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Rajasthan High Court · body

2012 DIGILAW 1061 (RAJ)

National Insurance Co. Ltd. v. Bhanwari Devi

2012-04-25

VINEET KOTHARI

body2012
JUDGMENT 1. - The present appeal is directed against the judgment and award dated 30.6.2011 passed by the learned Workmen Compensation Commissioner in WC Case No.5/2009 whereby the learned Workmen Compensation Commissioner has awarded compensation of Rs. 3,95,120/- to the respondents - claimants. 2. The deceased employee Om Prakash was working as driver under the employment of respondent No.6. While driving the vehicle No.RJ19/1G/8190 of respondent No.6, he met with an accident on 17.10.2004 and died. 3. The only ground raised by the appellant - Insurance Company against the award of the Workmen Compensation Commissioner on 30.6.2011 in claim case No.5/2009 is that the claimants Bhanwari Devi and ors., legal representatives of deceased Om Prakash, employee had approached the learned Motor Accident Claims Tribunal vide Motor Claim Case No.19/2008- under Section 163A of the Motor Vehicles Act, which came to be dismissed as not maintainable vide order dated 25.11.2008 and the learned Tribunal held that the said claim was not maintainable since the income of the deceased - employee was more than Rs. 40,000/- per annum, cut off prescribed in the Second Schedule to the said Act. Therefore, the claim under the Workmen Compensation Act could not be filed at all. 4. The learned counsel for the appellant - Insurance Company, Mr. Jagdish Vyas, submitted that Sub-Section (5) of Section 3 of the Workmen's Compensation Act, 1923 provides that nothing contained under this Act shall be deemed to confer any right to compensation on a workman in respect of any injury if he has 'instituted' in a Civil Court, a suit for damages in respect of the injury or damages for death. He emphasised the word " instituted" under the said provision and submitted that since the Motor Accident Claim was instituted before the learned Motor Accident Claims Tribunal and was dismissed as not maintainable, still the present claim before the Workmen Compensation Commissioner under the provisions of Workmen Compensation Act, 1923 shall be barred. He also submitted that the claim was filed before the Workmen Compensation Commissioner after the delay of 3 and 1/2 years, therefore, this delay could not be condoned by the learned Workmen Compensation Commissioner and in any case, the interest for delay in payment of compensation cannot be reimbursed to the insured employer by the appellant Insurance Company under the insurance contract. 5. 5. Having heard the learned counsel for the appellant Insurance Company, this Court is satisfied that the learned Workmen Compensation Commissioner has rightly rejected these objections of the appellant - Insurance Company and condoned the delay on the ground that since the claimants were pursuing the remedy before the Motor Accident Claims Tribunal, therefore, delay which occurred in filing the present claim under the provisions of Workmen's Compensation Act was justified and could be condoned. 6. In the opinion of this Court, Section 3(5) of the Workmen Compensation Act also does not bar a claim petition filed under the provisions of this Act. Dismissal of motor accident claim as not maintainable irrespective of justification or otherwise of the said order, the fact remains that the said claim petition was dismissed as not maintainable by the Motor Accident Claims Tribunal. The claimants failed to get any fruits of that litigation before the learned Motor Accident Claimants Tribunal. Having been returned without any result before the said Tribunal, mere 'institution' of the Motor Accident Claim case in the Tribunal, cannot bar this remedy under the Workmen Compensation Act. In order to create effective bar, remedy availed earlier by the claimants must be effective and fruitful. Dismissal of claim petition as not maintainable cannot operate as res judicata or a bar in instituting or filing the present claim petition under the provisions of Workmen Compensation Act, 1923. The word "instituted" has to be harmoniously construed. In these circumstances, the learned Workmen Compensation Commissioner has rightly over-ruled the objections of the appellant - Insurance Company. This Court finds no ground to interfere with the said award for the same reasons. The appellant Insurance Company has been admittedly called upon to discharge its obligation under the insurance contract only once and not twice over. 7. The condonation of delay by the Workmen Compensation Commissioner was also justified in these circumstances. As far as payment of interest is concerned, as per the provisions of Section 4A of the Workmen Compensation Act, the same is automatic and in the case of delay in payment of compensation after one month of the date when it becomes due viz. the date of accident, the liability to pay interest is automatic and under the insurance contract, liability of the appellant - Insurance Company to reimburse the same also flows from the said contract. the date of accident, the liability to pay interest is automatic and under the insurance contract, liability of the appellant - Insurance Company to reimburse the same also flows from the said contract. No valid exception to the same can be taken. Had it been a case of penalty under Section 4A(3) of the Act, the position could have been different, but interest is a natural attachment of the amount of compensation on delay in payment of compensation to the claimants 8. Consequently, this Court finds no force in the present appeal of the Insurance Company and the same is accordingly dismissed. No order as to costs. A copy of this order be sent to the opposite party as well as the concerned Motor Accident Claims Tribunal forthwith.Appeal dismissed. *******