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2012 DIGILAW 132 (KAR)

Divisional Manager v. Susheelamma

2012-02-16

B.V.PINTO, D.V.SHYLENDRA KUMAR

body2012
Judgment :- Shylendra Kumar, J. 1. This appeal is a typical example of the most cantankerous and irresponsible manner in which the nationalized Insurance Companies function in our Country. 2. In the present appeal, the New India Assurance Co. Ltd., was the insurer providing cover to the owner of a lorry bearing Reg.No.Ka-37/5426, owner by name, Mahmad Hussain Mehboob Sah, has been arrayed as respondent No.6 in this appeal and the policy is issued by the Insurance Company in favour of the said owner, which has covered the risks of the insured not only in respect of the claim under the Motor Vehicle Act, but also claims arising out of the Workmen’s Compensation Act, 1923 [for short, the Act]. 3. The driver of the vehicle had died on 17.03.2006 while in the course of employment, but not exactly while driving the vehicle. In respect of this incident, a claim application seeking for compensation had been filed before the Commissioner of Workmen’s Compensation, Bellary Division, Davanagere. The Commissioner in terms of his order dated 05.02.2007, allowed the claim petition in part and awarded a sum of Rs.3,11,055/- as compensation, which reads as under:- (LANGUAGE) 4. The application filed by the legal heirs of the deceased persons showed the owner as respondent No.1, and the present Insurance Company as respondent No.2. The application resulted in the order and award dated 05.02.2007 determining the compensation of Rs.2,85,372/- payable with interest at 12% from the date of the death of the person till the date of the order. In all totaling Rs.3,11,055/-. 5. It is against this order and award the present appeal by the Insurance Company under Section 30(1)(a) and 30(1)(aa) of the Act. 6. There is a delay of 53 days in preferring the appeal. An application is filed seeking for condonation of delay. 7. In all totaling Rs.3,11,055/-. 5. It is against this order and award the present appeal by the Insurance Company under Section 30(1)(a) and 30(1)(aa) of the Act. 6. There is a delay of 53 days in preferring the appeal. An application is filed seeking for condonation of delay. 7. Another application for permission to deposit is made and submission of Sri N.R. Kuppelur, Learned Counsel appearing for the Insurance Company is that the appellant has deposited the amount before this Court instead of depositing the amount before the Commissioner who passed the order as required in terms of second proviso to Section 30 of the Act, reading as under:- Section: 30, Appeals:(1)An appeal shall lie to the High Court from the following orders of a Commissioner, namely:- Xxxx Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties: Xxxx Notice had been issued to the respondents in the appeal on the application as per order dated 27.08.2007. 8. However, the appeal has not made much progress thereafter for one reason or the other, but mainly due to the fact that respondent No.6 owner of the vehicle has not been served etc. 9. In the interregnum, an effort made by the claimants/dependents of the deceased person for withdrawing the amount said to have been deposited before this Court was resisted by the Insurance Company and this Court passed the following order on 16.09.2011:- “So far as the withdrawal of the amount, Learned Counsel for the appellant submits that the very liability of the Insurance Company is denied as the cause of death was not the employment injury but it was heart attack. In that view of the matter, there cannot be any direction for withdrawal of the amount: So far as R-6 is concerned, the appellant is directed to take steps to R-6 within two weeks finally, failing which the appeal stands dismissed against R-6 without reference to Court.” 10. It is only after this Court passed this order dated 16.09.2011, the appellant has taken steps and made serious efforts to serve notice on respondent No.6, now represented by Sri. Gode Nagaraja, Advocate. Respondents No.1 to 5 are the claimants who are represented by counsel Sri. Shivraj Hiremath. 11. It is only after this Court passed this order dated 16.09.2011, the appellant has taken steps and made serious efforts to serve notice on respondent No.6, now represented by Sri. Gode Nagaraja, Advocate. Respondents No.1 to 5 are the claimants who are represented by counsel Sri. Shivraj Hiremath. 11. This appeal not merely deserves to be dismissed right away but only after mulcting the appellant Insurance Company with commensurate costs, as it reveals, the manner in which the National Insurance Companies functioning in our country. 12. In the first instance, the Insurance Company acts as any other private cantankerous litigants taking one or other technical objections and avoiding making payments to the persons to whom payments are required to be made, failing in their assurance given to the insurer under the policy covering the liability of the insured, though have collected the premium for issuing the policy. 13. Though it is submitted that the Insurance Company has preferred the appeal because it is disputing its liability and for a good measure Sri. N.R. Kuppelur, learned Counsel relies upon the judgment of the Hon’ble Supreme Court in the case of Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali and another reported in 2007 ACJ 1 , to submit that unless the death of the employee is attributable to stress and strain of the work, if not involved in an actual incident accidental, we are least impressed by the submission for the reason that in the present case, the appeal does not reach this stage, being an untenable appeal. 14. The appeal is in the first instance is not maintainable before this Court without being accompanied by a certificate issued by the Commissioner that the amount has been deposited before him as per the requirements in the proviso-2 of Section 30 quoted above. 15. Deposit before this Court is of no consequence as that is not the requirement of law. Moreover, the object of the Act is to ensure that some relief is provided to the injured workmen or the dependents of an employee who died in the course of employment. A deposit before this Court and resistance on the part of the claimants/dependents to withdraw the amount by the Insurance Company only betrays the most cantankerous attitude on the part of the appellant Insurance Company. 16. A deposit before this Court and resistance on the part of the claimants/dependents to withdraw the amount by the Insurance Company only betrays the most cantankerous attitude on the part of the appellant Insurance Company. 16. Though there was an initial delay of 53 days, the manner in which the appellant has prosecuted this appeal and the appeal is yet to see the light of the day for admission, yet again betrays the careless and negligent manner in which the appellant Insurance Company functions, even an attitude of arrogance, vis-à-vis., poor hapless dependents of an employee who died during the course of employment. In such circumstances, the delay cannot be considered to be mere 53 days, as when the appeal was presented but all the delay after this point of time gets added to that. The matter is kept pending even without admission for more than 5 years after the filing of the appeal. In the circumstances, we do not find any justification at all even to condone the delay in this untenable appeal. Appeal is therefore dismissed, as not merely barred by time but also as not one tenable in law. 17. The amount said to have been deposited before this Court is of no use insofar as the claimants are concerned, as the amount has not reached so far and therefore, the Insurance Company is required to calculate the interest from the date of the order of the Commissioner upto date and make the balance payable to the claimants in terms of the award of the Commissioner after deducting the amount deposited before this Court, which the claimants are permitted to withdraw the amount. Balance amount to be deposited before the employee’s Compensation Commissioner, Bellary, Division, Davanagere within four weeks from today.