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2018 DIGILAW 2118 (HP)

United India Insurance Company ltd v. Jasbir Kaur

2018-11-30

SURESHWAR THAKUR

body2018
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal stands directed, against, the award pronounced, by, the learned Commissioner, under, the Employees Compensation Act, 1923, Una, District Una, H.P., upon, ECA RBT No. 9/11.2008, whereunder, compensation amount constituted in a sum of Rs.2,36,950, along with interest, with effect, from 3.3.2002 to 25.4.2017, and, amounting to Rs.4,30,405/-, stood assessed, vis-a-vis, the successors-in-interest of deceased Dharam Pal. The apposite indemnificatory liability, was, fastened upon the insurer. 2. The instant appeal was admitted, on, 10.08.2017, on the hereinafter extracted substantial questions of law :- “1. Whether the owner/insured was entitled to claim indemnification of award amount, from insurer when insured vehicle at the relevant time of accident was plied by the driver without a valid driving licence and the insured vehicle which was registered and insured for agricultural purposes, but was plied for non agricultural purposes? 2. Whether vide the impugned award, liability of payment of interest on the compensation amount with effect from 3.3.2002 till 25.04.2017, which swelled to whopping Rs.4,30,405 was incorrectly fastened upon the insurer?” 3. The learned counsel appearing for the insurer/appellant herein, does not contest, the validity of the findings, rendered by the learned Commissioner, vis-a-vis, (a) the demise of one Dharam Pal, hence, occurring, during the course of his performing, his employment under his employer. The learned counsel appearing for the insurer/appellant herein, does not contest, the validity of the findings, rendered by the learned Commissioner, vis-a-vis, (a) the demise of one Dharam Pal, hence, occurring, during the course of his performing, his employment under his employer. However, the learned counsel appearing for the insurer, has contended, with much vigour before this Court, (i) that, the fastening of the apposite indemnificatory liability, upon, the insurer rather being grossly flawed, (ii) given, the, insurance cover embodied in Ex.RW3/C, and, in Ex.RW3/D, making trite display(s), qua the relevant offending vehicle, being issued under the farmer's package, (iii) thereupon, the ill-fated vehicle was enjoined to be plied, only, for agricultural purpose, (iv) whereas, with PW-3, the owner of the tractor concerned, during, the course of his cross-examination, acquiescing to a suggestion qua the tractor being deployed, with, a depot of, the, Indian Oil Corporation, hence for carrying debris in the trolley of the afore tractor, (v) thereupon, he contends, that, the afore manner, of, deployment, of the tractor, with, the depot of Indian Oil Corporation, and, with its, not, at the relevant time, obviously being deployed, for, the apt contracted agricultural operation(s), (vi) whereupon, breach of the terms, and, conditions of the insurance policy, also, making an evident surfacing, and, the fastening of the apt indemnificatory liability, upon, the insurer, was, hence grossly inapt. 4. Even though, the aforesaid submission, is, attractive on its facade, (a) but on an incisive and deeper reading, of, the testification, occurring in the cross-examination of PW-3, upsurgings hence erupt qua, it, rather omitting to unveil, the, trite factum, that, at the relevant time, in the trolley of the tractor, hence debris being carried therein or goods other than agricultural goods, rather being carried therein. Since, the test for determining, (b) qua whether at the relevant time, the apposite breach occurred, enjoined adduction, of, the afore firm evidence, (c) whereas, on an in-depth, and, incisive reading, of the cross-examination of PW-3, it rather not emerging, (d), qua at the relevant time, or at the time, of, occurrence of the ill-fated, mishap hence involving the tractor, rather it being loaded with debris or it therein carrying non agricultural goods, (e), thereupon, it cannot be concluded, that, there hence occurs any evident palpable breach of the terms and conditions, of, the insurance policy, nor it can be concluded, that, the fastening, of, the apt indemnificatory liability upon the insurer, was, wholly flawed and erroneous. 5. Furthermore, the learned counsel appearing, for the insurer, has proceed to contend before this Court, (i) that the levying of interest on the principal amount, by the learned commissioner, and, commencing from 3.3.2002 to 25.4.2017 also warranting interference, given (a) the claimants previously availing, a, purported mis-constituted remedy, hence, before the Motor Accident Claims Tribunal, and, thereafter theirs, as unfolded, by Ex.P-2,exhibit whereof, comprises an order rendered by the learned MACT concerned, (b) whereunder, the claimants were permitted, to withdraw, the MACP petition concerned, and, to avail the appropriate statutory remedy, (c) thereupon, for, the, afore omissions, on the part of the claimants, hence renders the afore levying of interest, upon, the principal compensation amount, and, ordered to commence from 3.3.2002 to 25.4.2017, being construable to be rather both unbefitting, and, in sagacious. The aforesaid submission, cannot be accepted, in view of the mandate, occurring, in Section 4A of Act, provisions whereof stand extracted hereinafter:- “4A. Compensation to be paid when due and penalty for default.- (1) Compensation under section 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim. (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent. per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent. of such amount, shall be recovered from the employer by way of penalty.” (a) whereunder, a, mandatory injunction, is, cast, vis-a-vis, levying, of, interest upon the principal compensation, hence being bestowable thereon, on one month elapsing, since the occurrence, and, uptil the date of deposit. The strict mandatory language, where within, the aforesaid mandate, is cast, hence, renders all its apt strictest rigor, and, without any deviations therefrom, rather being efficaciously complied, nor, the afore mis-endeavours, of, the claimants, rips, the effect, of, the statutorily entailed levying of interest, vis-a-vis, the compensation amount, rather, the apt levying falls in tandem therewith. Accordingly, substantial question(s) of law are answered in favour of the respondents, and, against the appellant. 6. For the reasons recorded hereinabove, there is no merit in the instant appeal, and, it is dismissed accordingly. Consequently, the award impugned before this Court is maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.