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2016 DIGILAW 2024 (HP)

Oriental Insurance Company v. Padmo Devi

2016-09-20

DHARAM CHAND CHAUDHARY

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. This judgment shall dispose of both appeals arising out of award dated 28.3.2007 passed by learned Commissioner under Workmen's Compensation Act, Rajgarh, District Sirmour in case No. 4 of 2005. The appellant in this appeal is Oriental Insurance Company Limited, hereinafter referred to as respondent No. 2-the Insurer, whereas in the connected one the owner of ill fated pick-up bearing No. HP-16-1349, hereinafter referred as respondent No. 1-insured. Learned Commissioner below has allowed the claim petition filed by respondent No. 1 (hereinafter referred to as the petitioner) and awarded a sum of Rs. 4,48,000/- as compensation against respondent No. 2 and a sum of 1,07,520/- towards interest payable on the awarded amount @12%. Besides a sum of Rs. 67,200/- has been awarded as penalty @ 15% of the amount of compensation i.e. Rs. 4,48,000/-. The amount of interest and penalty as imposed has to be paid by respondent No. 1, the insurer. Therefore, while respondent No. 2 aggrieved by the award to the tune of Rs. 4,48,000/- made by learned Commissioner against it, respondent No. 1-Insurer is aggrieved by the liability to pay interest @12% on the awarded amount and also the penalty amount i.e. Rs. 67,200/- awarded against him. 2. The challenge to the award by the Insurer-respondent No. 1 is on the sole ground that deceased Mangat Ram was not travelling in the ill fated pick-up in the capacity of a workman and rather a passenger. The complaint, therefore, is that there being breach of the insurance policy the insurer is not liable to indemnify the insurer in the matter of payment of compensation as awarded. 3. On the other hand the grouse of the Insurer-respondent No. 1 is that he is neither liable to pay the amount of interest @12% as awarded nor the penalty of Rs. 67200/- is imposed upon him. 4. Admittedly Mangat Ram is the son of petitioner-claimant Padmo Devi. On 20.4.2005 he was travelling in pick up bearing No. HP-16-1349. The vehicle met with an accident near Neri Pul under the jurisdiction of police Station, Rajgarh. Its driver Shri Balbir Singh and deceased Mangat Ram succumbed to the injuries they received in the accident. 5. The averments in the claim petition reveal that deceased was 20 years of age at the time of his death in the accident and he was working as cleaner/labourer. Its driver Shri Balbir Singh and deceased Mangat Ram succumbed to the injuries they received in the accident. 5. The averments in the claim petition reveal that deceased was 20 years of age at the time of his death in the accident and he was working as cleaner/labourer. His wages have been claimed as Rs. 4000/- per month. 6. In reply to the petition filed on behalf of first respondent it has been admitted that deceased Mangat Ram was working as cleaner with the ill fated vehicle. His wages Rs. 4000/- per month has also been admitted as correct. The respondent No. 1-Insurer has however, contested the petition on the grounds, inter alia, that insurer-respondent No. 1 has never lodged any claim for the payment of compensation under Workmen Compensation Act and that as per the investigation got conducted through Shri Phool Prakash Bakshi an investigator though Mangat Ram was found to have died in the accident, however, he was travelling in the vehicle un-authorisedly. The vehicle allegedly was being used to carry passengers in violation of the terms and condition of the Insurance Policy. On merits, it is denied that deceased Mangat Ram was working as Cleaner or labourer and his wages was Rs. 4000/- per month. 7. On the pleadings of the parties, following issues were framed in this petition: 1. Whether the deceased Mangat Ram was a workman within the definition of "workman" under the Workmen's Compensation Act? OPP 2. Whether the deceased died during the course of his employment with the respondent No. 1 Subhash? OPP 8. Both issues were answered in favour of the petitioner-claimant and consequently, she has been awarded the compensation as pointed out at the outset. 9. This appeal has been admitted on the following substantial question of law: Whether in the face of Insurance Policy Ext. RW- 1/A which does not cover the risk of any passenger and is specifically issued for Goods Carrying Vehicle the Commissioner can competent to award the amount of compensation against the appellant? 10. 9. This appeal has been admitted on the following substantial question of law: Whether in the face of Insurance Policy Ext. RW- 1/A which does not cover the risk of any passenger and is specifically issued for Goods Carrying Vehicle the Commissioner can competent to award the amount of compensation against the appellant? 10. The connected appeal has been admitted on the following substantial questions of law: (I) Whether in view of the fact that the factum of death of the deceased on 20.4.2005 came into the notice of the Insurance Company on 23.4.2005 when the owner of the vehicle was asked to perform necessary formalities in connection with payment of loss of vehicle and in connection with payment of amount of compensation, therefore, the appellant was not required to deposit any amount with the Commissioner? (II) Whether the liability of payment of penalty as imposed upon the appellant is snot supported by reasons and the appellant was not required to make any deposit because no delay is attributable to him in informing the Insurance Company? 11. The substantial question of law as formulated in this appeal is proposed to be taken first for adjudication. The claim of the Insurer-respondent No. 2 that deceased Mangat Ram was travelling un-authorisedly and as such was a gratuitous passenger is not supported by cogent and reliable evidence. The lengthy cross-examination of respondent No. 1 while in the witness box as RW1 conducted on behalf of respondent No. 2 amply demonstrate that deceased Mangat Ram was engaged as Cleaner with ill fated pick-up and his wages Rs. 4000/- per month. The statement of RW1 in cross-examination, therefore, remained un-shattered. Even in reply to the petition also his stand is that the deceased was working as cleaner and his wages was Rs. 4000/- per month. The only witness RW2-3 ASI Chaman Lal who has conducted the investigation of the case registered vide FIR Ext.PW1/A has admitted in his cross-examination conducted on behalf of the petitioner that in the investigation he conducted it transpired that deceased Mangat Ram was working as cleaner and was also doing loading/un-loading work. No doubt, RW2-1 V.S. Dadwal A.O. of respondent No. 2 has stated that deceased was travelling un-authorisedly in the ill fated vehicle, however, the statement so made by him based upon the report of Phool Prakash Bakshi investigator RW2-2. No doubt, RW2-1 V.S. Dadwal A.O. of respondent No. 2 has stated that deceased was travelling un-authorisedly in the ill fated vehicle, however, the statement so made by him based upon the report of Phool Prakash Bakshi investigator RW2-2. The testimony of RW2-1 is, therefore, not of much help to the case of the Insurer-respondent No. 2. If the statement of Phool Prakash Bakshi is seen the report Ext.RW2-2/A he made is not suggestive of as to who informed him that deceased Mangat Ram was travelling unauthorisedly in the ill fated pick up. The person if any he associated during the course of inquiry he has not maintained any record such as their statements and rather as per his own version in cross-examination he has not taken signature of any such person from whom he made the inquiry. In such a situation, much reliance cannot be placed on the testimony of this witness and also the report he submitted. Learned Commissioner below has, therefore, appreciated the evidence available on record in its right perspective while arriving at a conclusion that deceased Mangat Ram was travelling in the ill fated pick up in the capacity of workman and not un-authorisedly. The finding that said Mangat Ram has died during the course of his employment with the Insurer-respondent No. 1 are also legally sustainable. The claim of insured-respondent No. 2 is as such neither legally nor factually sustainable. 12. If coming to the substantial question of law as formulated in the connected appeal, the liability to pay the interest is that of the Insurer. Therefore, the interest @12% on the amount of compensation could have not been awarded against the insured-respondent No. 2. I can draw support in this regard from the judgment of Hon'ble Apex Court in Ved Prakash Garg v. Premi Devi and others, AIR 1997 SC 3854 relied upon by this Court also in a recent judgment dated August 31, 2016, FAO(WCA) No. 160 of 2009, titled the Oriental Insurance Company v. Smt. Deno & ors. However, the amount of penalty i.e. Rs. 67,200/- is to be paid by the insured-respondent No. 1 in terms of the provisions contained under Section 4-A(3)(b) of the Act. The ratio of the judgment ibid in Ved Prakash's case supra can be applied in this case qua this aspect of the matter also. However, the amount of penalty i.e. Rs. 67,200/- is to be paid by the insured-respondent No. 1 in terms of the provisions contained under Section 4-A(3)(b) of the Act. The ratio of the judgment ibid in Ved Prakash's case supra can be applied in this case qua this aspect of the matter also. As per the ratio of the judgment of the Apex Court in Ved Prakash Case supra it is the Insurance Company liable to pay the compensation with interest thereon from the date of accident till the date of payment. Even the Apex Court has also held that the amount of penalty is payable by the insured and not by the insurer. 13. In view of what has been said herein above, this appeal fails and the same is accordingly dismissed. The connected appeal succeeds partly and the same is accordingly allowed. Consequently, the award under challenge is modified to the extent that amount of interest i.e. Rs. 1,07,520/- on the awarded amount @12% in terms of the award shall be payable by the Insurer-respondent No. 2. The Insurer-respondent No. 2 to deposit this amount within two months from today before learned Commissioner below. The amount of interest i.e. Rs. 1,07,520/- if already deposited by the insured before learned Commissioner below be refunded to him together with interest up to date by remitting in his account particulars whereof to be furnished by him before learned Commissioner below. 14. Both appeals stand disposed of. Pending application(s), if any, shall also stand disposed of.