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2012 DIGILAW 984 (RAJ)

United India Insurance Co. Ltd. v. Devli Bai

2012-04-18

VINEET KOTHARI

body2012
JUDGMENT 1. - The appellant-United India Insurance Company Udaipur is before this Court in the present appeal being aggrieved by the order dated 14.1.2011 passed by the Workmen Compensation Commissioner, Udaipur in WC Case No. 87/2010 - Smt. Devli Bai v. Rama Phosphate and Anr. 2. By the said order, the learned Workmen Compensation Commissioner determined the compensation of Rs. 7,13,960/- on account of death of husband of the present applicant Smt. Devli, widow of workman Sh. Chatarlal Rawat. In an ex-parte order against the present appellant-United India Insurance Company, it was held that the employer M/s. Rama Phosphates Limited and appellant-Insurance Company are jointly and severally liable to pay compensation of Rs. 7,13,960/-. 3. The death in question of workman took place at the business place of the respondent-employer and as per the provisions for payment of compensation provided under the Workmen Compensation Act, under Section 3 of the Act, which provides that liability to pay compensation shall be on the employer, the employer appears to have deposited a sum of Rs. 6,62,019/- with the said Commissioner on 15.12.2010 alongwith its application filed under Section 8(1) of the said Act alongwith prescribed Form No. A. In the said application, it was also stated that information with regard to the said accidental death as well as claim for reimbursement of such compensation has also been given to the appellant United India Insurance Company. 4. The appellant-Insurance Company appears to have remained absent before the learned Workmen Compensation Commissioner despite service of summons by him. It also appears from the record that the appellant Insurance Company moved an application under Order 9 Rule 13 C.P.C. for setting aside of said ex parte award which also came to be rejected vide order dated 9.3.2011 on account of absence of any representative on behalf of the appellant - Insurance Company vide order-sheet entry dated 9.3.2011. 5. The said Workmen Compensation Commissioner has also found that the appellant-Insurance Company was not only absent despite sendee of summons not only at the time of passing of order dated 14.1.2011 but also at the time of arguments on application under Order 9 Rule 13 C.P.C. filed by it. 5. The said Workmen Compensation Commissioner has also found that the appellant-Insurance Company was not only absent despite sendee of summons not only at the time of passing of order dated 14.1.2011 but also at the time of arguments on application under Order 9 Rule 13 C.P.C. filed by it. The Commissioner further found that the averments made in the said application were incorrect to the extent that after recording of evidence of the claimants on 6.1.2011, next date of hearing was recorded as 14.2.2011 and not as 14.1.2011 when the impugned order dated 14.1.2011 was passed. The Workmen Compensation Commissioner, therefore, found that the application under Order 9 Rule 13 C.P.C. for setting aside ex parte award dated 14.1.2011 also deserved to be rejected on these grounds. 6. Now the present appeal has been filed by the appellant being aggrieved by the impugned order dated 14.1.2011 by which it was jointly and severally held liable alongwith the respondent No. 2 employer M/s. Rama Phosphates Limited to reimburse the said claim of Rs. 7,13,960/- to the claimants. 7. The learned counsel for the appellant Insurance Company, Mr. Jagdish Vyas, vehemently submitted that no formal claim application was filed before the Workmen Compensation Commissioner; that the appellant-Insurance Company could not remain present before the Workmen Compensation Commissioner for the reasonable cause though no such cause has been shown before the Court and that while disposing of the application under Section 8 of the Act, which only provides for the distribution of compensation, the learned Workmen Compensation Commissioner could not have directed the appellant-United India Insurance Company to reimburse the said claim, though he fairly does not dispute the existence of insurance contract between the employer and the appellant-Insurance Company. 8. Having heard the learned counsel and upon perusal of the record and impugned order dated 14.1.2011, this Court is satisfied that no interference in the impugned order is called for in the present appeal. 9. The scheme of Workmen Compensation Act, 1923 which is now known as Employees' Compensation Act, 1923 since 2011 amendment, provides that the basic liability to pay compensation is on the employer. Section 3 of the said Act provides that if personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay the compensation in accordance with the provisions of this Chapter. Section 3 of the said Act provides that if personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay the compensation in accordance with the provisions of this Chapter. Section 4 of the Act provides for Schedule and quantum of compensation. Section 4A of the Act further provides for compensation to be paid when due and penalty for default. The said amount of compensation has to be paid as soon as it falls due, which falls due on the date of accidental death or injury. The penalty and interest is payable by the employer in the case of any default in payment of compensation due under the said Act within one month from the date it fell due as provided under Section 4A(3) of the Act. Section 5 of the Act provides for method of calculating wages, while Section 6 provides for any review on the application of the employer or employee for the computation of the wages by him under Section 5 of the Act. Section 7 of the Act talks of commutation of half-monthly payments and Section 8 of the Act provides for distribution of compensation. 10. Sub-section (1) of Section 8 provides that no payment of compensation in respect of an employee whose injury has resulted in death and no payment of a lump sum as compensation to an employee or a person under a legal disability shall be made otherwise than by deposit with the Commissioner and no such payment made directly by an employee shall be deemed to be a payment of compensation. Proviso to Section 8(1) however provides that in the case of a deceased employee, an employer may make to any dependant, advance payment on account of compensation of an amount equal to three months' wages of such employee and so much of such amount as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer. Sub-section (3) of Section 8 provides that receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him. Section 9 of the Act provides that the compensation shall not be assigned, attached or charged. Sub-section (3) of Section 8 provides that receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him. Section 9 of the Act provides that the compensation shall not be assigned, attached or charged. Section 10 which deals with notice and claim provides that no claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of occurrence of the accident or in case of death within two years from the date of death. 11. The remaining provisions of the Act talk of reports of fatal accidents and serious bodily injuries, medical examination, contracting, remedies of employer against stranger, insolvency of employer, compensation to be first charge on assets transferred by employer etc. 12. The Act nowhere provides that employer cannot directly pay such compensation to the workman or his dependent through the Commissioner. On the contrary, the Scheme of the Act appears to be provide quick relief to the workman in case of injury and dependents in case of death and primary liability to pay such compensation has been cast upon the employer himself who has to pay such compensation through the Workmen Compensation Commissioner and in emergent situation directly to the workman or his dependant and then obtain discharge receipt from the Commissioner in discharge of his liability under the Act. 13. The reimbursement by the Insurance Company is solely dependent on the insurance contract between the insured employer and the appellant-Insurance Company. Though liability to reimburse such compensation could have been disputed by the appellant-Insurance Company for alleged violation of insurance contract as such, but in the present case, the appellant-Insurance Company has chosen to remain ex pane before the learned Workman Compensation Commissioner for the reasons best known to it. Not only it remained absent during the original proceedings under Section 8(1) of the Act on 14.1.2011, but also appears to have remained absent while pursuing its own application under Order 9 Rule 13 C.P.C. for setting aside of ex parte award on 9.3.2011. 14. In such circumstances, it cannot be inferred that the.appellant-Insurance Company had any valid objection to the reimbursement of the claim of the workman. 14. In such circumstances, it cannot be inferred that the.appellant-Insurance Company had any valid objection to the reimbursement of the claim of the workman. No sufficient reason has been given for remaining absent and ex pane twice over. If a party chooses to remain ex parte before the Court of competent jurisdiction, it is bound to suffer an ex parte order. Once having suffered that, even if one chooses not to pursue its own application for setting aside of such ex parte order properly, such party has to thank itself for its conduct and consequences. 15. It is undisputed before this Court that the appellant-Insurance Company had insured contract with the respondent-employer under the Workmen Compensation Act, 1923, but no possible defence on which such liability to reimburse the claim could have been contested by the appellant-Insurance Company was canvassed before the Court below twice over. The contention of the learned counsel for the appellant-Insurance Company Mr. Jagdish Vyas that under Section 8(1) of the Act, the .appellant-Insurance Company could not have been held liable alongwith the respondent-employer is found to be contrary to the provisions of the Act and the provisions of Section 8(1) of the Act. The liability of Insurance Company to reimburse such compensation to the insured employer is independent and is based on insurance contract between the two parties. 16. Consequently, this Court finds no force in the present appeal and is liable to be dismissed. 17. Accordingly, the present appeal of the Insurance Company is dismissed. No order as to costs. A copy of this order be sent to the opposite party as well as the Workmen Compensation Commissioner, Udaipur forthwith.Appeal dismissed. *******