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2012 DIGILAW 231 (JK)

National Insurance Co. Ltd. v. Yog Raj and Ors.

2012-05-09

MUZAFFAR HUSSAIN ATTAR

body2012
A claim petition was filed before the Authority under the Workmen s Compensation Act, 1923, Assistant Labour Commissioner (for short, ALC) wherein it was stated that on 06.04.2004, the claimant respondent during and in the course of his employment with respondent no.2, while unloading G.C. Tin Sheets from Tipper No.2567-JK02V, sustained injury on his left ankle joint which got fractured. It was also stated that at the time of the accident, the age of applicant was 21 years and that the injury which he sustained rendered him permanently disabled and he has lost his earning capacity by 50%. In the petition, notices were issued to appellant as well as respondent no.1. The appellant filed objections in which following stand was taken at para 4 under the captioned preliminary objections: 4. That the replying respondent is not liable to indemnify the owner of the vehicle as the vehicle in question was not insured with replying respondent at the time of alleged accident. The alleged accident has taken place on 6th of April, 2004 whereas as per cover not attached the vehicle no.JK02v 2567 was insured from 5.3.2005 to 4.3.2006. After conclusion of the inquiry, the ALC passed the award on 28.07.2007 and directed the appellant to deposit an amount of Rs.1,95,000/- (Rupees one lac and ninety five thousands only) on the ground that the appellant being the Insurance Company is liable to indemnify the owner respondent no.1. The appellant was also directed to deposit the awarded amount within 30 days from the date of pronouncement of the award and it was also provided that in case, the directions were not complied with, the award amount will be recovered as prescribed under Workmen s Compensation Act, 1923 (for short, the Act of 1923). The award is called in question in this appeal by the Insurance Company. Learned counsel for the appellants submitted that a specific objection was taken before the ALC that the vehicle was not insured with the respondent no.1 and there was no privity of contract with the respondent no.1, so the Insurance Company was not liable to indemnify the respondent no.1. Learned counsel for the appellants submitted that a specific objection was taken before the ALC that the vehicle was not insured with the respondent no.1 and there was no privity of contract with the respondent no.1, so the Insurance Company was not liable to indemnify the respondent no.1. Learned counsel also submitted that the evidence of Medical Officer who has entered into the witness box and has certified about the injury sustained by the respondent no.1 and disability suffered by him could not be taken into consideration as the ALC had to wait for a minimum period of nine months. Learned counsel for the appellant in support of his contentions referred to and relied upon the judgment in case titled Ghulam Hassan Vs. Divisional Manager J&K State Forest Corporation, Doda reported in 2003(1) JKJ 698 (HC), to indicate as to what substantial questions of law would mean in the facts of this case. The Workmen s Compensation Act, 1923 is beneficial legislation. Legislatures in their wisdom, in order to ensure that benefits available in law reach to the aggrieved persons without any delay, have made the appeal provision stringent, inasmuch as, in order to make the appeal competent, it has been provided under Section 30 of the Act of 1923 that no appeal would lie against any order unless a substantial question of law is involved in the appeal. The appeal, thus, has to be entertained and admitted for hearing on substantial question of law. In the case in hand, the respondent no.1 has admitted the claim of the respondent no.2 in its entirety. The submission of the learned counsel for the appellant that there was no privity of contract with the respondent no.1, is not the stand taken by the appellants in their objections before the ALC. What is stated is that at the time of the alleged accident, the vehicle was not insured with the appellant Insurance Company. As a matter of fact, the stand taken by the appellant before the ALC has to be taken note of and the stand taken in the appeal before this Court cannot be accepted on issue of fact. Such a mode cannot be adopted as is not permissible under law. If the stand other than one taken before the ALC is allowed to be raised and accepted by the Court, the valuable rights available to the respondents would be infringed. Such a mode cannot be adopted as is not permissible under law. If the stand other than one taken before the ALC is allowed to be raised and accepted by the Court, the valuable rights available to the respondents would be infringed. The law of pleadings would not permit this Court to allow the appellants to take complete U-turn on issue of fact in this appeal, and would not be permitted to wriggle out of the stand taken before the ALC. The Doctor has appeared as a witness before the ALC and it is stated that on examination, he found that the claimant-respondent no.1 has multiple healed scars on left ankle joint with fracture dislocation of the said joint. The Doctor has also deposed that there was swelling of the injured/affected area of the joint because of malunited fracture of the joint and further stated that the respondent is unable to walk without crutches and cannot bear the whole body weight on the left limb. The Doctor opined that the claimant has become disabled for performing heavy laborious work more than 80% and is permanently disabled. In the cross examination, the Doctor stated that the claimant is unable to perform heavy laborious work and for this reason, the claimant has lost 100% earning capacity. The Doctor further stated that his opinion is based on the clinical examination and as well as the record shown to him. The ALC has considered the evidence recorded and passed the award. The judgment in Ghulam Hassan s case (Supra) is not applicable to the facts of this case as in that case the Doctor had examined the injured claimant after three years of accident. The Doctor in that case was neither certain nor definite whether the injury sustained related to the accident in question. On facts, there being material difference between two cases, the judgment referred to, thus, would not be applicable to the facts of this case. The another judgment reported in 2011 (3) JKJ 193 (HC) referred to by the learned counsel for the appellant is not be applicable again to the facts of this case as ALC in that case in perfunctory manner had passed the award without referring to and dealing with the evidence. In this case, the evidence has been referred to and dealt with. In this case, the evidence has been referred to and dealt with. For the above said reasons, it is held that no substantial question of law is involved in this case, therefore, the appeal stands dismissed. After dictating the order in the open Court, learned counsel for the appellant submitted that the interest has to be given on the awarded amount in accordance with Section 4(a) of the Act of 1923. Learned counsel in this behalf referred to the judgment of the Supreme Court reported in 2010(10) SCC 347 and submitted that the interest is to be ordered to be paid in view of the law laid down hereinabove. The ALC while making the payment to the claimant shall comply with the mandate contained in the aforementioned judgment of the Supreme Court. Record be sent back.