to pay any compensation to the complainant in W.C. 181/96. The court has granted the award only on the basis of admission made by the complainant that the deceased was employed by him and he died during employment hours even though there are no records to prove the said fact. The complainant has not produced any records, the trip sheet to prove that the deceased had driven the lorry at the point of time and no document was filed to prove that the death occurred due to over strain. No police complaint was lodged or intimated about the accident and postmortem was not conducted. Even as per the policy condition the complainant has to give notice immediately after the occurrence and co-ordinate with the insurance company in conducting the case. But the complainant remained exparte and chosen to colluded with the complainant in W.C.No.181/96 and was examined and gave evidence on the side of the complainant. The 3rd opposite party has in his evidence has given the facts within his knowledge. So it is very clear from the narration made that even if the policy is in existence these opposite parties are not liable to pay any amount on the ground that the deceased was a workmen and died during employment hours, further there was no such alleged incident of heard attach since there was no documents proof of the same. The notice sent by the complainant on 22.11.01 but the complainant’s lawyer sent a reply on 5.11.01. The allegation that the opposite parties 1 to 3 have deliberately suppressed the insurance policy, claim form RC, and DL which were already submitted to them even in the year 1983 in absolutely false. The allegations that the complainant had contacted the opposite parties 1 and 2 on receipt of the notice dt. 31.10.96 and handed over the x-copy of insurance policy, claim form, RC and DL for their verification and asked the opposite parties 1 and 2 that whether the complainant has to engage and independent advocate to defend but the opposite parties 1 and 2 assured the complainant that it is enough if gives a vakalath to them are all false and denied by the opposite parties. 11. The allegation that the complainant had handed over in 1996 and 23.3.00 the copies of all documents but they have failed to produce the same on the date of enquiry and there is a deficiency in service on the part of the opposite parties of these opposite party is denied by the opposite parties. The complainant had not produced the relevant documents called for, particularly the trip sheet, wage register, FIR, Postmortem report or any other records to these opposite parties to support the cause of the complainant herein. So there is no deficiency of service, dereliction of duty on the part of the opposite parties. The complainant is not entitled to the sum of Rs.10,000/- being the alleged expenses incurred by the complainant and another sum of Rs.10,000/- as cost of the proceedings. The opposite parties are not liable to pay a sum of Rs.61,236/- with interest nor these alleged damages of Rs.2 lacs. This Forum has no jurisdiction to entertain and try this complaint. Further this complaint is also not maintainable. Hence this complaint is to be dismissed with compensatory costs of this complaint. 12. The averments in the counter filed the opposite parties 4 to 8 are as follows: The petition filed by the complainant is maintainable either in law or on facts. It is to be allowed with cost of the petition. The deceased Mr. Usman, is the husband of opposite party and the father of opposite parties 5 to 8. He was driver of lorry TN-23-A-8998, belonged to the applicant. On 22.8.1995, while he was on duty, sustained massive cardiac arrest, heart-attack and he died during employment hours of the applicant. So these opposite parties filed a compensation claim petition at workmen compensation court in WC 181/1996, Chennai. The case was contested and decreed against the applicant. The applicant insured the lorry TN-23-A-8998 with the 1st opposite party, namely the oriental Insurance Company limited under Policy No.413504 / 95 / 406 / CVG / 6523 / N.B. Covers from 6.2.95 to 5.2.96. It covers the date of accident and death occurred on 22.8.95. The 2nd opposite party contested the claim. The applicant Mr.K.Venugopal, approached the company to defend him. He produced to the Insurance Officer, all vehicle records of R.C. Book, driving license, permit copy etc. and the concerned officer, satisfied and assured him to defend and pay the compensation if decreed or to re-imburse him from the payment. The case was contesting against the applicant. During enquiry, the opposite party, namely the officer of the Oriental Insurance Company Limited, deny the policy and he said adamantly that the vehicle is not insured and denied the policy. The applicant shocked of it. He came to workmen compensation court and deposited evidence, informing all the facts that the vehicle is insured with the company and the policy is covered. The case is decreed against the opposite party for Rs.1,50,000/- on 8.10.01. As per the Policy conditions issued by the Oriental Insurance Company Limited, it is bound and duty to pay the compensation award amount on behalf of the applicant, or re-imburse the applicant. But the insurance company did not care of the applicant and his request. So, it is purely negligent service or in-sufficient service or denying his bound and duty of the Oriental Insurance Company Limited. The opposite party, namely the Oriental Insurance Company Limited has adduced no proper cause for the in-sufficient service or denial of duty bound rendered by him for applicant. Therefore it is prayed this Forum may be pleased to order to pay compensation by the opposite party, the Oriental Insurance Company Limited, for a sum of Rs.1,50,000/- with interest at 18% p.a. and cost thereon, in favour of these opposite parties and pass such further orders or relief as this Hon’ble court may be deemed fit and proper to the circumstances of the case. 13. Now the points for consideration are: (a) Whether there is any deficiency in service, on the part of the opposite parties? (b) Whether the complainant is entitled to the reliefs asked for?. 14. Ex.A1 to Ex.21 were marked on the side of the complainant and Ex.B1 to Ex.B4 were marked on the side of the opposite parties. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side. 15. POINT NO- (a): It is admitted case of the parties that the opposite parties No.4 to 8 / Petitioners have filed a petition before the Workmen Compensation Commission, Chennai against the 1st respondent therein / complainant herein and 2nd respondent therein / 1st opposite party herein, prayed for compensation with interest and cost from respondent therein under section 10 (1) of the workmen’s compensation Act of 1923. It was stated in the said petition that the deceased Usmankhan was working as driver under the 1st respondent therein / complainant herein in his lorry bearing No.TN23-A8998 for a monthly salary of Rs.1500/- and on 22.8.95 when he was driving the said lorry near the C.M.C. Hospital, Vellore, he suffered throwing pain and he was found dead in the lorry. The petitioner therein / opposite parties No.4 to 8 herein are legal representative of deceased Usmakhan prayed a sum of Rs.1,50,000/- as compensation from the respondent therein / complainant herein and 1st opposite party herein. The 1st respondent therein / complainant herein did not appear in the continuing enquiry and he was set exparte on 12.2.97. But at the same time, he was examined as a witness PW-2 on the side of the petitioner in WC No.181/96, admitting that the deceased Usmankhan was his workman and died during employment, and on the side of the 2nd respondent therein / 1st opposite party herein N. Mohanam, the Assistant Divisional Manager was examined as RW-2. After enquiry, the workmen compensation Commissioner passed the award against the 1st Respondent therein / complainant herein, directing him to deposit the award amount and dismissing the claim as against the 2nd Respondent therein / 1st opposite partly herein, since the complainant himself had admitted that the deceased Usmankhan was his workmen and died during employment. 16. The complainant herein / 1st respondent in W.C.No.181/96 contented that after perusing the award passed in W.C.No.181/96, the complainant issued a notice dt. 31.10.96 enclosing a copy of the award in W.C.No.181/96 and making it clear that the complainant is not liable to pay the decree amount and the Oriental Insurance Company (opposite parties No.1 to 3 herein) should remit the amount to the petitioner in W.C.No.181/96 and also stating that the 3rd opposite party herein denying the Insurance liability despite the Insurance being renewed even after 1995-1996 till February 2002 annually. Thereafter the complainant herein issued a registered notice through his lawyer dt. 23.11.01 calling upon the opposite parties 1 to 3 herein to pay the award amount to the petitioner in the W.C. and also to pay to the complainant herein Rs.2,00,000/- for having caused mental agony and physical torture due to deficiency in service on the part of the opposite parties 1 to 3 herein. 17. The opposite parties 1 to 3 contented that the complainant herein never met the opposite parties 1 to 3 before 24.10.96 and informed them above the accident nor these opposite parties assured the complainant that they would make arrangements for engaging a lawyer for filing the counter in W.C. No.181/96. The complainant herein ought to have taken immediate steps to file the claim form and ought to have produced the policy, FC, RC permit the driving license of the driver along with the trip sheet, FIR, Post mortem report of Usmankan to the opposite parties 1 and 2. But the complainant herein has not done so but on the other hand he had allowed the workmen compensation petition to set him exparte as he had not appeared before him as per the summons received by him. Even after receipt of the legal notice sent by Thiru. M.V. Jagadeesan, Advocate for the opposite parties 1 & 2, the complainant had not met the opposite parties 1 & 2 nor lodged claim form, policy and vehicular documents including the trip sheet for verification by the opposite parties 1 & 2. Since the complainant had not produced any documents, the 3rd opposite party has no other option except to deny the liability of the company. The 3rd opposite party while giving evidence before the Workmen Compensation Commissioner was not aware that the vehicle in question was insured with the opposite parties 1 & 2. It is further contended that the opposite parties 1 to 3 denied the liability of Insurance company on the following grounds:- a) Insurance Policy was not produced in time to verify the Insurance. b) Insurance company does not know whether the alleged vehicle was involved in the accident. c) There was no FIR about the accident or incident. d) There was no postmortem to prove that the driver had died due to heart attach and due to strain. e) There was no trip sheet to show that the deceased was at wheels driving the vehicle in question on the day of the incident. Even after there is a valid policy since there was no records to prove that the deceased died during employment due to the any employment injury, these opposite parties are not liable to pay any compensation to the complainant in W.C. 181/96. The Workmen Compensation Commission granted the award only on the basis of admission made by the complainant herein that the deceased was employed by him and he died during employment hours even though there are no records to prove the said fact. Therefore, the opposite parties No.1 to 3 is not liable to pay the decree amount. Hence, there is no deficiency of service, dereliction of duty on the part of the opposite parties. 18. The complainant herein has not denied the contention of the opposite parties 1 to 3 herein that when the complainant was examined as a witnesses PW2 on the side of the opposite parties No.4 to 8 herein, in W.C.No.181 of 1996 and admitting that the deceased was his workman and died during employment. Further, the complainant herein has not denied the contention of the opposite parties 1 to 3 that since the complainant herein had not produced any documents, the 3rd opposite party has no other option except to deny the liability of the company. From the perusal of Ex.A12 / Ex.B2 award passed by the Workmen Compensation Commissioner, Chennai, it is seen that only two documents i.e. burial receipt and death certificate of Usmankhan were marked on the side of the petitioners / opposite parties 4 to 8 herein. The 1st respondent therein / complainant herein has not produced the trip sheet to prove that the deceased had driven the lorry at the point of time and the postmortem certificate to prove that the driver had died due to heart attack. Further, a careful perusal of the above said award passed by the Workmen Compensation Commissioner, Chennai, it is seen that the Commissioner has granted the award only on the basis of admission made by the 1st respondent therein / complainant herein that the deceased was employed by him and he died during employment hours, even though there are no records to prove the said fact. According to the opposite parties 1 to 3 that even as per the policy condition the complainant herein has to give notice immediately after the occurrence and co-ordinate with the insurance company in conducting the case before the Workmen Compensation Commissioner. But the complainant herein remained exparte and chosen to colluded with the Petitioner in W.C.No.181/96 and gave evidence on the side of the petitioner. The 3rd opposite party herein has in his evidence has given the facts within his knowledge. Therefore if the policy is in existence these opposite parties are not liable to pay any amount on the ground that the deceased was a workmen and died during employment hours. According to the complainant herein, after perusing the award passed by the Workmen Compensation Commissioner, the complainant herein issued a notice dt. 31.10.96 enclosing a copy of the award in W.C. No.181/96 calling upon the opposite parties 1 to 3 herein to pay the award amount to the petitioner in the said W.C. It is admitted facts of the parties that the legal representation of the deceased Usmankan filing the petition against the 1st respondent therein / complainant herein and the 2nd respondent therein / 1st opposite party herein before the Workmen Compensation Commissioner, Chennai. The Workmen Compensation Commissioner has stated in his order that since the 1st respondent therein / complainant herein himself had admitted that the deceased Usmankan was his workman and died during employment, he passed an award against the 1st Respondent therein / complainant herein directing him to deposit the award amount, and dismissing the claim against the 2nd Respondent therein / opposite party No.1 herein. Therefore the contention of the complainant herein that the 1st respondent therein / the complainant herein is not liable to pay the decree amount passed in W.C.No.181/96 and the opposite parties 1 to 3 should remit the award amount is not acceptable. 19. The complainant herein contended that the 1st time on 12.9.01 and 2nd time on 23.3.06 Xerox copy of the documents were submitted to the opposite parties 1 to 3 but they have failed to produce the same before the Workmen Compensation Commissioner, even though the said petition was posted to enquiry 1st time on 12.9.01 and 2nd time on 23.3.06, and caused of deficiency in service on their part, an award was passed against the complainant in W.C.No.181/96. According to the opposite parties No. 1 to 3 that since the complainant herein had not informed these opposite parties about the claim and not produced any documents to enable these opposite parties to take a stand before the Workmen Compensation Commissioner. Thiru. M. V. Jagadeesan, Advocate for opposite parties 1 & 2, sent a notice to the complainant calling upon him to produce the claim form, and the vehicular policy particulars before the 1st opposite party so as to enable to prepare the counter on behalf of opposite parties 1 & 2, but even on the receipt of the said notice the complainant not produced any documents, not met these opposite parties nor lodged claim form and policy. From the perusal of Ex.A21 legal notice, dt. 28.11.01 sent by the Thiru. M.V. Jagadeesan advocate for the 1st opposite party herein it is seen that the complainant herein calling upon to produce the claim form along with the relevant documents and vehicular policy particulars. But even on the receipt of the said notice the complainant has not produced claim form and policy particulars to the opposite parties 1 & 2. Further there is no document on the side of the complainant herein to prove that the Xerox copy of the documents of the vehicle submitted to the opposite parties 1 to 3 on 12.9.01 and on 23.3.06. From the perusal of Ex.A12 / Ex.B2 award passed by the Workmen Compensation Commissioner in W.C.No.181/96 and the documents filed by both sides it is seen that as per the policy condition the complainant has to give notice immediately after the occurrence and co-ordinate with the opposite parties No.1 to 3 in conducting the case before the Workmen Compensation Commissioner, but the complainant has failed to produce the claim form, policy particulars and other relevant documents to the opposite parties No.1 & 2. But at the same time the complainant herein remained exparte and chosen to colluded with the petitioner in W.C.No.181/96 and was examined and gave evidence on the side of the said petitioner. Based on the evidence of the complainant, the Workmen Compensation Commissioner has passed award against the complainant herein directing him to deposit the award amount and dismissing claim against the 1st opposite party herein. 20. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A21 and Ex.B1 to B4, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. Hence we answer this point (a) as against the complainant herein. 21. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 22. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 15th day of November 2011. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- -- - X-copy of Driving License. Ex.A2- -- - X-copy of Form of Certificate of Registration. Ex.A3- 19.10.95 - X-copy of Certificate of Insurance. Ex.A4- 11.10.86 - X-copy of notice in W.C.No.181/96. Ex.A5- 31.10.96 - X-copy of letter of M.V. Jagadeesan, Advocate, Vellore. Ex.A6- 1.3.95 - X-copy of National Permit for goods Carriage. Ex.A7- 16.11.86 - X-copy of order in W.C.No.181/96. Ex.A8- 23.8.00 - X-copy of the notice. Ex.A9- -- - X-copy of letter from the petitioner. Ex.A10- --- - X-copy of certificate-cum-policy schedule. Ex.A11- 17.3.01 - X-copy of letter to petitioner by M.V. Jagadeesan. Ex.A12- 8.10.01 - X-copy of order in W.C.No.181/96 Ex.A13- 31.10.01 - X-copy of letter to the opposite party. Ex.A14- 1.11.01 - X-copy of Postal Ack. Card. Ex.A15- 22.1.1.01 - X-copy of Notice by the petitioner. Ex.A16- 23.11.01 - Ack. Card. Ex.A17- 23.11.01 - Ack. Card. Ex.A18- 23.11.01 - Ack. Card. Ex.A19- 26.11.01 - Ack. Card. Ex.A20- 22.11.01 - X-copy of letter of the 2nd Respondent to the petitioner. Ex.A21- 28.11.01 - X-copy of letter of Mr.M.V.Jagadeesan, Advocate, Gudiyattam to the Petitioner. Opposite parties’ Exhibits: Ex.B1- 31.10.96 - X-copy of Notice. Ex.B2- 8.10.01 - X-copy of Award in W.C.NO.181/96. Ex.B3- 28.11.01 - X-copy of notice. Ex.B4- 5.11.01 - X-copy of notice. MEMBER-I MEMBER-II PRESIDENT.
| | [HONABLE MRS. Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[HONABLE MR. Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
