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2009 DIGILAW 453 (JK)

New India Assurance Co. Ltd. v. Jasveer Kour

2009-09-15

J.P.SINGH

body2009
1. S. Hardev Singh, employed as driver with M/s Century Carriers and Bus Operators was driving a Goods Carriage bearing Registration No. JKU-2218 from Srinagar to Jammu, when it rolled down at Baish Ladi Nallah, near Magar Kote resulting into his death because of the injuries sustained in the accident. 2. Jasveer Kour, his widow, Hartaj Singh, his minor son and Surjeet Kour, his minor daughter, filed a Compensation Claim for Hardev Singhs death, with the Commissioner under the Workmens Compensation Act, 1923, Jammu, hereinafter to be referred as the "Act", for short. 3. M/s Century Carriers and Bus Operators had entered into an Agreement on March 19, 2005 with the Small Scale Industrial Development Corporation, Jammu, SICOP, for short, in terms whereof, the SICOP was admitted to be the Registered Owner of the vehicle, which M/s Century Carriers and Bus Operators had to ply for carriage of SICOPs material, in accordance with the terms of the Agreement aforementioned. 4. The SICOP, accordingly, got the goods carriage insured with the New India Assurance Company Limited against losses, which included the liability of two employees under the Act. 5. The claim lodged by the dependants of S. Hardev Singh, contested by the Insurance Company, was adjudicated upon by the Commissioner, on the basis of the claimants evidence alone, as the Insurance Company had opted not to produce any evidence in the case, on the issues which read thus:- 1. Whether the deceased was a workman within the definition of Workman Compensation Act, 1923? OPP 2. Whether the deceased met with an accident during and in the course of employment with respondent no. 1?OPP 3. What were the wages and the age of the deceased at the time of death? 4. Relief. ADDITIONAL ISSUES:- 1. Whether there is no privity of Contract between respondent no.l and respondent no.3? 2. Whether the respondent no.3 is not liable to satisfy the Award and Petition against respondent no.3 is not maintainable? 3. Whether respondent no.3 is not liable to pay interest? 6. Allowing the claim, the Commissioner determined Rs. 3,26,000/- along with interest @ 7% per annum as compensation for the death of S. Hardev Singh, to the claimants, taking the monthly income of the deceased at Rs. 4000/-. 3. Whether respondent no.3 is not liable to pay interest? 6. Allowing the claim, the Commissioner determined Rs. 3,26,000/- along with interest @ 7% per annum as compensation for the death of S. Hardev Singh, to the claimants, taking the monthly income of the deceased at Rs. 4000/-. Relying on Paragraph 7 of the Agreement entered into by the proprietor of M/s Century Carriers and Bus Operators, with the SICOP, which had inter alia provided that in case of any accident of the vehicle or third party claim, the Insurance Claim would be paid by the Insurance Company to the SICOP, which in turn shall be paid to the second party, in full, the Commissioner directed the Insurance Company to satisfy the Award indemnifying the SICOP, the Registered Owner, of the vehicle. 7. Aggrieved by the aforementioned Award dated 28.02.2008 of the Commissioner, the Insurance Company has filed this Appeal seeking its setting aside. 8. Referring to Rajasthan State Road Transport Corporation v. Kailash Nath Kothari & Ors., reported as (1997) 7 SCC 481, National Insurance Co. Ltd. v. Deepa Devi and Ors., reported as 2007 (8) Supreme 554, National Insurance Co. Ltd. v. Mastan & anr., reported as AIR 2006 SC 577, the appellants learned counsel submits that the Commissioners Award was bad in law, in that, there being no jural relationship of Master and Servant between the deceased and the SICOP, the Commissioner under the Workmens Compensation Act, had no jurisdictional competence to entertain and allow the respondents claim directing the appellant, to indemnify the SICOP. 9. Per contra, the claimants counsel relies on Zila Sahakari Kendra Bank Maryadit v. Shahjadi Begum & Ors., reported as 2006 AIR SCW 5432, to urge that the definition of the Employer, appearing in Section 2 (e) of the Act was wide enough to include SICOP in its fold, and that the claim of compensation allowed by the Commissioner, fell within the parameters of jurisdiction under the Act. 10. I have considered the submissions of learned counsel for the parties. 11. Before coming to the question canvassed at the Bar, it shall be profitable to refer to some of the Clauses of the Agreement which the proprietor of M/s Century Carriers and Bus Operators had executed with the SICOP. These read thus:- "1(b). The party of the second part has already provided Truck no. 11. Before coming to the question canvassed at the Bar, it shall be profitable to refer to some of the Clauses of the Agreement which the proprietor of M/s Century Carriers and Bus Operators had executed with the SICOP. These read thus:- "1(b). The party of the second part has already provided Truck no. JKU-2218 which stand registered in the name of SICOP. The permit also stands in the name of SICOP. 7. That the vehicle shall remain at the disposal of SICOP for day and night service and shall remain parked in the premises of SICOP but the driver and the cleaner shall not be allowed to stay in the premises. No charges on account of haltage shall be paid by SICOP under any circumstances whatsoever. The Vehicle shall operate on the instruction of SICOP management. The total security of the material shall be the liability of the second party who shall be liable to deliver material in full for each truck load. Truck being in the name of SICOP shall form guarantee towards the safety of material. If at any stage, material is lost or sold or pilfered and the party of the second part fails to pay the damages, SICOP shall be at liberty to sell the vehicle and make good the loss. 8. Proper Log Book shall, be maintained to regulate the movement of the truck and to keep the proper records of its movement, which shall form the basis for freight payment. 7. In case of any accident of the vehicle or third party claim, Insurance claim shall be paid by the Insurance Company to SICOP, which in turn shall be paid to the second party in full. In case of any third party claim on SICOP, it shall be the entire responsibility of the second party. Should the second party fail to clear the third party claims, on SICOP against the said truck within reasonable time, SICOP shall be at liberty to sell the truck to liquidate such liability incurred on account of the said truck." 12. In case of any third party claim on SICOP, it shall be the entire responsibility of the second party. Should the second party fail to clear the third party claims, on SICOP against the said truck within reasonable time, SICOP shall be at liberty to sell the truck to liquidate such liability incurred on account of the said truck." 12. Perusal of the aforementioned Clauses of the Agreement clearly demonstrates that, though employed by M/s Century Carriers and Bus Operators, the deceased driver, who is included in the definition of the `Workman as defined under Section 2(n) of the Act, was temporarily working under the overall control of the SICOP, and in this view of the matter, excluding SICOP from the definition of the `Employer, would lead to restrictive construction of the expression `Employer appearing wisdom, does not appear to have so intended. Liberal construction of the expression `Employer is, however, otherwise amply demonstrated by various provisions of the Act aimed at providing a speedier remedy to the workman to claim compensation, for the injury received by him during the course of his employment, and in case of the death, for compensation to his legal heirs, under the Act. I, therefore, do not find any merit in the appellants counsels submission that there was no relationship of Master and servant between the SICOP and the deceased-driver, 13. That apart, there being no dispute between the parties to the appeal, that the SICOP, being the Registered Owner of the Vehicle, insured with the appellants Insurance Company, had been controlling the operation of the Goods Carriage, attached with the SICOP for its use, inter alia, for the carriage of its material to various destinations; the respondents claim against the SICOP and the Insurance Company, was even otherwise within the jurisdiction of the Commissioner, in view of the provisions of Section 12 of the Act, which is reproduced hereunder, for facility of reference, in terms whereof, even if one were to consider that there was no relationship of Master and Servant between the SICOP and the deceased-workman, (which, however, is not the position in the present case), the SICOP, being the principal employer, would be liable to satisfy the claim arising out of the death of the workman. Section 12 of the Act reads thus:- "12. Section 12 of the Act reads thus:- "12. Contracting -(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employer by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer whom he is immediately employed. (2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor [ or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation] and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner. (3) Nothing in this section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal. (4) This section shall not apply in any case where the accident occurred elsewhere that on, in or about the premises on which the principal has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management." 14. The judgments cited by the appellants learned counsel are distinguishable and do not apply to the case in hand. 15. Situated thus, the appellant cannot avoid its liability to satisfy the respondents claim. 16. Found to be without any merit, this appeal is, accordingly, dismissed.