The & Ors. v. Act

The respondent No.3 by filing the written statement admitted that the deceased w as a labourer of the said vehicle and he was getting Rs.135/- per day while work ing in the said vehicle. He also submitted all the relevant documents of the veh icle as well as the insurance policy, of the relevant period, which was issued b y the appellant herein. However, the appellant denied the liability of paying an y compensation that emerged from the said accident. On the face of the rival pleadings and for the purpose of a fair adjudication, t he following issues were framed by the Commissioner, Workmen’s Compensation: (1) ompensation Act, 1923? Whether the claimants are entitled to compensation under the Workmen’s C (2) What was the age and salary of the deceased workman? (3) l be the quantum of the compensation? Who will be liable to pay the compensation to the claimants and what wil The Commissioner, Workmen’s Compensation on analysis of the evidence as laid by the claimants returned the findings on all issues in the affirmative in favour o f the claimants.

It has been succinctly established that Saiful Islam, the decea sed workman, was employed by the respondent No.3 in his vehicle bearing registra tion No.ASN-5752 and in the course of and out of his employment, the deceased wo rkman met with the said fatal accident on 22.07.2002. He succumbed to the injuri es on the spot and at the time of accident the workman was aged about 19 years a nd he was drawing Rs.135/- per day and thus his monthly income was Rs.4,050/-. A s per the provisions of Workmen’s Compensation Act, 1923, the claimants are enti tled to get the compensation in the following terms: 50% of the monthly income as per provisions of Section 4(1)(a) of the Workmen’s Compensation Act, 1923 i.e. Rs.2,000/- as the monthly income index which is requ ired to be multiplied by the appropriate factor as provided in the Schedule IV a s appended to the Workmen’s Compensation Act, 1923 against the age of the workma n.

The appropriate factor is 225.22. Thus, the total compensation comes to Rs.4, 50,440/-. It has been directed that the said amount shall carry interest @ 9% pe r annum from the date of accident till the date of payment. It has been stated in the impugned judgment and award that in view of the decisi on rendered by this Court in the Oriental Insurance Company Ltd. -v- Sibu Ram Da s, the said rate of interest has been provided. By the impugned judgment and awa rd it has been further directed that the appellant shall pay the amount from the date of the order without fail. Mr. Sharma, learned senior counsel for the appellant submitted that the fundamen tal ground that has been resorted to in this appeal is confined to whether the i nsurance company has any liability at all to pay the said awarded amount as dire cted by the Commissioner, Workmen Compensation. In support of his contention, Mr . Sharma, learned senior counsel referred a decision of the apex Court as render ed in Ramashray Singh -v- New India Assurance Company Ltd. as reported in (2003) 10 SCC 663 wherein the apex Court considered a full bench decision of Kerala Hi gh Court as rendered in National Insurance Company Ltd. -v- Philomina Mathew and Ors. as reported in AIR 1993 Ker 226.

Kerala High Court in Philomina Mathew (su It has, however, been contended by the learned counsel for the responden pra) observed that: (cid:28)29. t-claimants that even if there is no negligence or breach of statutory liability , the award under the Workmen’s Compensation Act, 1923 itself is a ’liability’ w hich falls under Section 95(1)(b). In our view, such a contention cannot be acce pted. If the claimants have only an award under the Workmen’s Compensation Act, 1923 and there is no liability by way of negligence or for breach of statutory d uty mentioned in Section 94 read with Section 95(1)(b), the liability remains a liability under the Workmen’s Compensation Act, 1923 and the insurer cannot be m ade liable directly to the claimants except under Section 14 of that Act. Unless liability is established under the Motor Vehicles Act, 1939 also either by way of negligence or breach of statutory duty stated in Section 94 (apart from Secti on 92-A cases), the provisions of Section 96(1) do not come into play so as to m ake the insurer directly liable to the third-party claimants.

It is needless to say that the case of no-fault liability stands, (as stated under Point No.2) on a different footing inasmuch as it comes under both Acts as required by Section 110-AA. It comes under the Workmen’s Compensation Act, 1923 because of Section 9 2-D of the Motor Vehicles Act and it is a ’liability’ under Chapter VIII of the Act because of Section 93(ba) and thereby it attracts Section 96(1). But, there is no similar provision in Chapter VIII which makes a liability incurred only un der the Workmen’s Compensation Act, 1923 to be also a liability under Chapter VI II of the Motor Vehicles Act 1939. Such a benefit is given only to Section 92-A cases and to the limited class of awards passed by the Commissioner falling unde r the first proviso to Section 95(1)(b), as explained in Point No.1. Such a bene fit is not available to cover the liabilities under awards passed by the Commiss ioner in cases to which the second proviso applies where neither negligence nor breach of statutory duty of the employer of vehicle owner is established.

(cid:29) For the purpose of appreciating the development of statutory provisions as broug ht about by the amendment of the Motor Vehicles Act, 1988 w.e.f. 14.11.1994, it is required to extract the relevant part of Section 147 of the M. V. Act, 1988 as under: (cid:28)Section 147: Requirements of policies and limits of liability. - (1) In order t o comply with the requirements of this Chapter, a policy of insurance must be a policy which - (a) xxx xxx xxx xxx xxx (b) extent specified in Sub-Section (2) - insures the person or classes of persons specified in the policy to the against any liability which may be incurred by him in respect of the dea (i) th of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public servi ces vehicle caused by or arising out of the use of the vehicle in a public place : Provided that a policy shall not be required - (i) to cover liability in respect of the death, arising out of and in the co urse of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Com pensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to , any such employee- (a) engaged in driving the vehicle, or (b) or in examining tickets on the vehicle, or if it is a public service vehicle engaged as a conductor of the vehicle (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.

(cid:29) Mr. Sharma, learned senior counsel for the appellant further submitted that in a bsence of any contract covering the liability in respect of death and bodily inj ury to the persons being ’carried’, the appellant cannot be held liable for paym ent. Mr. Sharma, learned senior counsel seriously contended that since no premiu m was paid to cover the labourer as engaged for the said vehicle, the insurance company cannot be saddled with any liability and as such the direction of the Co mmissioner, Workmen Compensation is required to be interfered with. It transpire s that no evidence was led to show that the premium for the said purpose was pai d by the labourer who was engaged by the respondent No.3 in the offending vehicl e. The question that remains to be answered that whether the insurance company c an be held liable for the payment of the compensation in absence of such premium or not.

Ramashray Singh (supra) as referred to for the appellant is set up in an entirel y different fact situation. In Ramashray Singh (supra) the apex Court did not co nsider the import and purport of proviso to Section 147(1), M. V. Act, 1988. In view of Section 167 of the M. V. Act, 1988 the workman or the dependents are provided with two forums, one under Section 166 of the M. V. Act, 1988 and anoth er under Section 3 read with Section 4 of the W. C. Act, 1923. Section 147(1) pr ovides that to cover liability in respect of the death, arising out of and in th e course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the W. C. Act , 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such em ployee - (a) engaged in driving the vehicle, or (b) if it is a public service ve hicle engaged as a conductor of the vehicle or in examining tickets on the vehic if it is a goods carriage, being carried in the vehicle, or to c le, or (c) over any contractual liability, a policy shall not be required. ’A policy’ can o nly be construed in the context as no special policy arrangement by way of the c ontract qua contract would be required.

In view of the proviso to Section 147(1), M. V. Act, 1988 a workman who was bein g ’carried’ in the vehicle of the type as indicated shall be under insurance cov erage. Where the death or bodily injury to any person gives rise to the claim fo r compensation under the M. V. Act, 1988 and also under the W. C. Act, 1923, the person who is entitled to the compensation may without prejudice to the provisi on of Chapter-X of the M. V. Act, 1988, but not under both the Acts, elect the f orum. If the Section 147(1) of the M. V. Act, 1988 is read with Section 167 of t he M. V. Act, 1988, it would emerge that the said provisions of Section 147(1) c an be transposed for the purpose of the insurance coverage to achieve the object for which the legislation has been enacted. For mere non-selection or election of any forum the liability of the insurance company cannot be effaced. In this r egard Philomina Mathew (supra) also made a reference which may conveniently be s tated as the rule of transposition.

The transposition becomes beneficial for asc ertaining the liability as stated. In the considered opinion of this Court, the liability to pay the compensation t o the dependents of the deceased workman has been fastened with the insurance co mpany by the said social welfare legislation. That liability cannot be denied by the insurer for not electing the other forum. In view of this, this Court has no hesitation to hold that the impugned judgment and award requires no interference. This appeal is therefore stands dismissed. The appellant is directed to pay the remaining part of the award within a period of two months from today in accordance with the judgment and award dated 27.09. 2005 as passed by the Commissioner, Workmen’s compensation, Nagaon in NWC Case N o.292 of 2002. Send down the LCRs forthwith.