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2012 DIGILAW 270 (CAL)

Murahi Devi v. New India Assurance Co Ltd.

2012-03-30

ASHIM KUMAR BANERJEE, SHUKLA KABIR SINHA

body2012
Judgment ASHIM KUMAR BANERJEE, J. 1. VICTIM was a driver driving vehicle no.NL-05/A-8283 belonged to one Sangeet Kumar Mishra, the respondent no.2 above named. He died in the accident on February 10, 2000 at the age of thirty-seven years 2 while driving the said vehicle. He was drawing a salary of rupees three thousand five hundred per month. The Insurance Company contested the claim by filing written statement. According to them, the policy of insurance did not conclusively prove that the vehicle had been insured. The chesis and engine numbers were mentioned, however vehicle number was not given and in absence of Blue Book, chesis and engine number could not be tallied. Moreover there had been interpolation on the policy of insurance that raised doubt and suspicion. The Tribunal rejected such contention and held the claim application maintainable. The Tribunal awarded rupees one lakh ninety-two thousand one hundred and forty as lumpsum compensation. The Tribunal held the owner being the employer primarily and solely liable to pay the compensation. The owner accepted the decision and did not prefer any appeal. So was the Insurance Company. The claimants however were not happy with the award. The claimants filed the appeal on the ground that the insurance policy did cover the vehicle in question and the Insurance Company was liable to pay the compensation. The 3 claimants were also unhappy as the Tribunal did not award any interest. 2. WE have heard Mr. Krishanu Banik, learned counsel appearing for the appellant and Mr. Parimal Pahari, learned counsel appearing for the Insurance Company. Mr. Pahari produced the office copy of the insurance policy that would tally the vehicle number. Hence, the Insurance Company was not entitled to avoid the liability. However, in view of the fact that the owner did not prefer any appeal from the decision of the Tribunal that question is superfluous. Mr. Banik contended that Insurance Company could not avoid the liability as by the policy of insurance it indemnified the owner from any unforeseen liability including the one caused by any accident. The subject vehicle was admittedly responsible for the accident that caused death of the victim. Hence, the Insurance Company was obliged to make payment of the compensation. Mr. Banik contended that Insurance Company could not avoid the liability as by the policy of insurance it indemnified the owner from any unforeseen liability including the one caused by any accident. The subject vehicle was admittedly responsible for the accident that caused death of the victim. Hence, the Insurance Company was obliged to make payment of the compensation. To support his contention he relied on the following decisions : i) 1998 Accidents Claims Journal Page-1 (Ved Prakash Garg VS- Premi Devi and Ors.) ii) 2000 Accident and Compensation Cases Page-326 (Supreme Court) (M/s. L.R. Ferror Alloys Ltd. VS- Mahavir Mahto and Anr.) iii) 2009 Accidents Claims Journal Page-115 (Kamla Chaturvedi VS- National Insurance Co. Ltd. and Ors.) Mr. Pahari learned counsel appearing for the Insurance Company on the other hand relied on the following decisions:- i) 2006 Volume-V Supreme Court Cases Page-192 (New India Assurance Co. Ltd. VS- Harshadbhai Amrutbhai Modhiya and Anr.) ii) 2006 Volume-V Supreme Court Cases Page-200 (P.J. Narayan VS- Union of India and Ors.) Mr. Pahari also relied on Division Bench decision of this Court in the case of Sukro Munda Vs. National Insurance Company Ltd. and Anr. reported in 2011 Volume-III West Bengal Law Reporter (Calcutta) Page-594 where the Division Bench considered the earlier decisions on the issue and came to conclusion that in a case under Workmen's Compensation Act, 1923 the primary responsibility to pay compensation would lie on the owner. The policy of insurance being an agreement between the insurer and the insured, would only help the owner to recover and/or get reimbursed the compensation amount from the Insurance Company. Their Lordships considered the decision in the case of Ved Prakash Garg (Supra), L.R. Ferror Alloys Ltd.(Supra), Harshadbhai Amrutbhai Modhiya (Supra). We have carefully perused the decision of the Division Bench referred to above. We do not find any scope of disagreement. 3. UNDER the Workmen's Compensation Act, 1923 in case any employee sustains any injury in course of employment he is entitled to compensation from his employer and in case of death the heirs are entitled to compensation from the employer. Such statutory obligation of the 6 employer could not be by-passed and/or avoided by any private agreement between the employer and the Insurance Company. Such statutory obligation of the 6 employer could not be by-passed and/or avoided by any private agreement between the employer and the Insurance Company. The policy of insurance is an agreement between the insurer and the insured where the insurer indemnifies the insured against any liability that he might incur in view of an eventuality specified under the said policy of insurance. In the instant case, the victim was a driver under the owner. He died at the accident while driving the vehicle belonging to the owner. Hence, he would squarely come within the scope of Workmen's Compensation Act, 1923 and, thus, the employer would be liable to pay such compensation. In the case in hand, the Tribunal assessed the compensation and directed the owner to pay. The owner accepted such decision. Hence, there was no scope of disagreement on that score. Lot was said on the provisions of Motor Vehicles Act, 1988. We are of the view that under the said Act of 1988 any owner plying vehicle on road is obliged to have an insurance covering the risk of third party who might be victim of any accident caused by such vehicle. Such liability of the third party so protected under the said Act of 1988 could not be equated with a claim made under the Workmen's Compensation Act, 1923 where the victim receives injury while working for the employer. Such primary liability under the Workmen's Compensation Act, 1923 is a statutory liability that cannot be avoided. In the case of L.R. Ferror Alloys Ltd. (Supra) and Ved Prakash Garg (Supra) question arose as to what extent the Insurance Company would be liable to reimburse the insured in a claim made under Workmen's Compensation Act, 1923. Would it be only the principal amount or penalty and interest as well Mr. Banik tried to contend that once the Apex Court decided that Interest and penalty would also be a part of the liability, the Tribunal should not have absolved the Insurance Company from the liability. This question could be considered by us in an appeal by the owner. The owner did not make any grievance. Banik tried to contend that once the Apex Court decided that Interest and penalty would also be a part of the liability, the Tribunal should not have absolved the Insurance Company from the liability. This question could be considered by us in an appeal by the owner. The owner did not make any grievance. If we look to paragraph 6 of the decision in the case of Kamla Chaturvedi (Supra), we would find observation of the Apex Court "In that view of the matter contracting out so far as reimbursement of the amount of interest is concerned is not prohibited by a statute. "This decision also considered P.J. Narayan (Supra) and Harshadbhai Amrutbhai Modhiya (Supra). None of the decisions cited by Mr. Banik decided the issue germane before us. Rather we get a positive answer from Harshadbhai Amrutbhai Modhiya (Supra). In paragraph 24 of this decision the Apex Court observed:- "unlike the claim of the Motor Vehicles Act, the Workmen's Compensation Act does not confer a right on the claimant for compensation under that Act to claim the payment of compensation in its entirety from the insurer himself. The entitlement of the claimant under the Workmen's Compensation Act is to claim the compensation from the employer. As between the employer and the insurer, the rights and obligations shall depend upon the terms of the insurance contract." 4. IN our view, the Tribunal rightly held the owner primarily liable for payment of compensation that does not deserve any interference. We however feel that the Tribunal erred in not awarding any interest on the awarded sum. We hold that the awarded sum would carry interest at the rate of twelve per cent per annum on and from the date of making of the application until payment. The appeal thus succeeds in part and is allowed accordingly to the extent as above. There would be no order as to costs. Urgent Photostat copy will be given to the parties, if applied for.