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2018 DIGILAW 710 (KER)

Pathukutty M v. Abdurahiman V P (Died)

2018-09-05

ANNIE JOHN, K.HARILAL

body2018
JUDGMENT : K. Harilal, J. 1. The appellants are the applicants in W.C.C. No. 50/2009 on the files of the Commissioner for Workmen's Compensation, Palakkad. They are the mother and brother of the deceased V. P. Irshad, who died in a motor traffic accident. The aforesaid application was filed under Section 22 of the Workmen's Compensation Act, 1923, seeking an order directing the 2nd respondent/insurer herein to pay compensation to the appellants for the death of the deceased. 2. The case of the appellants is that the deceased V. P. Irshad was a workman employed by the 1st respondent as driver in his Tavera Turbo Car. On 10/07/2007 while the deceased was driving the above said car from Kottukara to Coimbatore, when the car reached at Kothagiri-Mettupalayam road, suddenly a bison crossed the road, and he could not turn the vehicle; but he applied the brake suddenly. Consequently, Irshad lost his control over the vehicle and it fell down from the road and he suffered severe injury on his head and died at the spot. The monthly wages of the deceased was Rs.6,000/- and he was aged 22 years at the time of the accident. At the time of accident, the vehicle had insurance coverage under the policy issued to the 1st respondent, by the 2nd respondent. The appellants claimed a lumpsum of Rs.8 lakhs as compensation from the 2nd respondent. 3. The 2nd respondent/insurer filed a written statement admitting the e coverage of insurance policy, but denied the employer-employee relationship between the 1st respondent and the deceased. The deceased Irshad is the son of 1st respondent/owner. So he was not paid any wages by the 1st respondent. Since there was no employer-employee relationship, 2nd respondent is not liable to indemnify the 1st respondent. 4. The application was admitted on to the files and proceeded with trial, Thereafter, the 1st applicant has sworn to chief affidavit and she was cross-- gmined by the learned counsel appearing for the 2nd Respondent. Exts.AI to A8 were also produced and marked from the part of the 2nd respondent. 5. While so, the first respondent/owner died. 4. The application was admitted on to the files and proceeded with trial, Thereafter, the 1st applicant has sworn to chief affidavit and she was cross-- gmined by the learned counsel appearing for the 2nd Respondent. Exts.AI to A8 were also produced and marked from the part of the 2nd respondent. 5. While so, the first respondent/owner died. Then the appellants filed a petition to remove the 1st respondent from the party array, for the reason that Ist respondent expired and the applicants are the legal heirs of the deceased respondent/owner, who are liable to be impleaded as opposite party, according to them, since the legal heirs of the 1st respondent are none other the applicants and they are already in the party array as applicants, nobody need be impleaded in the application. No counter statement has been filed against said application filed by the appellants herein. 6. However, the Commissioner heard both the appellants and the 2nd respondent. After hearing, the Workmen's Compensation Commissioner dismissed the application on a finding that "the 1st opposite party is no more, but no application was filed by the appellants to implead the legal heirs of the deceased 1st respondent and had they impleaded the legal heirs, the applicants themselves would have been the opposite parties also. A party cannot be an applicant and the opposite party at a time. Since nobody has been impleaded as legal heirs of the deceased 1st respondent, the claim has abated". For the aforesaid finding the Commissioner for Workmen's Compensation dismissed the application. Though the 2nd respondent/Insurance Company disputed the employer-employee relationship, the Commissioner for Workmen's Compensation rejected this contention and found that there was an employer-employee relationship between the 1st respondent/owner and the deceased Irshad. The legality and correctness of the aforesaid findings, whereby the Commissioner for Workmen's Compensation dismissed the application as abated are challenged in this appeal. 7. Heard the learned counsel appearing for the applicants and the learned counsel appearing for the respondents. 8. The question that emerges for consideration is, can a claim for compensation covered by an insurance policy issued under the Motor Vehicle Act, 1988 be abated by the death of the insured, in the absence of the legal representative of the deceased insured in the party array. 9. Admittedly the insurance policy has been issued under Chapter X and XI of the Motor Vehicles Act, 1988. 9. Admittedly the insurance policy has been issued under Chapter X and XI of the Motor Vehicles Act, 1988. Therefore, even though the application seeking compensation has been filed under the Workmen's Compensation Act before the competent authority, the rights and liabilities under the insurance policy are governed by the relevant provisions of the Motor Vehicles Act, as the policy was issued under Chapter X and XI of the Motor Vehicles Act, 1988. Consequently. Section 155 of the Motor Vehicles Act would come into operation, on the death of the insured, after the accident. So it is apposite and profitable to go through the said provision, which is extracted below: 155. Effect of death on certain causes of action.- Notwithstanding anything contained in Section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer. 10. On an analysis of the above Section, it could be seen that the death of a person in whose favour certificate of insurance has been issued, shall not be a bar to the survival of any cause of action arising out of the accident against his estate or against the insurer, if the death occurs after the accident. Therefore, the cause of action arising out of the accident would survive against the insurer, despite the death of the insured, if his death occurs after the accident and the accident is covered by the policy. Put it differently, the claim for compensation can never be abated by the death of the insured, against the Insurance Company/ insurer, despite the absence of the legal representatives of the insured in the party array, if his death occurs after the accident, provided the policy is valid and covers the accident .Since there is no abatement in law, even if the legal representatives of the deceased insured are not brought on record, their absence in the party array would not cause the claim to be abated and the insurance company cannot be absolved from the liability. 11. 11. The above finding is fortified by Rule 41 of the Workmen’s Compensation Rules 1924.It is pertinent to note that Order XXI of the Civil Procedure Code is consciously excluded in Rule 41 Workmen’s Compensation Rules 1924. The aforesaid exclusion gives rise to an inference that the legislature deliberately excluded Order XXII of CPC to make it sure that in a proceedings for compensation initiated under the Workmen's Compensation Act, the death of the employer/ insured shall not create a bar against the claim for compensation against the Insurance Company; on the death of the insured/owner. 12. In the above view, we find that the claim cannot be abated against the 2nd respondent/Insurance Company, by the death of the 1st respondent, since the applicants alone are the legal heirs of the deceased 1st respondent and they would stand in the party array, as applicants. In the result, the impugned order is set aside and the application would stand restored on to the files of the Commissioner for Workmen's Compensation. The Commissioner for Workmen's Compensation, Palakkad is directed to proceed with the said application and dispose of the same, within a period of three months from the date of receipt of a copy of this judgment. 13. The parties are directed to appear before the Commissioner for Workmen's Compensation on 20th December, 2018. The appeal is allowed as above