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2006 DIGILAW 330 (HP)

Oriental Insurance Company Ltd. v. Sawal Devi

2006-11-01

SURJIT SINGH

body2006
JUDGMENT Surjit Singh, J. 1. This appeal by the Insurance Company is directed against the Order of Commissioner (S.D.M.) under Workmen's Compensation Act, Theog, whereby compensation for the death of a conductor, named Harpal Singh, has been ordered to be paid, together with interest, by the appellant. 2. Relevant facts are that respondent Puen Dassi, mother of Harpal Singh, filed a petition for grant of compensation, under the Workmen's Compensation Act, for the death of her son Harpal Singh, who was allegedly employed as conductor on truck No. HIS 1675 belonging to respondent Devi Ram, in an accident of the said truck. The truck was insured with the present appellant, so the appellant was also impleaded as party. 3. In the reply filed by Devi Ram, it was admitted that Harpal Singh was employed as conductor and that he was paid salary at the rate of Rs. 2,000/-, per month. The present appellant in the reply did not deny that Harpal Singh was employed as conductor on the truck, in question, but simply pleaded ignorance. 4. The Commissioner after conducting the inquiry concluded that Harpal Singh was on board the truck in the capacity of conductor when the accident took place and sustained fatal injuries. It was also held that the monthly wages of Harpal Singh were to the tune of Rs. 2,000/-. Further, it was held that the truck was insured with the present appellant. With the aforesaid findings, the Commissioner awarded a compensation of Rs. 2,21,370/-, together with interest amounting to Rs. 75,265,80P and ordered the appellant to pay the compensation and the interest. 5. Submission made by the Counsel for the appellant are three-fold. His first contention is that Harpal Singh was not a conductor and hence not a workman and therefore, the Commissioner did not have the jurisdiction to award any amount of compensation. His next contention is that insurer is not liable to pay interest on the amount of compensation, in view of the law laid down by the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya and Anr. (2006)IILLJ782SC . The third contention as raised on behalf of the appellant, is that the compensation has not been computed in accordance with the provisions of Section 5 of the Workmen's Compensation Act. 6. Ltd. v. Harshadbhai Amrutbhai Modhiya and Anr. (2006)IILLJ782SC . The third contention as raised on behalf of the appellant, is that the compensation has not been computed in accordance with the provisions of Section 5 of the Workmen's Compensation Act. 6. As regards the first contention, a reading of the reply filed by the appellant shows that it did not specifically deny that Harpal Singh was on board the truck in the capacity of conductor at the relevant time. No doubt, it denied the averment that Harpal Singh was a conductor, but only for want of knowledge. The owner of the truck, namely respondent Devi Ram appeared before the Commissioner and testified in no uncertain terms that deceased was on board the truck in the capacity of conductor and he had been employed as conductor four months prior to the date of accident on the monthly wages of Rs. 2,000/-. He denied the suggestion put to him that his son Sunil was the conductor on the truck. 7. Learned Counsel for the appellant urged that in the F.I.R., Sunil Kumar is recorded to have been travelling by the truck as a conductor. The F.I.R. on which reliance is placed has not been proved, though its copy is available on the record. In the absence of the proof of F.I.R., no reliance can be placed on the copy, which is available on the record. Hence, the first contention is rejected. 8. Coming to the second contention, what the Hon'ble Supreme Court has held in New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya and Anr. (2006)IILLJ782SC (supra), is that the owner of the vehicle is not statutorily required to seek insurance cover for the employees except those named in the saving part of the proviso to Sub-section (1) of Section 147 of the Motor Vehicles Act, 1988. In that case the facts were that a salesman employed by the insured was traveling by the vehicle when it met with an accident. The policy though covered the risk of the employees but only to the extent of compensation money. It specifically excluded the liability for payment of interest on compensation money. In that case the facts were that a salesman employed by the insured was traveling by the vehicle when it met with an accident. The policy though covered the risk of the employees but only to the extent of compensation money. It specifically excluded the liability for payment of interest on compensation money. It was under these circumstances that Hon'ble Supreme Court held that where the risk of an employee of the insured is not statutorily required to be covered but it is only by a contract between the insured and the insurer, that the risk of an employee is covered, and the contract excludes the liability for interest payable on compensation money, the insurer cannot be made liable for payment of interest. 9. In the present case, the deceased was employed as conductor on the truck of the insured that met with an accident. The liability for his death/bodily injuries was statutorily required to be covered by Sub-clause (c) of Clause (i) of proviso to Sub-section (1) of Section 147 of the Motor Vehicles Act, and therefore, the aforesaid judgment is not applicable to the facts of the present case. In any case, the Insurance Policy, copy Ex. RW 2/A does not contain any clause excluding the liability of the Insurance Company for payment of interest, though, even if such clauses were there, that would have been meaningless and of no consequence when the risk of the deceased was required to be statutorily covered by the policy for the liability arising under the Workmen's Compensation Act, 1923, as stated above. 10. Regarding third contention, the learned Counsel submits that the monthly wages were required to be calculated in accordance with the provisions of Clause (a) of Section 5 of the Workmen's Compensation Act, 1923, but the Commissioner did not do so. Clause (a) aforesaid says that monthly wages of a workman for the purpose of working out the quantum of compensation are to be calculated by dividing the total amount received by the workman from his employer in the last 12 months by 12, where the workman has worked for not less than 12 months. That means the clause is applicable, where the workman has been in the service of employer concerned for a period of 12 months or more. In the present case, the deceased had been working with the owner of the truck only for four months. That means the clause is applicable, where the workman has been in the service of employer concerned for a period of 12 months or more. In the present case, the deceased had been working with the owner of the truck only for four months. Thus the clause is not applicable. 11. As a result of the above discussion, all the three contentions raised on behalf of the appellant are rejected. Consequently, the appeal is dismissed.