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2002 DIGILAW 532 (PAT)

National Insurance Co. Ltd. v. Dukhi Mistry

2002-04-23

RADHA MOHAN PRASAD

body2002
Judgment 1. This appeal, at the instance of the National Insurance Company Ltd., is directed against the order dated 18.2.2000 passed in Case No. C.W.C. 02/1999 by the Deputy Labour Commissioner-cum-Commissioner under Workmens Compensation Act, Magadh Division, Gaya (hereinafter referred to as the Commissioner) whereby and whereunder the appellant-Company has been held liable to indemnify the employer (respondent no. 4) for the death of the Manager who died in an accident with a truck on 10.11.1998 while going on a scooter of the Company, which was insured with the appellant-Company covering third party risk. 2. Respondent nos. 1, 2 and 3 are the claimants and respondent no. 4 is the employer of the deceased. The claimants filed the claim under the Workmens Compensation Act. Respondent no. 4 contested the case by denying its liability as, according to them, the deceased was not its employee. However, they did not adduce any evidence. The appellant Insurance Company also contested the claim by denying its liability on the ground that the risk of the deceased as a workmen was not covered under the Insurance Policy with respect to the scooter. It was further contended that as the employer denied that the deceased was its employee, there was no liability of the company in any case. 3. The Commissioner on consideration of the evidence has allowed the claim of Rs. 1,97,060/- with 12% interest in case the same is not deposited within thirty days and held the appellant-Company liable to indemnify the same. 4. The deceased has been held to be the employee of respondent no. 4. It has further been held that the deceased was going on the scooter which belonged to respondent no. 4 in connection with the work of respondent no. 4 when he met with an accident. According to the learned Commissioner, the insurance policy covered the risk of the employee driving the scooter also and thus has held the appellant-Company liable to pay the compensation. 5. It is contended on behalf of the appellant that the Commissioner has committed gross error in holding that the appellant Company is liable to indemnify the employer. It is submitted that the employer had not taken insurance policy for business premises and/or covering the risk of workman. Thus, according to him, in the present case, employer is liable to pay compensation to the claimants for the death of their employee. It is submitted that the employer had not taken insurance policy for business premises and/or covering the risk of workman. Thus, according to him, in the present case, employer is liable to pay compensation to the claimants for the death of their employee. He further submitted that if there was any liability of any one other than the employer, then it was the liability of the owner of the truck, which hit the scooter and the employee died. 6. Learned counsel for the respondents have submitted that once it is not disputed that the scooter in question was insured with the appellant-Company, then the liability of the Company held by the Commissioner is justified as it is covered under the provisions contained in first proviso to section 147 of the Motor Vehicles Act (hereinafter referred to as the Act). 7. Learned counsel for the claimants has submitted that it is true that the deceased was not engaged as driver to drive the vehicle, but he was driving the scooter of the employer (respondent no. 4) and was going in connection with the work of the employer (respondent no. 4). Thus, the risk under the insurance policy issued by the appellant Company with respect to the scooter covered the workman (employee) also. It is submitted that the Commissioner has not committed error in the impugned order warranting interference in appeal. 8. Learned counsel for respondent no. 4 further submitted that in case of such accident the claimant has option to raise his claim either under the Workmens Compensation Act or under the Motor Vehicles Act. As the claimants have raised claim under the Workmens Compensation Act, the Commissioner has rightly awarded compensation in their favour to be paid by the appellant-insurance Company. 9. I am unable to appreciate the said submission of learned counsel for respondent no. 4. There cannot be any dispute that the claimants have option to raise compensation either under the Workmens Compensation Act or under section 167 of the Act. But the question involved in the present appeal is as to whether on the face of the policy issued by the appellant-Company in respect of the scooter covering only third party risk, the appellant company can be held liable to pay the compensation in the facts and circumstances of the case. 10. But the question involved in the present appeal is as to whether on the face of the policy issued by the appellant-Company in respect of the scooter covering only third party risk, the appellant company can be held liable to pay the compensation in the facts and circumstances of the case. 10. In my opinion, learned counsel for the appellant has rightly contended that in the absence of any insurance policy for the business premises of respondent no. 4 and/or covering the risk of workmen, the appellant-Company cannot be held liable to pay compensation awarded by the Commissioner merely because the scooter in question was insured with the appellant-Company for third party risk only. 11. First proviso to section 147(1) of the Act does not cover the risk other than those specified in clauses (a), (b) and (c). I find it difficult to accept the submission of the learned counsel for the claimants that clause (a) of first proviso covers the risk of any person driving the vehicle insured for third party risk. Clause (a) only covers the risk of such employee engaged in driving the vehicle. 12. It is not the case of the claimants that the deceased was engaged in driving the vehicle. Thus, the Insurance Company cannot be held liable to pay the compensation merely because the deceased while going on the scooter of the Company (respondent no. 4) which was insured with the appellant-Company met with an accident. This Court finds that the Commissioner has erred in holding the appellant company liable to pay the compensation. 13. This appeal is, thus, allowed and the impugned order is set aside to the extent whereby the appellant Company has been held liable to pay the compensation awarded by the Commissioner. 14. It is submitted by Mr. Ajay Kumar, learned counsel appearing for the appellant Company that as per the requirement, the appellant has deposited the compensation amount in the court of the Commissioner for filing the present appeal. Thus, in view of the above decision, this Court may now direct the Commissioner to refund the said amount to the appellant-Company. Learned counsel for the claimants has, however, submitted that respondent no. 4 may be directed to pay the compensation at the earliest. 15. In the circumstances aforementioned, this Court directs for refund of the compensation amount deposited by the appellant-Company in the court of Commissioner and respondent no. Learned counsel for the claimants has, however, submitted that respondent no. 4 may be directed to pay the compensation at the earliest. 15. In the circumstances aforementioned, this Court directs for refund of the compensation amount deposited by the appellant-Company in the court of Commissioner and respondent no. 4 is directed to pay the compensation amount to the claimants within two months.