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2007 DIGILAW 749 (KER)

United India Insurance Company Limited v. Komalam

2007-11-05

A.K.BASHEER, K.S.RADHAKRISHNAN

body2007
Radhakrishnan, J. 1. This appeal has been preferred by the United India Insurance Company Limited disputing their liability of compensating the legal heirs of the deceased on the ground that the vehicle insured was to involved in the accident and that the application preferred by the claimants before the Tribunal was not in accordance with Section 22 (2)(b) of the Workmens Compensation Act, 1923. 2. Application was preferred under Section 22 of the Act before the Commissioner claiming compensation for the fatal accident caused to deceased Sivan alias Sivasankaran alleged to be during the course of his employment. Claimants submits that deceased Sivan was a head load worker of the first respondent by name Saidalavi and that while he was loading timber in a lorry bearing registration No.KL-9D/576 belonged to Saidalavi on 4.4.1998 sustained serious injuries due to the fall of timber on his body and he succumbed to the injuries. It was stated that the deceased was getting wages of Rs.4,000/- and that he was aged 30 years at the time of accident. Further it is also stated that the vehicle was insured with the third opposite party. 3. First applicant herself was examined as AW-1 and co-worker Devadas was examined as AW-2. Exts.A1 to A6 are the documents produced and marked on the side of the applicants. First opposite party was declared ex-parte. Second opposite party entered appearance and denied employer-employee relationship between the first opposite party and deceased Siva. It is also stated that the second opposite party was never informed of the accident. Third opposite party which had insured the vehicle also filed written statement on 2.2.2007 and argument note was also submitted by the advocate. It is stated that the lorry KL-9D/576 was never involved in the accident and no intimation was received by the insurance company about the alleged accident. Accident is stated to have occurred on 4.4.1998. Further it is also pointed out that there is nothing to show that Saidalavi had engaged the deceased at any point of time and death had occurred during the course of employment. 4. We may at the outset point out that though the accident had occurred on 4.4.1998 application claiming compensation under Section22 of the Workmens Compensation Act was preferred on 24.12.2004 with a petition for condonation of delay. 4. We may at the outset point out that though the accident had occurred on 4.4.1998 application claiming compensation under Section22 of the Workmens Compensation Act was preferred on 24.12.2004 with a petition for condonation of delay. Delay of more than six years was condoned by the Commissioner without issuing notice to the third opposite party with whom lorry KL-9D/576 was insured. Further, no acceptable evidence was adduced by the claimant to show involvement of the lorry KL-9D/576 in the accident occurred on 4.4.1998. No evidence was adduced to show that deceased Sivan was the employee of Saidalavi, owner of the lorry. On the death of the deceased a case was registered by the policy and F.I. statement was given by one Adbulla who was with the deceased while loading the timber. F.I statement submitted by the policy which was marked as Ext.A1 in Crime No.138/98 and stated as follows: Malayalam There is no reference whatsoever with regard to the involvement of the lorry bearing registration number KL-9D/576 in the F.I. statement. No materials have been produced to show that Sivan was an employee of Syedalavi, owner of the lorry. Ext.A2 is the scene mahazar in which also there was no reference whatsoever to the lorry in question. After a period of more than six years claim petition was preferred. For the first time it is stated in the claim petition that he accident had occurred while loading the timber in a lorry KL-9D/576 and that too during the course of employment and that the deceased was the employee of Syedalavi, owner of the lorry. We have therefore no hesitation to state that the present application is an after though and filed perhaps in collusion with the first opposite party. Saidalavi who remained ex-party. Claimants somehow or other wanted to rope in the insurance company, so that the amount could be recovered from the insurance company. We may in this connecting refer to Section 22 of the Workmens Compensation Act, 1923 which reads as follows: 22. From of application (1) Where an accident occurs in respect of which liability to pay compensation under this Act arises, a claim for such compensation may, subject to the provisions of this Act, be made before the Commissioner. We may in this connecting refer to Section 22 of the Workmens Compensation Act, 1923 which reads as follows: 22. From of application (1) Where an accident occurs in respect of which liability to pay compensation under this Act arises, a claim for such compensation may, subject to the provisions of this Act, be made before the Commissioner. (1A) Subject to the provisions of sun-section (1), no application for the settlement of any matter by Commissioner (other than an application by a dependant or dependants for compensation) shall be made unless and until some question has arisen between the parties in connection there with which they have been unable to settle by agreement. (2) An application to a Commissioner may be made in such form and shall be accompanied by such fee, it any, as may be prescribed, and shall contain, in addition to any particulars which may be prescribed, the following particulars namely: (a) A concise statement of the circumstances in which the application is made and the relief or order which the application claims; (b) In the case of a claim for compensation against an employer, the date of service of notice of the accident on the employer, and if such notice has not been served or has not been served in due time, the reason for such omission; (c) The names and addresses of the parties; and (d) Except in the case of an application by dependants for compensation a concise statement of the maters on which agreement has and of those on which agreement has not been come to. (3) If the applicant is illiterate or for any other reason is unable to furnish the required information in writing, the application shall, if the applicant so desires, were prepared under the direction of the Commissioner. Sub-Section (2) states that the application may be made in such form and shall be accompanied by such fee, if any, as may be prescribed, and shall contain in addition to any particulars, in the case of a claim for compensation against an employer, as may be prescribed, and shall contain in addition to any particulars, in the case of a claim for compensation against an employer, the date of service of notice of the accident on the employer, and if such notice has not been served or has not been served in due time, the reason for such omission. Sub-section (2) of Section 22 states that the application shall contain the particulars and a concise statement of the circumstances in which the application is made and the relief or order. Therefore it is incumbent on the part of the claimant to furnish those details in the application preferred under Section 22 of the Act. In the case of a claim for compensation against an employer, the date of service of notice of the accident on the employer and if such notice has not been served or has not been served in due time the reason for such omission. These requirements have not been satisfied in this case. Further it is the specific case of the Insurance Company that the Company was not informed or was given any notice either by the owner of the lorry or by the claimant at any point of time regarding the accident. Accident was stated to have occurred on 4.4.1998. Insurance Company has denied the employer employee relationship. Further, no scrap of paper was produced to show that the deceased was doing the work on behalf of Saidalavi. Burden is entirely on the claimant to show that there was employer-employee relationship between Saidalavi and the deceased. Burden is also on the part of the claimant and also on the employer to show that notice of the accident was served on the Insurance Company Considering the above mentioned facts and circumstances of the case we have no hesitation to hold that the application preferred under Section 22 of the Act is ill conceived and solely intended to rope in the insurance company. F.I. statement and other documents do not indicate that Sivan was an employee of Syedalavi. In such circumstance we are inclined to allow this appeal and set aside the order of the Commissioner. The appeal is allowed as above.