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2015 DIGILAW 828 (JHR)

National Insurance Company v. Janki Devi

2015-07-21

AMITAV KUMAR GUPTA

body2015
JUDGMENT : AMITAV KUMAR GUPTA, J. 1. This appeal has been preferred against the order dated 08.07.2010 passed by Presiding Officer, Labour Court, Hazaribagh-cum-Commissioner in W.C. Case No. 07/2006, whereby the appellant-National Insurance Company Ltd. was directed to pay the compensation of Rs. 3,25,365/- to Respondent No. 1 with interest @ 6% from the date of institution till recovery and if the amount was not paid within two months from the date of award the appellant-Insurance Company Ltd. shall be liable for paying penal interest @ 12% from the date of order/award till the date of payment. The brief facts of the case is that the deceased, Satyendra Kumar Gupta was employed as a mechanic with Maa Chhinamastika Automobiles. That in course of duty, on instruction of the employer, the deceased was going to Ramgarh and was riding Bajaj motorcycle bearing No. JH-02D-7779 belonging to the employer. That the motorcycle was hit by a trekker due to which he sustained injuries resulting in his death. 2. The learned trial court had framed three points for determination, thereafter on the basis of material evidence available on record it held that the deceased was an employee of Sri Rajesh Kumar, owner and proprietor of Maa Chhinamastica Automobile/O.P. No. 1 and he died in course of employment. That the vehicle was duly insured with the appellant-Insurance Company, as such the owner was liable to pay the compensation but since the O.P. No. 2/Insur-ance Company was the insurer thus in terms of the insurance policy he was liable to indemnify the owner, accordingly, the appellant-Insurance Company was directed to pay the said compensation. 3. Learned counsel for the appellant-Insurance Company has submitted that the impugned order was passed solely on the basis of the insurance policy i.e. Ext.-3, which was produced in the court below. It is submitted that in terms of the insurance policy the insurer was liable to indemnify the owner only for the purposes of damages to the motorcycle to the extent of Rs. 1,00,000/- (one lakh) and there is no liability to pay the compensation under the Workmen Compensation Act, upon the Insurance Company. In support of his contention he has also referred to the provisions of Sections 146 & 147 of the M.V. Act. 1,00,000/- (one lakh) and there is no liability to pay the compensation under the Workmen Compensation Act, upon the Insurance Company. In support of his contention he has also referred to the provisions of Sections 146 & 147 of the M.V. Act. It is argued that had the claimants filed the claim under Motor Vehicle Act, the Insurance Company could have been held liable but in the instant case there is no material on record to fix and fasten liability upon the Insurance Company to pay the compensation. It is submitted that the deceased was not engaged as a driver rather he was sent by the employer on the motorcycle to fetch the keys from Ramgarh and in such circumstances the Insurance Company cannot be held liable to pay the compensation amount. 4. Learned counsel for the appellant-Insurance Company has also submitted that the award has already been deposited in the court below and the order with respect to penal interest may be modified. 5. Learned counsel for the respondent has submitted that the court below has discussed the evidence and has rightly held that the deceased died in course of employment. It is not disputed that he was engaged as a mechanic with Maa Chhinamastika Automobile and the owner asked him to fetch the keys from Ramgarh. It is evident that he was riding the motorcycle on the direction of the employer and he died on account of the motor accident in course of employment. Learned counsel for the respondent has relied upon the decision of the Hon'ble Apex Court in the case of Praveenbhai S. Khambhayata v. United India Insurance Company Ltd. and Others in Civil Appeal No. 1970 of 2015 arising out of SLP (C) No. 28265/2014. It is submitted that in paragraph No. 11 of the said judgment, it has been held that a cleaner who was employed in one vehicle but he was assigned by the owner for doing some work in another vehicle belonging to the owner and both the vehicles were insured by the same Insurance Company. It is submitted that in paragraph No. 11 of the said judgment, it has been held that a cleaner who was employed in one vehicle but he was assigned by the owner for doing some work in another vehicle belonging to the owner and both the vehicles were insured by the same Insurance Company. The deceased died on account of an accident involving the vehicle in which he was not an employee whereupon the Hon'ble Apex Court held that the person died in course of the employment and held that the provision of Section 147 of the M.V. Act is a beneficial legislation, hence the Insurance Company was liable to pay the compensation amount. 6. Heard. On perusal of the impugned judgment it is not disputed that the deceased was an employee of Maa Chhinamastika Automobile. He died in course of employment. The motorcycle of the employer/owner was insured with the National Insurance Company. In terms of Section 147 M.V. Act, at the relevant time he was engaged by the owner to drive the vehicle. Section 146 M.V. Act makes it mandatory for the insurer to cover the risk. Admittedly the deceased died in course of employment while performing the duty assigned by the employer. Section 147 M.V. Act does not define the type and nature of the vehicle rather the word vehicle is used in a broader sense and this includes two wheeler vehicle. The insurance policy is a contract whereby the insurer is liable to indemnify the owner for any liability in terms of the policy. In view of the provision of law the court below has rightly held that the employer to be liable to pay the compensation amount to the deceased, since the insurer was liable to indemnify the owner, therefore the liability to pay the compensation was fastened upon the Insurance Company. Accordingly the impugned order does not merit any interference by this Court. 7. Since the amount has already been deposited in the court below the part of the order directing the appellant to pay penal interest at the rate of 12%, is hereby set aside. It is made clear that the award shall be disbursed in terms of the order passed by the court below. 8. 7. Since the amount has already been deposited in the court below the part of the order directing the appellant to pay penal interest at the rate of 12%, is hereby set aside. It is made clear that the award shall be disbursed in terms of the order passed by the court below. 8. However, the conduct of the appellant in filing of the appeal and complying with the order of the learned lower court, has led to an uncalled for protraction in the litigation and the claimants were dragged to contest the case up to the High Court. Therefore the appellant is directed to make additional payment towards the cost of litigation to the tune of Rs. 15,000/- to the Respondent/Claimant. With the above direction the order of I the court below stands modified to the extent as noted above and the appeal stands disposed of.