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2023 DIGILAW 410 (UTT)

New India Assurance Company Ltd. v. Vineeta

2023-07-21

PANKAJ PUROHIT

body2023
JUDGMENT : Pankaj Purohit, J. This is an appeal under Section 30 of The Workmen’s Compensation act, 1923, against the judgment and award dated 02.07.2010, passed by Deputy Labour Commissioner/Workmen’s Compensation Commissioner, Kumaon Region, Haldwani, District Nainital, in Workmen Compensation Case No. 27 of 2006, “Smt. Vineeta, w/o late Sanjeev Singh Vs. M/s. Bombay Verma Trading Corporation Ltd. & Others”. 2. As per the claim petition, the case of the respondent claimant as unfolded is that her husband deceased Sanjeev Singh was working as a Weilder with respondent no.3 and on 14.06.2006, when he was working in the establishment of respondent no.2 at about 09:30 AM, a tractor hit him, as a result of which, he sustained severe injuries over his head and body. He was rushed up to the Jawahar Lal Nehru District Hospital, Rudrapur, by the people present at the scene of occurrence, where on the same day, he succumbed to the above injuries. It has been stated in the claim petition by the respondent no.1 claimant that at the time of death the age of her husband was 25 years and was getting a salary of Rs.4000/- per month from his employer. She stated that death of her husband was caused during and in the course of his employment with respondent nos.2&3. She further alleged that even though, the information regarding the accident was in the knowledge of the respondent nos.2&3, no compensation was paid to her, by the respondent employers. With these averments, she filed claim petition before the Deputy Labour Commissioner, Kumaon Region, Haldwani, District Nainital/Workmen Compensation Commissioner and prayed for a sum of Rs.4,33,820/- as compensation with interest and penalty. 3. The claim was contested by the appellant Insurance Company as well as the respondent nos.2 and 3, by filing separate written statements to the claim petition. The respondent no.2 M/s Bombay Verma Trading Corporation Ltd., by filing his written statement mentioned that the deceased Sanjeev Singh was not employed with him, but was employed with the respondent no.3 M/s Teckmak Engineers and Contractors. 4. It was further contended by the learned counsel for the respondent no.2 that there were no relations of master and servant between the deceased and him and for that reason, the respondent no.2 was not liable for any accident, which did not take place in the premises of the respondent no.2. 5. 4. It was further contended by the learned counsel for the respondent no.2 that there were no relations of master and servant between the deceased and him and for that reason, the respondent no.2 was not liable for any accident, which did not take place in the premises of the respondent no.2. 5. The respondent no.3 M/s Teckmak Engineers and Contractors contested the claim by filing his written statement and admitted that deceased Sanjeev Singh was working on the fateful date i.e. 14.06.2006, in the establishment of respondent no.2 and at about 09:30 AM in the factory, he was hit by a tractor and due to the injury sustained in that accident, he succumbed to those injuries. The respondent no.3 admitted the employment, claim, date of accident and the salary he was getting on the date of accident. But, in the additional pleas, it was stated by him that the respondent no.3 was the contractor of the respondent no.2 and the deceased Sanjeev Singh was in employment with him as a Weilder and during the course of his employment, he died in the accident. It is further pleaded by him that the respondent no.3 has taken a Workmen Compensation Insurance Cover for his employees and workmen, from the appellant Insurance Company, which was valid w.e.f. 22.09.2005 to 21.09.2006 and the policy no. was 152900/41/05/00135; and if any amount is to be paid to the wife of the deceased employee Sanjeev Singh, it is only the appellant Insurance Company, which is liable to pay. 6. The appellant Insurance Company has also filed its written statement denying the claim petition in toto and further submitted that before filing the claim petition for compensation, no notice as contemplated under Section 10 of the Workmen’s Compensation Act 1923, was ever issued by the respondent-claimant to the Insurance Company. The Insurance Company further submitted that the respondent-claimant has to prove her case with cogent documentary evidence. The Insurance Company further submitted that the respondent-claimant has to prove her case with cogent documentary evidence. It is further submitted by the appellant Insurance Company in its written statement that the Insurance Company is only liable to make the payment of compensation in accordance with the terms and conditions of the policy, while the deceased Sanjeev Singh died on 14.06.2006, when he met with an accident with a tractor, which was not insured with the Company and therefore, the appellant Insurance Company was not liable to make any payment; the respondent-claimant should file claim petition under the provisions of the Motor Vehicle Act, against the owner of the tractor. 7. In order to prove its case before the learned Workmen’s Compensation Commissioner, the claimant got herself examined and on oath substantiated, the facts enumerated in the claim petition that her deceased husband Sanjeev Singh was working with the respondent no.3 as a Weilder, on 14.06.2006, while he was working in the establishment of respondent no.2, about 09:30 AM, suddenly a tractor hit him and consequently, he died as a result of injuries sustained in the said accident. She on oath also deposed that the age of her husband was 25 years at the time of accident and he was getting Rs.4,000/- per month from the respondent no.3. To prove the death of her husband, postmortem report and inquest report were also submitted by her. She further stated that her husband died during and in the course of his employment with the respondent no.3 and accordingly, she prayed for compensation to the tune of Rs.4,33,820/- alongwith interest @12% per annum. Nothing substantial could have been brought out from the witness the respondent-claimant, while appearing in the witness box. The respondent no.2 examined one Shri Amar Singh, S/o Late Shri Durga Singh, who deposed that the deceased was in employment with the respondent no.3 and the respondent no.3 used to do the work of weilding and fabrication with respondent no.2. He categorically stated that the deceased Sanjeev Singh was not working in his establishment, but, he was in employment with respondent no.3 M/s. Teckmak Engineers and Contractors. He further deposed that there was no relation of employer and employee between the respondent no.2 and the husband of respondent-claimant Sanjeev Singh, and any compensation, which the respondent-claimant was entitled to get, was the responsibility of respondent no.3 and appellant Insurance Company. 8. He further deposed that there was no relation of employer and employee between the respondent no.2 and the husband of respondent-claimant Sanjeev Singh, and any compensation, which the respondent-claimant was entitled to get, was the responsibility of respondent no.3 and appellant Insurance Company. 8. Respondent no.3 got examined one Shri Gulab S/o Shri Gobind Manaji Karale, who is sole proprietor of the respondent no.3 Ms. Teckmak Engineers and Contractors, who admitted in his evidence that the deceased Sanjeev Singh was working with him as a Weilder on 14.06.2006 and he died during and in the course of his employment, while working with respondent no.2 on the pipeline, while he was hit by a tractor and died of the injuries sustained by him. He admitted that the deceased was getting Rs.4,000/- per month as salary and in addition to that, he was also getting the dearness allowance. He had submitted the photocopy of the salary register of April 2006, May 2006 and June 2006, in which the name of the deceased was mentioned and the salary was also mentioned against his name, which was exhibited as Ext. Kha-1, Ext. Kha-2 and Ext. Kha-3 in the file of the learned trial court. The witness/proprietor of the respondent no.3 also had stated that he had taken a policy from the appellant Insurance Company, the number of which was also disclosed by him, as disclosed in his written statement. 9. Appellant Insurance Company also got examined Shri N.C. Durga Pal, S/o Shri H.C. Durga Pal, the Administrative Officer of the New India Insurance Company, Regional Office, Haldwani, as a witness, who admitted that there was a policy in existence on the date of accident with the respondent no.3 and the number of which was also reiterated by him. While admitting the existence of the policy, he further submitted that the Insurance Company is liable to the payment of the compensation, only under the terms and conditions of the policy. The policy holder always submitted the proposal form after reading and appreciating the terms and conditions of the policy and all the necessary particulars were submitted by him on his own hand and signing the same, was submitted to the Insurance Company. According to the witness of the Insurance Company, the proposal form, which was in original on record, the same was submitted by the respondent no.3 on 22.09.2005. According to the witness of the Insurance Company, the proposal form, which was in original on record, the same was submitted by the respondent no.3 on 22.09.2005. The witness N.C. Durga Pal further clarified that the policy, which was on record, did not cover the risk of employee or subordinate of any sub-contractor. This was also deposed by the witness of the Insurance Company that since, for the 12 workmen, the annual income was shown in the proposal of the policy one lakh rupees annually on that rate, the monthly salary of an employee of the respondent no.3 had come to 0694/-Rs. per month only and accordingly, the Insurance Company was liable to pay the amount of compensation only to the extent, which could be worked out on the salary of Rs.0694/- per month. 10. The learned Deputy Labour Commissioner, after hearing the counsel for the parties, allowed the claim petition and awarded the compensation working out it on the salary of the deceased at Rs.4000/-per month, as per the Schedule IV appended to Section 4 of the Workmen’s Compensation Act, alongwith interest @6% per annum, if the amount so awarded was not deposited by the respondent Insurance Company within a period of 30 days from the date of the judgment. 11. It is feeling aggrieved by the aforesaid judgment and award dated 02.07.2010, the appellant Insurance Company is before this Court, by filing the present appeal, as stated above. 12. It is vehemently contended by the learned counsel for the appellant Insurance Company that as per the terms and conditions of the policy, the salary of the deceased Sanjeev Singh comes to Rs. 0694/- per month, the learned Deputy Labour Commissioner committed illegality by awarding the compensation taking the salary of the workmen @ Rs.4,000/- per month and fasten the entire liability upon the appellant Insurance Company. 13. It is strenuously submitted by the learned counsel for the appellant that the liability of the company, come only to the extent which could be worked out at the salary Rs.0694/- per month, which is as per the terms and conditions of the policy. 14. 13. It is strenuously submitted by the learned counsel for the appellant that the liability of the company, come only to the extent which could be worked out at the salary Rs.0694/- per month, which is as per the terms and conditions of the policy. 14. The learned counsel for the appellant drew the attention of this Court to the terms and conditions of the Insurance Policy, entered into between Insurance Company and the respondent no.3 and argued that the liability of the Company could be only to the extent the salary shown by the employer while taking the policy. 15. I do not find any merit in the argument advanced on behalf of the appellant Insurance Company for the reason that the learned counsel for the appellant could not show to this Court from the terms and conditions of the Insurance Policy that the compensation which has to be awarded could be worked out only on the basis of salary shown by the employer at the time of taking policy. In this case, there is no dispute that the salary, which has been claimed by the respondent-claimant @Rs.4,000/- per month, being paid to her deceased husband from the respondent no.3, is admitted to respondent no.3 the employer and therefore, the learned Workmen Deputy Labour Commissioner was right in calculating the amount of compensation on the basis of the salary of Rs.4,000/- per month, as per the Schedule IV appended to Section 4 of the Workmen’s Compensation Act. 16. It is also brought to the notice of this Court by the learned counsel for the appellant that as per the Clause 8 of the policy, in case of dispute, the matter regarding quantum of the compensation, may be referred to the arbitration. This argument advanced on behalf of the appellant Insurance Company is also rejected, only for the simple reason that this argument could have been available to the appellant Insurance Company at the inception of the proceedings, which was launched before the Deputy Labour Commissioner in the year 2006 and at this belated stage of this appeal after so many years of the litigation, the same cannot be entertained. 17. In this view of the matter, this Court does not find any merit in the appeal and consequently, the appeal is dismissed. 18. Interim order, if any, is hereby discharged. 17. In this view of the matter, this Court does not find any merit in the appeal and consequently, the appeal is dismissed. 18. Interim order, if any, is hereby discharged. The amount of compensation, which is lying in the fixed amount, shall be given to the respondent-claimant, without any further delay alongwith interest accrued thereon. No order as to cost.