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2012 DIGILAW 1830 (MAD)

N. Muthu Gounder v. Paramasivam (dead)

2012-04-10

K.CHANDRU

body2012
Judgment :- 1. The writ petition is filed by the petitioner, who is the owner of the vehicle. In this writ petition, the petitioner challenges an order passed by the sixth respondent/Commissioner of Workmen's Compensation-cum-Deputy Commissioner of Labour, Salem in W.C.No.242 of 2003, dated 26.12.2006. By the aforesaid order, the Commissioner held that the liability for paying compensation only rests with the petitioner and not with the fifth respondent/insurance company. The Commissioner also held that the deceased Ravi @ Periyasamy was employed in the bore drilling lorry, whereas the accident took place in the support lorry with registration number TN-4-C-8917 and so long as it was not established that the deceased Ravi @ Periyasamy was employed in the support lorry, the liability cannot be fastened on the insurance company. 2.1. In the present case, the legal heirs of the deceased Ravi filed a compensation case before the sixth respondent claiming compensation against the petitioner. The insurance company was also made a party second respondent. In the said W.C.No.242 of 2002, it was stated by them that on 26.2.2003 when the support vehicle was brought on a reverse direction, the said Ravi @ Periyasamy was hit by the lorry and the back wheel of the lorry ran over him and he died on the spot. A case was registered on the file of T.Kallupatti Police Station in Crime No.37 of 2003 on the same day. The criminal case was also pending trial before the criminal court. In fact, in the application filed for compensation, it was the assertion of the legal heirs of the deceased Ravi that he was a bore driller in the said vehicle which belonged to the petitioner. 2.2. The Commissioner issued notice to the petitioner as well as the insurance company. However, the petitioner did not file any written statement and hence, he was set ex parte. Insofar as the insurance company was concerned, they contended that there was no relationship of master and servant and it is for him to prove the real employer. In any event, the insurance company is not liable to pay compensation in terms of Clause 37 of the insurance policy. 2.3. The Commissioner, after recording evidence, by an order dated 18.10.2004 directed a compensation of ` 3,04,411/- together with funeral expenses of ` 2,500/-to be paid by the petitioner. In any event, the insurance company is not liable to pay compensation in terms of Clause 37 of the insurance policy. 2.3. The Commissioner, after recording evidence, by an order dated 18.10.2004 directed a compensation of ` 3,04,411/- together with funeral expenses of ` 2,500/-to be paid by the petitioner. Before the Commissioner, the original first respondent/Paramasivam, who died during the course of the proceedings, was examined as P.W.1 and eight documents were filed and marked as Exx.P1 to P8. On the side of the insurance company as well as the petitioner, no documents were produced and no oral evidence was let in. 2.4. It was thereafter the petitioner sent an objection statement dated 29.6.2005 contending that as per the Motor Vehicle Insurance Policy, the insurance company should pay the amount. The Commissioner, upon receipt of the objection statement, passed the present impugned order and held that it is the liability of the petitioner and not that of the insurance company. In the objection statement filed by the petitioner, neither the accident nor the death was disputed. 3. Instead of challenging the orders passed by the Commissioner dated 18.10.2004 and 26.12.2006 in appeal under Section 30 of the Workmen's Compensation Act before this Court, the petitioner came to this Court by contending that it was wrong on the part of the Commissioner to fix the liability on the petitioner, especially when the vehicle was insured. It was in that premises the writ petition was admitted on 16.3.2007. Pending the writ petition, in M.P.No.1 of 2007, the petitioner was directed to deposit 50% of the award amount to the credit of W.C.No.242 of 2003. It was thereafter the legal heirs of the deceased Ravi filed applications in M.P.Nos.1 and 2 of 2008 seeking to vacate the interim order and to permit them to withdraw the amount. This Court disposed of both the applications by a common order dated 2.12.2008 and made the stay absolute by permitting the legal heirs of the deceased Ravi to withdraw 50% of the amount already deposited and directed the remaining amount to be deposited in a nationalized bank for a period of two years and legal heirs were permitted to withdraw the interest once in a semester. 4. When the matter came up on 30.3.2012, it was pointed out by the Registry that the first respondent is no more and no steps have been taken. 4. When the matter came up on 30.3.2012, it was pointed out by the Registry that the first respondent is no more and no steps have been taken. Mr.M.Palani, thereafter filed a memo dated 31.3.2012 stating that the legal heirs of late Paramasivan, namely the first respondent, are already on record in the writ petition as respondents 2 to 4 and, therefore, there is no further requirement of making them as party. The said memo was taken on file. 5. In the meantime, the fifth respondent/insurance company has filed a counter affidavit dated 14.6.2011. In the counter affidavit, in paragraphs 4 and 5 it was averred as follows: "4. It is further submitted that the deceased was admittedly only employed as driller in Rig Lorry KA 01 MF 2499. He cannot be considered employee in 2 vehicles by calling it a supporting Lorry TN 04 C 8917 which was insured with this Respondent. The deceased cannot be considered a workman under the employment in supporting Lorry. Thus the death has not arisen out of and in the course of employment of deceased in the supporting in order to maintain a claim Workmen Compensation Act. In such a case this Respondent, the insurer of supporting lorry cannot be held liable for the death of the deceased. 5. The various contentions raised in the petition are specifically denied. The averments in paras a) to j) of the grounds in the petition are all self-serving allegations and specifically denied. The allegation in para k of the petition that since comprehensive policy has been issued by the 5th respondent, it is liable to make payment is specifically denied. Since the claim is made under Workmen Compensation Act deceased should be employed in the supporting lorry which is insured with this Respondent and death should arise out of and in the course his employment in supporting lorry. As the deceased was not employed in the supporting lorry, the 5th respondent insurance company is not liable notwithstanding the fact that the comprehensive policy has been issued." 6. It must be noted that before the Commissioner no evidence was let in by the petitioner. As the deceased was not employed in the supporting lorry, the 5th respondent insurance company is not liable notwithstanding the fact that the comprehensive policy has been issued." 6. It must be noted that before the Commissioner no evidence was let in by the petitioner. Subsequently, when an attempt was made to reopen the case for fixing the liability on the insurance company, the same was rejected by the Commissioner by holding that there was no proof that the deceased Ravi was engaged in the support vehicle and he was also insured by the policy. In that view of the matter, this Court is not inclined to upset the finding rendered by the Commissioner. Further, the petitioner has not satisfactorily explained as to why no appeal has been filed against the award passed by the Commissioner. This Court in more than one judgment has held that the writ petition is not maintainable when statutory appeal is available. In view of the above, the writ petition stands dismissed. In view of the dismissal, respondents 2 to 4 are entitled to withdraw the deposit amount together with interest lying in deposit with the Commissioner and also claim the balance from the petitioner by having recourse to the provisions of the Act. However, there will be no order as to costs.