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2017 DIGILAW 2596 (RAJ)

Oriental Insurance Company Limited v. Nem Singh

2017-11-27

INDERJEET SINGH

body2017
JUDGMENT : Inderjeet Singh, J. The instant appeal has been filed by the appellant against the judgment dated 29.11.2011 passed by the Commissioner Workmen's Compensation, Jaipur-II, Jaipur in case no. W.C.C./NF/107/2008. 2. The brief facts of the case are that the claimant filed a claim petition under Workmen's Compensation Act, 1923 before the Commissioner Workmen's Compensation, claiming compensation on account of injuries sustained by him in a road accident during the course of his employment. In the claim petition, the claimant stated that he was engaged vehicle no. RJ-14-IG-4022 of the opposite party no. 1 & 2 and on 06.05.2007, the aforesaid vehicle met with an accident on account of which he sustained serious injuries on different parts of his body making him permanently disabled, and unemployable for all times in future. He prayed for Compensation of Rs. 7,00,000/-. 3. The appellant-Insurance Company filed reply to the claim petition and stated that the claimant has not sustained injuries during the course and arising out of the employment. Therefore, the Insurance Company was not liable to pay the compensation. The objection regarding violation of policy conditions was also taken. 4. The learned Workmen's Compensation Commissioner, Jaipur-II, Jaipur, vide award dated 29th November, 2011 allowed the claim and awarded a compensation of Rs. 5,27,880/- along with interest @ 12% per annum. 5. Counsel for the appellant submits that there was no relationship of employee and employer between the claimant and owner of the vehicle. It was submitted that the claimant had sustained 80% permanent disability according to the certificate issued by the Medical Board, whereas the Commissioner has wrongly awarded compensation for 100% loss of earning capacity on account of injuries sustained by the claimant. Counsel further submits that the vehicle in question was insured in the name of Mr. Vinod Kumar Goyal (respondent no.3), whereas the claimant was employed with respondent no.2 (Harish Kumar). Counsel further submits that on account of transfer of the vehicle, the Insurance Company is not liable to pay the compensation as there was no privity of contract between the appellant and the transfree claimant. 6. None present on behalf of the respondent-claimant despite service. 7. Heard counsel for the appellant. 8. Counsel further submits that on account of transfer of the vehicle, the Insurance Company is not liable to pay the compensation as there was no privity of contract between the appellant and the transfree claimant. 6. None present on behalf of the respondent-claimant despite service. 7. Heard counsel for the appellant. 8. I have considered the arguments raised by the counsel for the appellant regarding no relationship of employee and employer between the claimant and the owner of the vehicle is not acceptable in view of the finding of fact recorded by the Commissioner on issue no.1. The Hon'ble Supreme Court in the matter of Golla Rajanna and Ors. v. The Divisional Manager and Ors., reported in 2017 (1) SCC 45 in which para 10 has held as under:- 10. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court Under Section 30 of the Act. 9. The next contention raised by the counsel for the appellant regarding wrongful assessment of the loss of earning capacity by the claimant in the accident as 100% is also not acceptable in view of the fact that the claimant has produced the disability certificate issued by the Medical Board in his favour wherein the Medical has found 80% permanent disability to the claimant. The Commissioner after considering the disability certificate and also considering the serious injuries such as fracture in Pelvis and injury in Urinary Bladder sustained by the claimant held that in future on account of said injuries the claimant was functionally completely disabled from working as a driver. Thus, in my view the Commissioner has rightly held the loss of earning capacity to the tune of 100%. The Hon'ble Supreme Court in the matter of Pratap Narain Singh Deo v. Shrinivas Sabata and another, Reported in 1976 ACJ 141, wherein para no. 5 & 8 has held as under:- "5. Thus, in my view the Commissioner has rightly held the loss of earning capacity to the tune of 100%. The Hon'ble Supreme Court in the matter of Pratap Narain Singh Deo v. Shrinivas Sabata and another, Reported in 1976 ACJ 141, wherein para no. 5 & 8 has held as under:- "5. The expression "total disablement" has been defined in Section 2(i)(1) of the Act as follows: (1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement. It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: "The injured workmen in this case is carpenter by profession. By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as he work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of Part II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 41/2" below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established. 8. It was the duty of the appellant, under Section 4A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. 8. It was the duty of the appellant, under Section 4A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under Sub-section (2) of Section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no need to the respondent's personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement settling the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty." 10. The last contention raised by the counsel for the appellant regarding the vehicle was insured in the name of respondent no.3 (Vinod Kumar Goyal) whereas on the date of accident the claimant was under the employment of respondent no.2, (Harish Kumar) therefore, the Insurance Company is not liable to pay the compensation is also not acceptable in view of the fact that the vehicle was transferred and registered in the name of Harish Kumar with whom the claimant was working as driver. In my considered view it would not affect the case of the claimant whether on the date of accident the vehicle was in the name of respondent no.2 or in the name of respondent no.3. The fact that the vehicle was duly insured on the date of accident with the appellant-Insurance Company, therefore, the appellant-insurance company is liable to pay the compensation to the claimant under the Workmen's Compensation Act as has been held by the Hon'ble Supreme Court in the matter of Firdaus v. Oriental Insurance Company Ltd. & Ors. reported in 2017 (2) R.A.R. 113 (SC) wherein para 15 & 16, has held as under:- "15. reported in 2017 (2) R.A.R. 113 (SC) wherein para 15 & 16, has held as under:- "15. Section 157 of the Motor Vehicles Act, 1988 clinches the issue. Section 157 Sub-section (1) contains the deeming provision that "the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of this transfer." Sub-section (1), Section 157 which is relevant is quoted as below: 157. Transfer of certificate of insurance-(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. [Explanation.-For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance]. 16. In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No. HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether Defendant No. 1 was the owner of the vehicle on the date of the accident, or Defendant No. 4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the Defendant No. 1 or not, was unnecessary. 11. For the reasons recorded above, the appeal as well as stay application filed by the appellant stand dismissed.