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2011 DIGILAW 810 (CAL)

Sukro Munda v. National Insurance Company Ltd.

2011-06-20

AMIT TALUKDAR, SHUKLA KABIR SINHA

body2011
Judgment Talukdar, J. 1. "EXPRESSUM tacit cessare taciturn" (when there is express mention of certain things, then anything not mentioned is excluded) is a maxim, which has been inducted with approval by at least two Constitution Bench decisions in B. Shankar Rao Badamiv. State of Mysore, (1969)3 SCC 637 and Union of India v. Tulshi Ram Patel and Ors., (1985)3 SCC 398 . 2. THIS well-known maxim, is a principle of logic and common sense and not merely a technical rule of construction. In the quagmire of the same, we would be required to demystify the situation, which has centred around these appeals, which have been amalgamated together, as a single point of some legal importance sprouts therefrom. 3. ALL these appeals related to different orders passed by the Commissioners of the Workmen's Compensation Act. Some have been filed on ground of interest, some on the ground of apportionment of disability. What binds all these appeals in a common string, is an offshoot of points raised by Shri Rajesh Singh for one of the Respondents in this bunch of appeals. It is of great importance. 4. HE has pointed out that the Commissioners have awarded the compensation, which was directed to be payable by the Insurance Company at the first instance. His view was that under the Workmen's Compensation Act (hereinafter referred to as the 'said Act'), it is the employer, who shares the initial burden to meet the claim. Thereafter, question of indemnification by the Insurance Company will arise. He also raised the point with regard to the period from which the question of payment of interest would arise and he has also touched the decision of the Supreme Court in Pal flay v. Divisional Controller, NEKRTC reported in (2010)4 TAC 79 (SC). 5. AFTER the previous Division Bench had fixed the Matter for hearing and keeping in mind the question involved, which would have far-reaching impact on matters of similar nature, Shri Soumya Majumdar, learned Counsel was requested by the Division Bench to act as Amicus Curiae. It is thereafter we are in seizin of the entire issue. 6. AS the questions that have been formulated by the Division Bench on 10.03.2011 would touch on all the appeals - they have been clubbed together and are being disposed of by this common judgment after having been heard analogously, which will govern the fate of all of these appeals. 6. AS the questions that have been formulated by the Division Bench on 10.03.2011 would touch on all the appeals - they have been clubbed together and are being disposed of by this common judgment after having been heard analogously, which will govern the fate of all of these appeals. At the Bar, several decisions have been cited mainly on the question of interest and the liability of the Insurance Company to pay the amount when the accident occurs, as the liability of the Company, after it extends the cover of the Insurance Company cannot be avoided. 7. ON the contrary, Shri Singh has based the following points :- He was of the view that according to Section 167 of the said Act, when a person opts for relief under either of the said Act, or the Motor Vehicles Act (hereinafter referred to as 'Act for Short'), he cannot chose both. It has been very seriously contended by him that once the applicant has chosen to be guided by the Workmen's Compensation Act, he is required to abide by the conditions of the same. 8. ACCORDING to Shri Singh, the liability in a claim for compensation under the said Act lies solely on the employer and not at the first instance on the insurer. For this purpose Shri Singh has referred to Section 146 and 147 of the Act for Short. He was of the view that the Insurance Company is mandatorily liable to pay compensation in respect of a claim under the Act for Short, whereas in the said Act, no liability of the Insurance Company or any mention thereof has been made. According to Shri Singh, there is some amount of mandatory element with regard to the payment of compensation in respect of the provisions of Act for Short. For this purpose he has referred to Sections 145,146 and 149 of the Act for Short. 9. SHRI Singh was of the view that in the said Act, there is no liability on the insurer to pay the compensation as the employer cannot be treated as a third party. It is his primary responsibility. He refers to Section 3 of the said Act and submits that it is the liability of the employer to pay compensation to its workmen when accident arises. 10. It is his primary responsibility. He refers to Section 3 of the said Act and submits that it is the liability of the employer to pay compensation to its workmen when accident arises. 10. SHRI Singh pointed out that in the said Act there is no mention of the Insurance Company. According to SHRI Singh, barring Section 14 of the said Act, there is no whisper of the Insurance Company in the scheme of the entire Act itself. Shri Singh has referred to the decisions of the Apex Court in New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya and Anr., (2006)5 SCC 192 and Daddappa and Ors. v. Branch Manager, National Insurance Co. Ltd., 2008 ACJ 581 on the question of payment of interest. 11. SHRI Singh further submitted that after the decision of Pal flay v. Divisional Controller, NEKRTC (supra), the question is no longer res integra. It is the onus of the employer himself to pay the interest. He has read out from the provisions of the Amendment of Section 4A of the said Act and also from Section 4 with regard to the question of quantification of compensation and the calculation of interest and showed from the same that the liability of the Insurance Company has not been indicated. 12. SHRI Soumya Majumdar, learned Amicus, was of immense assistance. In his own inimitable way SHRI Majumdar has very beautifully placed the entire position. Learned Amicus read out from the scheme of the said Act and Act for Short. Learned Amicus showed from the preamble of the said Act that it was aimed to provide payment for certain classes of employer to their workmen of compensation for injury. In other words, learned Amicus showed that it was simply a relation between the employer and his workman, who has suffered an injury in course of his employment and vis-a-vis the liability of the former to compensate him for the same. Whereas learned Amicus pointed out from the preamble of the Act for Short that it was a liability relating to Motor Vehicles. Referring to either of these Acts in its preamble, learned Amicus submitted that the scheme of these two Acts are completely separate and in a way mutually exclusive of each other. Whereas learned Amicus pointed out from the preamble of the Act for Short that it was a liability relating to Motor Vehicles. Referring to either of these Acts in its preamble, learned Amicus submitted that the scheme of these two Acts are completely separate and in a way mutually exclusive of each other. Shri Majumdar, learned Amicus further referred to Section 140 of the Act for Short to illustrate his point that the Act for Short deals with death or permanent disablement whereas in the said Act, the injury of the employees may be partial. As such, he submitted, that there is a dichotomy of the classification of injuries in both the Acts. 13. LEARNED Amicus illustrated the subtle difference in either of the Acts by way of pointing out to the fact that in the Act for Short it is the owner of the vehicle in question whereas in the said Act it is employer. 14. LEARNED Amicus was of the view that the statues operate in two different fields and cannot be mixed with each other. On the question of liability to pay, learned Amicus also submitted that the penalty for default and the question of interest are on different basis. He emphasized his submission on the basis of reference to sub- section (4) of Section 4 of the said Act. 15. SO far as the question of penalty is concerned, learned Amicus submitted it cannot be an automatic fixture. It requires formation of opinion and a conclusion has to be drawn that there is no justification for non payment of the compensation. 16. TO make it more clear, learned Amicus referred to a Full Bench decision of the Orissa High Court in Divisional Manager, New India Assurance Co. Ltd. and Ors. v. Biswanath Barman and Anr., reported in 1997 LAB IC 2262. Learned Amicus showed that in view of Section 4-A(3) of the said Act, when there is delay in payment of compensation-interest and penalty is to be borne by the employer and Insurance Company cannot be made liable. He also referred to a Division Bench decision of the Jammu and Kashmir High Court in United India Insurance Co. v. Ravinder Kumar and Ors., 1998 LAB IC 2283. 17. He also referred to a Division Bench decision of the Jammu and Kashmir High Court in United India Insurance Co. v. Ravinder Kumar and Ors., 1998 LAB IC 2283. 17. HE further referred to two decisions of the Supreme Court M/s. L. R. Ferror Alloys Ltd. v. Mahavir Mahato and Anr., (2001)1 TAC 444 (SC) and in New India Assurance Co. Ltd. v. Harshad Bhai Amrutbhai Modhiya and Anr. (supra) to buttress his point that the insurer, unlike the provisions of the Act for Short, does not have a statutory liability. The insurer shall be liable to indemnify the employer but the initial responsibility of payment is cast on the employer itself and that the question of penalty cannot be borne by the Insurance Company. 18. IN M/s. L.R. Ferror Alloys Ltd. v. Mahavir Mahato and Anr. (supra), the decision of Ved Prakash Garg v. Premi Devi and Ors., (1997)8 SCC 1 was also taken note of. Shri Subir Banerjee appearing with Shri Jayanta Banerjee, Shri Jayanta Kr. Mondal and Shri Amit Ranjan Roy appeared for the various appellants and have questioned the liability of the Insurance Company to avoid its responsibility for payment of interest. 19. MAINLY Shri Roy and Shri Mondal argued on the point that in view of Section 147 of the Act for Short (1st proviso)-the liability of the Insurance Company is not altogether obliterated. While Shri Banik has submitted that in the absence of any Cross Appeal and more so when the award has already been extinguished, it is not open for the Insurance Company to raise this point in course of the appeal of the Claimant. 20. SHRI Banerjee on the other hand, has raised the question of the liability of the Insurance Company to pay on the premises that in such a situation, the Insurance Company would be deemed to be the employer in such cases. Shri Banerjee for the appellant further submitted that as the owner/employer has been insured according to the cover of such policy - it is the bounden duty of the Insurance Company to protect the interest of the insurer and neither of these two Acts show that such liability can be avoided by the Insurance Company. 21. Shri Banerjee for the appellant further submitted that as the owner/employer has been insured according to the cover of such policy - it is the bounden duty of the Insurance Company to protect the interest of the insurer and neither of these two Acts show that such liability can be avoided by the Insurance Company. 21. WITH the assistance received at the Bar and with the auxiliary benefit of the presence of learned Amicus, we would now proceed to decide the question that has fallen for consideration before us. "Via trita via tuta". 22. WE have to traverse a negative terrain off the beaten track from the conventional avenue to reach our El Dorado. In the process we would be cautious, we do not tread on the maxim : JUDICIA posteriora sunt in lega fortiora". In all this batch of appeals, which is after all directed against various orders passed by different Commissioners, are all under the said Act. Direction have been passed by the Commissioners upon the Insurance Company to meet the claim for compensation. This has been found fault with by Shri Singh, whose stand has not been contradicted by his counterpart of the other Companies. It is a question of primordial importance. 23. EVEN if Shri Banik has pointed out that the Companies have not preferred any Cross Appeal, we feel we can look into the point raised by Shri Singh as it is a question of law and there cannot either be any estoppel against the same or we would be precluded from looking into the same suo motu in exercise of our powers as a First Appellate Court while deciding these appeals. 24. IF we shift to the preamble of our order, it would take us to the position that when there is express mention of certain things, then anything not mentioned is excluded. We have to abide by the Latin phrase "expressum facit cessare taciturn", which, in our opinion, has whole scale application in the present case. When there is no mention of the role of the Insurance Company in the. whole scheme of the said Act as rightly pointed out by Shri Singh - question of liability of the Company does not arise. Learned Amicus has very nicely summed up the entire situation by way of referring to the preamble of either of the Acts. Situation is very clear. whole scheme of the said Act as rightly pointed out by Shri Singh - question of liability of the Company does not arise. Learned Amicus has very nicely summed up the entire situation by way of referring to the preamble of either of the Acts. Situation is very clear. While the said Act relates to relation between the employer and his workmen; on the other hand, the Act for Short covers the case of the Motor Vehicles where the third party is the Insurance Company. In the prism of the same the wind out of the sail is taken out. 25. AT once, we would be left with no other option but to reach to the inescapable conclusion that when the Applicant has chosen to opt for being guided by the said Act, he is to tread the path covered by the said Act and cannot midway recuse himself from the contours of the same and take recluse to the Act for Short. 26. SECIION 167 of the Act for Short is very clear. Exercise of option in respect of either of these two Acts is final and it cannot be interposed. Once a person has opted either for the said Act or for the Act for Short - he cannot suffer from any Prisoner's Dilemma. Section 167 of the Act for Short, as have been stressed by Shri Singh that when there is a claim for compensation, both under the Act for Short and the said Act - the person is entitled to compensation under either of these two Acts but not under both. The phrase "under either of those Acts but not under both" has to be understood in the chasm of the word 'either', which signifies that there is a choice but once the choice has been exercised; there cannot be reversal of the same. The principle of ex antecedentibuset consequentibus fit optima interpretatio applies in this situation. The best interpretation of the word 'either' is to be obtained by a consideration of the word which precedes it and what succeeds. It is the rule of construction, which would solve the difficulty in interpretation of the same. 27. The principle of ex antecedentibuset consequentibus fit optima interpretatio applies in this situation. The best interpretation of the word 'either' is to be obtained by a consideration of the word which precedes it and what succeeds. It is the rule of construction, which would solve the difficulty in interpretation of the same. 27. IN our opinion, a shroud of veil has unnecessarily been sought to be created on behalf of the appellants over the issue that Insurance Company is liable to compensate them at the first instance losing sight of the fact that the provisions of the Acts are quite clear and independent of each other. To our mind this question is simply de lana caprina. IN other words, resorted to trivia, which is absolutely without any substance. 28. ACCORDINGLY, sustaining the objection of Shri Singh for the Insurance Company, we hold that in a case under the said Act, the Insurance Company has no primary liability. It is the lis between the employer and the workmen and the Insurance Company is nothing but a hidden agenda in the entire scheme of things. Whereas after the Act for Short, it is the precursor for all claim and there is a legal mandate upon it to extinguish the same. Since we have held that the Insurance Company at the first instance has no liability to meet the award of compensation, we would set aside all the chain of awards that have carved the fortune of these appeals wherein the Insurance Companies were made liable to pay. 29. AS we have concluded on the primary issue, we would not advert to the tenets of the appeals with regard to the question of interest, proportion of disablement and other sundry factors. After remand, these questions would remain open before the Commissioner for decision on a de novo scale. 30. AS a corollary of the same, we have by now formed an opinion that the relief sought for under both the Acts being distinct and different. While in the Act for Short, the Insurance Company has the liability to extinguish the claim-on the other hand, in the said Act, it is the employer and the employer alone, who has to meet the claim. While in the Act for Short, the Insurance Company has the liability to extinguish the claim-on the other hand, in the said Act, it is the employer and the employer alone, who has to meet the claim. Recourse to the said Act by the Claimant in the conventional process, as if it is a case of compensation under the Act for Short is fallible and claim in those two areas vis-a-vis the Employer and the Insurance Company are simply chalk and- cheese. Both cannot be mixed up and award passed by the Commissioner cannot be carried in the fashion as it is done against the finding returned by the Tribunal under the Act for Short. In this situation, it cannot be the same sauce that is for the Goose also made applicable for the Gander. The said Act (The Workmen's Compensation Act, 1923), which has been re-christened in 2009 as The Employee's Compensation Act, 1923, emphasis has been placed on the word 'employers to their workmen' modified by the amendment of 2009 as 'employees'. Responsibility of the employer to protect its workmen and/or employee in fortuitous circumstances is envisaged under the said Act whereas in the Act for Short, it is a liability of the Insurance Company for indemnification of their third party. 31. LEARNED Amicus has spoken of the decisions of the Supreme Court in M/S. L R. Ferror Alloys Ltd. v. Mahavir Mahato and Anr. (supra) and New India Assurance Co. Ltd. v. Harshad Bhai Amrutbhai Modhiya and Anr. (supra) along side the Full Bench decision of the Orissa High Court in Divisional Manager, New India Assurance Co. Ltd. and Ors. v. Biswanath Barman and Anr. (supra) as well as the decision of Jammu and Kashmir High Court in United India Insurance Co. v. Ravinder Kumar and Ors. (supra). In fine, the fall out of the same steals the thunder out of the storm, which has been sought to be raised at the behest of the appellants for reasons more than one, which we have noticed. 32. v. Ravinder Kumar and Ors. (supra). In fine, the fall out of the same steals the thunder out of the storm, which has been sought to be raised at the behest of the appellants for reasons more than one, which we have noticed. 32. REFERENCE made at the Bar by Shri Banerjee, Shri Banik, Shri Mondal, and Shri Roy for the various appellants on the decisions in their respective propositions have not been discussed by us for the reason' that we have found fault with the system itself whereby we have been unable to accept the award hoisted upon the Insurance Company and as we have decided to relegate the same before the Commissioner on an open Remand; the said decisions which are on interpretation of Section 4A of the said Act are not being adverted to by us being kept alive before the Commissioner. In view of the fact that the very maintainability of the orders passed by the Commissioners have been scuttled by us on account of the fact that direction upon Insurance Company to meet the compensation was not correct automatically, the orders under appeal would have no force and are required to be set aside after being send on remand". Necessarily, we will not enter into another ancillary points which have been canvassed at the Bar on the question of date of payment of interest, liability of meeting the penalty which remains for adjudication after the matter is send on remand. 33. LEARNED Registrar would sort out the bunch of appeals and transmit the File to the respective Commissioners along with a copy of this Judgment, who upon receipt of the same, would conduct a de novo exercise and conclude the proceedings within a period of thirty days from the date of communication of this order without being guided by the disposal of the appeals, which is simply restricted on the proposition of law that we have discussed and it should be understood that we have not entered into the merits as raised at the Bar which would remain open for decision before the Commissioner. 34. WHILE saying omega, we are practically, at a loss of words for expressing our appreciation of the wonderful assistance rendered by Shri Soumya Majumdar as learned Amicus in this Matter. Perhaps, without his assistance we would not have covered the issue. 34. WHILE saying omega, we are practically, at a loss of words for expressing our appreciation of the wonderful assistance rendered by Shri Soumya Majumdar as learned Amicus in this Matter. Perhaps, without his assistance we would not have covered the issue. We record our deepest admiration of the manner in which Shri Majumdar, learned Amicus has helped us to resolve the crisis.