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2008 DIGILAW 325 (MAD)

N. Senthilkumar v. S. Ramesh and Another

2008-01-30

R.BANUMATHI

body2008
Judgment : R. BANUMATHI, J. Being aggrieved by the award of compensation of Rs. 93,990/-under Workmens Compensation Act, directing the first respondent-Employer to pay the Compensation, Claimant has preferred this Appeal. 2. Brief facts giving rise to this Appeal are as follows: (i) On 24.2.2001 e 3. p.m. the Claimant drove the Mini Auto from Coimbatore to Salem N.H. and when the Mini Auto was proceeding near Vaikkalmedu, it was hit from behind by the lorry bearing Regn. No. PY 4-8184. Due to the accident. Claimant sustained serious head injury and fracture at his 6th and 7th ribs, left leg knee, thigh and lacerated injury all over the body. The Claimant was taken to Government Hospital, Erode, where first aid treatment was given and he was referred to a Private Hospital, Erode, for better treatment. Alleging that he sustained injuries arising out of and in the course of employment, the Claimant has filed the Claim Petition under Workmens Compensation Act claiming compensation of Rs. 2,00,000/-. (ii) Opposing the claim, the second respondent-Insurance Co. has filed counter affidavit denying its liability on the ground that there was violation of policy condition as he had driven the vehicle along with two other persons, which is against the policy conditions. It is further alleged that as per the policy only two persons are allowed to travel including the driver, since the vehicle is a Goods Carrier-The Insurance Co. has also denied the age,. occupation, income expenses and loss of income of the Claimant. (iii) Before the Tribunal, Claimant was examined as P.W.1. Dr.Duraisamy was examined as P.W.2. Exhibits A-1 to A-5 were marked. On the side of second respondent-Insurance Co. Copy of Policy was marked as Exhibit R-1. One Kannusamy, Assistant Divisional Manager of second respondent-Insurance Co. was examined as R.W.1. Upon consideration of oral and documentary evidence, the Deputy Commissioner has held that the Claimant sustained injuries during the course of employment. However, the Deputy Commissioner has held that by taking two persons in the Mini Auto, there was violation of policy conditions and therefore, the Insurance Co. is not liable to pay the compensation and only the Employer is to pay compensation to the Claimant. 3. Challenging the impugned order, the learned counsel for the Appellant-Claimant Mr. U. Anandamoorthy has submitted that the second respondent-Insurance Co. is not liable to pay the compensation and only the Employer is to pay compensation to the Claimant. 3. Challenging the impugned order, the learned counsel for the Appellant-Claimant Mr. U. Anandamoorthy has submitted that the second respondent-Insurance Co. cannot escape from its liability to pay the compensation and even if there is violation of policy conditions, the Insurer has to pay the claim and the insurer is entitled to recover the amount from the insured. It was further submitted that workmens right to claim compensation should not be defeated on technical grounds and the protection by way of beneficial legislation like Workmens Compensation Act cannot be allowed to be defeated on technical grounds. 4. Drawing the attention of Court to Insurance Policy, the learned counsel for the second respondent-Insurance Co. Mr. R. Subbiah has submitted that the seat capacity is only two, whereas, three persons travelled in the Mini Auto and when there was deliberate violation of policy conditions, the Insurance Co. is not liable to pay the compensation. 5. Admittedly, the Claimant had valid driving licence to drive the Mini Auto bearing Regn. No. TN-34-6413. It is equally admitted that while he was driving the vehicle in National Highways, the Mini Auto met with the accident and Claimant sustained grievous injuries. The finding that the Claimant sustained injuries arising out of and in the course of employment is unassailable. 6. The main point falling for consideration is, when there was valid Insurance Policy covering the risk, whether the insurer is duty bound to satisfy the claim and whether, there was violation of policy conditions as alleged by the second respondent-Insurance Co. to absolve the Insurance Co. from its liability. 7. Insurance Co. pleaded that the owner of the offending vehicle committed breach of condition of policy and that the vehicle had seating capacity of only two, whereas, the insured has allowed three persons including the driver to travel in the vehicle and as such the Insurance Co. is claiming exoneration of its liability on the ground of breach of condition of the policy. To substantiate the plea that there was violation of policy condition, recitals in Exhibit A-1-F.I.R. is very much relied upon. The seating capacity of the Mini Auto is two. In Exhibit A-1-F.I.R., the Complainant has allegedly stated that after the accident, he saw the auto driver and two other persons with injuries. To substantiate the plea that there was violation of policy condition, recitals in Exhibit A-1-F.I.R. is very much relied upon. The seating capacity of the Mini Auto is two. In Exhibit A-1-F.I.R., the Complainant has allegedly stated that after the accident, he saw the auto driver and two other persons with injuries. On the basis of recitals in Exhibit A-1-F.I.R., it was contended that there was violation of breech of conditions of policy and therefore. Insurance Co. is not liable to indemnify the insured in respect of the liability towards the driver. 8. The question falling for consideration is, whether the Insurance Co, can raise the defence, which is available to it under Motor Vehicles Act in a claim filed by driver for injuries sustained by him during the course of his employment. 9. The driver is covered under Insurance Policy, for which premium of Rs. 15/- was paid for paid drivers/Workman No. 1. Under Section 147 of Motor Vehicles Act in addition to covering Third Party risk, the Insurance Co. must also cover the risk for certain categories of employees mentioned in the Section, so as to meet the requirements of Workmens Compensation Act, 1923. If the employer of a workman has insured his workman with the insurance co. and if the workman sustains bodily injury or death occurs in an accident arising in the course of the employment, the workman is entitled for compensation as per the limit and the insurance co. has only to indemnify the employer for the amount. 10. The question, whether an insurer, while defending an action initiated under the Workmens Compensation Act, 1923 is precluded from raising any defence as envisaged in under sub-section (2) of Section 149 of the Motor Vehicles Act, 1988, came up for consideration before the Supreme Court in National Insurance Co. Ltd. v. Mastan (2006) 1 MLJ 53: 2006 (1) CTC 222, provisions of Motor Vehicles Act, 1988vis-a-visWorkmens Compensation Act, 1923 and after referring to various decisions the Supreme Court has held as under at National Insurance Co. Ltd. v. Mastan p. 58of MLJ: “ 9. Both the 1923 and 1988 Acts are self-contained Codes. Ltd. v. Mastan (2006) 1 MLJ 53: 2006 (1) CTC 222, provisions of Motor Vehicles Act, 1988vis-a-visWorkmens Compensation Act, 1923 and after referring to various decisions the Supreme Court has held as under at National Insurance Co. Ltd. v. Mastan p. 58of MLJ: “ 9. Both the 1923 and 1988 Acts are self-contained Codes. Subject to the provisions made in the later Act, Section 3 of the 1923 Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in terms of the provisions of the said Chapter. Section 4 of the 1923 Act provides for amount of compensation. Section 5 elucidates the method of calculating wages. Section 15-B(ii) provides that the 1923 Act shall apply if the persons have been sent for work abroad along with motor vehicles subject to the modifications mentioned therein. 20. Right of appeal is a creature of statute.e The scope and ambit of an appeal is terms of Section 30 of the 1923 Act and Section 173 of the 1988 Act are distinct and different. They arise under different situations. In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved. Therein what is required to be proved is that the workman suffered injuries or died in course of employment. The nature of compensation would be determined having regard to the nature of injuries suffered by the worker and other facts as specified in the Act. The findings of fact arrived at by the Commissioner for Workmens Compensation are final and binding. Subject to the limitations contained in Section 30 of the 1923 Act, an appeal would be maintainable before the High Court; but to put the insurer to further disadvantage would lead to an incongruous situation. 16. Under the 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act. If the driver of the vehicles has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accident Claims Tribunal, having regard to its rights and liabilities vis-a-visthe third person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. If the driver of the vehicles has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accident Claims Tribunal, having regard to its rights and liabilities vis-a-visthe third person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of Reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortioriin claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts cannot enforce liabilities of the insurer under both the Acts. He has to elect for one.” 11. The Claimant having chosen the forum under the 1923 Act for the purpose of obtaining compensation against his Employer cannot now fall back upon the provisions of the 1988 Act therefor, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by Section 143 thereof. 12. In Ved Prakash Garg v. Premi Devi AIR 1997 SC 3854 : (1997) 8 SCC 1 : (1998) 1 MLJ 17: 1998-I-LLJ-363: 1998 ACJ 1 (SC), the Supreme Court after detailed consideration of the provisions for compulsory insurance, the provisions under Section 147, the provisions of the liability of the insurance company under Section 149 and the provisions of Section 4 of the Workmens Compensation Act has held that while considering the claim petition under workmens compensation Act, it is necessary to refer to the provisions of Motor Vehicles Act as the workmen suffered personal or bodily injury while they were working on motor vehicles of their employers. If they had suffered from any personal injuries during the course of and arising out of the employment while working in the factory premises of the employers or while carrying on their service obligations as employees at any other place under the instruction of the employers, the question of interaction of the Workmans Compensation Act and the Motor vehicles Act would not arise and such claims for compensation would have squarely been governed only by the Workmens Compensation Act. 13. The decisions of the Supreme Court in Ved Prakash Garg v. Premi Devi ( supra) and National Insurance Co. Ltd. v. Mastan (supra) would squarely bring out the manner in which the provisions of Workmens Compensation Act and Motor Vehicles Act have to be construed having regard to the provisions of the Act. As noted earlier, in the present case, since premium was paid, the driver of the Mini Auto is under insurance coverage. When premium has been paid so as to meet the requirements of Workmens Compensation Act is it not open to the insurance co. to raise the defence, which are available to it under Motor Vehicles Act pleading exoneration of its liability on the ground of breach of policy conditionse As the driver suffered personal injuries during the course of and arising out of employment, while he was discharging his service obligations, the compensation payable would be squarely governed by the provisions of Workmans Compensation Act and the insurance co. cannot be absolved of its liability. The learned Deputy Commissioner did not keep in view the statutory obligation of the insurance co. to indemnify the insurer in respect of compensation payable to the driver/workman. The impugned order exonerating the insurance co. from its liability suffers from perversity and vitiated by error of law and the same cannot be sustained. 14. In the result, The Order of the Deputy Commissioner of Labour (Commissioner for Workmens Compensation), Salem-7, dated 28.8.2002 in W.C. No. 310 of 2001, is modified and this Appeal is allowed. It is held that the second respondent-Insurance Co. and the Appellant-Employer are jointly and severally liable to pay the compensation amount of Re. 93,990/- to the Appellant/Claimant along with interest at the rate of 12% p.a. from the date of order of Deputy Commissioner of Labour i. e., 28.8.2002. The second respondent-Insurance Co. It is held that the second respondent-Insurance Co. and the Appellant-Employer are jointly and severally liable to pay the compensation amount of Re. 93,990/- to the Appellant/Claimant along with interest at the rate of 12% p.a. from the date of order of Deputy Commissioner of Labour i. e., 28.8.2002. The second respondent-Insurance Co. is directed to deposit the compensation amount along with accrued interest at the rate of 12% p.a. from the date of petition till the date of deposit within a period of three months from the date of receipt of copy of this order. There is no order as to costs in this Appeal.