Madras High Court
Branch Manager, National Insurance ... vs Venkatan And B.R. Kumaresan on 19 February, 2008
Equivalent citations: (2008)3MLJ781
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT R. Banumathi, J.
1. Being aggrieved by the award of compensation of Rs. 78,827/- by the Deputy Commissioner of Labour, Salem, Insurance Company has preferred this appeal.
2. Relevant facts which are necessary for disposal of this appeal are as follows: The claimant was working as cleaner in Tempo TN 29 1445 owned by the second respondent. On 15.05.1995, the tempo was driven by driver Mr. Ycob. When the vehicle was proceeding from Olapetty to Karagapalli, near Kollavi P.S., the driver applied break all of a sudden, as a result of which, the vehicle capsized. Claimant sustained grievous injuries all over his body. Immediately after the accident, the claimant was admitted for treatment in Government Qrs. Hospital, Dharmapuri and then shifted to Bangalore St. John's Medical College, Hospital. Due to the accident, the claimant sustained crush injury in left forearm and he suffered 100% disability. The claimant was drawing wages at Rs. 2,000/- p.m. and was aged 19 years at the time of accident. The first respondent workman has filed petition under Section 22 of the Workmen's Compensation Act r/w Sections 3 and 4 of W.C. Act, claiming compensation of Rs. 1,37,500/- for the injuries sustained by him.
3. The second respondent employer has filed counter stating that the vehicle bearing registration No. TN 29 1445, was having valid insurance coverage with National Insurance under policy No. 501005/31/94/21/02003, which is a comprehensive policy and if any award is to be passed, the Insurance Company, has to indemnify the liability. The tempo driver Yacob had a valid driving licence at the time of accident and there was no violation of policy conditions and therefore, the Insurance Company is liable to indemnify the liability of the insurer.
4. Denying the age and income of the claimant, his employer and Insurance Company has filed counter stating that the first respondent claimant's age as 19 is not correct and as such, he was a minor and unfit to be employed as a cleaner. The Insurance Company is not liable to pay the compensation to the first respondent claimant.
5. Before the Deputy Commissioner/applicant examined himself as PW-1. Ex. A-1 to A-5 were marked. On the side of Insurance Company, Insurance Company has marked three documents Policy Conditions, Motor Claim Form and Driving licence. On the basis of evidence adduced by the parties, the Deputy Commissioner arrived at the conclusion that the first respondent claimant was a workman employed by the second respondent as a cleaner in the tempo T.N. 29 1445 and that he sustained injuries in an accident which arose out of and in the course of employment under the second respondent. Taking the minimum wages payable for cleaners and fixing the age of the first respondent claimant, the Deputy Commissioner has awarded compensation of Rs. 78,827/-. Pointing out that the tempo van had valid insurance for driver, cleaner and coolies, the Deputy Commissioner has held that the Insurance Company is liable to pay the compensation.
6. The learned Counsel for the appellant Mr. R. Sunil Kumar has submitted that the person who drove the vehicle had only the LMV licence and that the vehicle involved in the accident is a goods vehicle, which is a heavy vehicle and therefore, the person holding LMV licence was not authorized to drive the heavy vehicle and there was violation of policy conditions and therefore, Insurance Company is not liable to pay the compensation. In support of his contention that the Insurance Company is not liable to answer the claim for compensation, the learned Counsel for the appellant has placed reliance upon 2008 1 MLJ 869 (SC) New India Assurance Co. Ltd. v. Prabhu Lal.
7. The learned Counsel for the first respondent/claimant has submitted that the appellant/Insurance Company cannot escape from its liability to pay the compensation. It was further submitted that the claimant's right to claim compensation should not be defeated on technical grounds and the protection by way of beneficial legislation like Workmen's Compensation Act cannot be allowed to be defeated on technical grounds.
8. The learned Counsel for the second respondent, owner of the tempo, Mr. Raghavan has submitted that upon analysis of evidence, the Deputy Commissioner has arrived at factual finding that the vehicle involved is a light motor vehicle and the said factual finding cannot be interfered with. It was further submitted that the defences available under W.C. Act are not available to the appellant Insurance Company in a claim arising under M.V. Act.
9. Employment of the first respondent by the second respondent as cleaner is not in dispute. On 15.05.1995, the tempo van capsized, due to which the first respondent claimant cleaner, sustained grievous injuries. As is seen from Ex. A-5, Disability Certificate, his left hand below elbow was amputated and the disability is assessed at 70%. In his evidence, the first respondent/claimant has spoken about his employment and that the injury sustained by him arose out of and in the course of his employment under the second respondent on 15.05.1995. Based on the evidence of PW-1 and the documentary evidence, the learned Deputy Commissioner of Labour has recorded a factual finding that the first respondent/claimant was a workman under the second respondent and he was employed as cleaner in the tempo and that he sustained injuries in the accident, which arose in the course of his employment under the second respondent. The said finding based on appreciation of evidence is unassailable.
10. The appellant/Insurance Company mainly disputes its liability to pay the compensation. The plea of the Insurance Company is that the vehicle involved is a goods vehicle, whereas the driver of the tempo had only LMV licence and he did not possess valid driving licence to drive the goods vehicle/heavy goods vehicle and therefore, there was violation of policy conditions and hence, the appellant Insurance Company is not liable to pay the compensation.
11. The above contention of the Insurance Company is not sustainable either on law or on facts. In paragraph 26 of the order, referring to the admission of RW-1 and RW-2, the Tribunal held that the vehicle involved was a light motor vehicle, since the gross weight of the vehicle is only 5300 kgs., which is less than 6000 kgs. Admittedly, at the time of accident, the vehicle was empty. It is also admitted case that the driver Yacob had valid LMV licence till the year 2014 [as per evidence of Junior Assistant, Office of Regional Transport Officer, Krishnagiri]. The Deputy Commissioner has held that the facts of the case are similar to that of 1999 (2) TNCR 37 and held that the appellant is liable to pay the compensation. That tempo van involved is a Light Motor Vehicle and that the driver had valid LMV licence is yet another factual finding recorded by the Deputy Commissioner based on the evidence. It is not demonstrated as to how such factual finding suffers from substantial error.
12. Even assuming for the sake of arguments that the vehicle is heavy vehicle, the contention of the appellant Insurance Company that it is not liable to pay compensation as there was violation of policy condition is unsustainable. The learned Counsel for the respondent has submitted that the defences available to the Insurance Company under M.V. Act is not available under the W.C. Act whereby the claim of a workman is statutorily covered under the policy.
13. From Ex. A-4 policy, it is seen that for the driver and cleaner, as per statutory requirement under Section 147, premium of Rs. 30/- is paid. In other words, driver and cleaner are covered as per statutory requirement Under Section 147(2) of M.V. Act. The claimant is covered under Insurance Policy, for which premium of Rs. 15/- was paid for paid drivers/Workman No. I. Under Section 147 of Motor Vehicles Act in addition to covering Third Party risk, the Insurance Co. must also cover the risk for certain categories of employees mentioned in the Section, so as to meet the requirements of Workmen's Compensation Act, 1923. If the employer of a workman has insured his workman with the insurance co. and if the workman sustains bodily injury or death occurs in an accident arising in the course of the employment, the workman is entitled for compensation as per the limit and the insurance co. has only to indemnify the employer for the amount.
14. In the light of contentions, the main point falling for consideration is, when there was valid Insurance Policy covering the risk, whether the insurer is duty bound to satisfy the claim and whether, there was violation of policy conditions as alleged by the Insurance Co. to absolve itself from its liability.
15. The question, whether an insurer, while defending an action initiated under the Workmen's Compensation Act, 1923 is precluded from raising any defence as envisaged in under Sub-section (2) of Section 149 of the Motor Vehicles Act, 1988, came up for consideration before the Supreme Court in National Insurance Co. Ltd. v. Mastan, provisions of Motor Vehicles Act, 1988 vis-a-vis Workmen's Compensation Act, 1923 and after referring to various decisions the Supreme Court has held as under:
9. Both the 1923 and 1988 Acts are self-contained Codes. Subject to the provisions made in the later Act, Section 3 of the 1923 Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in terms of the provisions of the said Chapter. Section 4 of the 1923 Act provides for amount of compensation. Section 5 elucidates the method of calculating wages. Section 15-B(ii) provides that the 1923 Act shall apply if the persons have been sent for work abroad along with motor vehicles subject to the modifications mentioned therein.
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20. Right of appeal is a creature of statute. The scope and ambit of an appeal is terms of Section 30 of the 1923 Act and Section 173 of the 1988 Act are distinct and different. They arise under different situations. In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved. Therein what is required to be proved is that the workman suffered injuries or died in course of employment. The nature of compensation would be determined having regard to the nature of injuries suffered by the worker and other facts as specified in the Act. The findings of fact arrived at by the Commissioner for Workmen's Compensation are final and binding. Subject to the limitations contained in Section 30 of the 1923 Act, an appeal would be maintainable before the High Court; but to put the insurer to further disadvantage would lead to an incongruous situation.
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22. Under the 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act. If the driver of the vehicles has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accident Claims Tribunal, having regard to its rights and liabilities vis-a-vis the third person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of Reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts cannot enforce liabilities of the insurer under both the Acts. He has to elect for one.
16. When the Claimant having chosen the forum under the 1923 Act for the purpose of obtaining compensation against his Employer, the Insurance Company cannot now fall back upon the provisions of the 1988 Act therefor, to raise the defences available under M.V. Act, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by Section 143 thereof.
17. In Ved Prakash Garg v. Premi Devi, the Supreme Court after detailed consideration of the provisions for compulsory insurance, the provisions under Section 147, the provisions of the liability of the insurance company under Section 149 and the provisions of Section 4 of the Workmen's Compensation Act has held that while considering the claim petition under Workmen's Compensation Act, it is necessary to refer to the provisions of Motor Vehicles Act as the workmen suffered personal or bodily injury while they were working on motor vehicles of their employers. If they had suffered from any personal injuries during the course of and arising out of the employment while working in the factory premises of the employers or while carrying on their service obligations as employees at any other place under the instruction of the employers, the question of interaction of the Workmen's Compensation Act and the Motor vehicles Act would not arise and such claims for compensation would have squarely been governed only by the Workmen's Compensation Act.
18. The decisions of the Supreme Court in Ved Prakash Garg's Case and Mastan's Case would squarely bring out the manner in which the provisions of Workmen's Compensation Act and Motor Vehicles Act have to be construed having regard to the provisions of the Act. As noted earlier, in the present case, since premium was paid for the cleaner of the Tempo Van, the cleaner/injured workman is under insurance coverage. When premium has been paid so as to meet the requirements of Workmen's Compensation Act, is it not open to the insurance co. to raise the defence, which are available to it under Motor Vehicles Act pleading exoneration of its liability on the ground of breach of policy conditions. As the cleaner suffered personal injuries during the course of and arising out of employment, while he was discharging his service obligations, the compensation payable would be squarely governed by the provisions of Workmen's Compensation Act and the insurance co. cannot be absolved of its liability.
19. The decision relied upon by the learned Counsel 2008 (1) MLJ 869 SC (cited supra) is a case arising under M.V. Act and has no relevance to the contentious points raised in this appeal.
20. Since the cleaner is statutorily covered, the appellant Insurance Company is under statutory obligation to indemnify the insurer in respect of the compensation payable to the cleaner/workman. The contention of the appellant/Insurance Company seeking to exonerate itself from its liability is not sustainable. In the accident, claimant has sustained crush injury in his left forearm, due to which, his left side elbow was amputated. Assessing the percentage of loss of earning capacity as 70%, the Deputy Commissioner has awarded Rs. 78,627/- as compensation. The quantum of compensation awarded to the claimant is in fact very much on the lower side, though it is as per the statutory calculation. No question of law, much less substantial question of law is shown to be involved in this appeal. The appeal is devoid of substance and is bound to fail.
21. In the result, the order dated 03.05.2001 passed in WC 302/1995 on the file of the Commissioner for Workmen's Compensation, (Deputy Commissioner of Labour), Salem, is confirmed and the appeal is dismissed. No costs. The claimant is permitted to withdraw the compensation amount.